Kerala High Court
Sathyan Naravoor vs Union Of India on 8 December, 2016
Author: Anil K.Narendran
Bench: Mohan M.Shantanagoudar, Anil K.Narendran
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.MOHAN M.SHANTANAGOUDAR
&
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 13TH DAY OF FEBRUARY 2017/24TH MAGHA, 1938
WA.No. 76 of 2017 () IN WP(C).32130/2016
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AGAINST THE JUDGMENT IN WP(C) 32130/2016 of HIGH COURT OF KERALA
DATED 8.12.2016
APPELLANT/PETITIONER:
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SATHYAN NARAVOOR
SOUPARNIKA, NARAVOOR,
KOOTHUPARAMBU,
KANNUR DISTRICT.
BY ADV. SRI.GEORGE POONTHOTTAM
RESPONDENTS/RESPONDENTS:
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1. UNION OF INDIA,
REPRESENTED BY DEPARTMENT OF PERSONNEL & PUBLIC GRIEVANCES,
NEW DELHI.
2. THE SECRETARY TO GOVERNMENT,
MINISTRY OF HOME AFFAIRS,
NORTH BLOCK, NEW DELHI.
3. THE CENTRAL BUREAU OF INVESTIGATION,
REPRESENTED BY ITS DIRECTOR,
NEW DELHI.
4. STATEOF KERALA,
REPRESENTED BY THE CHIEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001
5. DR.JACOB THOMAS, I.P.S
DIRECTOR OF VIGILANCE AND ANTICORRUPTION BUREAU,
TRIVANDRUM-695001.
R1&2 BY ADV. SRI.KRISHNADAS P.NAIR, CGC
R3 BY SRI.P.CHANDRASEKHARA PILLAI, C.B.I.
R4 BY SRI C.P. SUDHAKARA PRASAD, ADVOCATE GENERAL
SR.GOVERNMENT PLEADER SRI P.NARAYANAN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 6.2.2017, THE COURT
ON 13-02-2017 DELIVERED THE FOLLOWING:
"CR"
MOHAN M.SHANTANAGOUDAR, CJ. & ANIL K.NARENDRAN, J.
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W.A.No.76 of 2017
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Dated this the 13th day of February, 2017
JUDGMENT
Anil K.Narendran, J.
This Writ Appeal arises out of the judgment of the learned Single Judge dated 8.12.2016 in W.P.(C).No.32130/2016. The appellant filed the said Writ Petition seeking a writ of certiorari to quash Ext.P3 Confidential Verification Report of the Vigilance and Anti Corruption Bureau (for brevity, the VACB) on the allegations made against the 5th respondent, who was the Managing Director of the Kerala Transport Development Finance Corporation (for brevity, 'the KTDFC') and a writ of mandamus commanding the Central Bureau of Investigation (for brevity, 'the CBI'), the 3rd respondent herein, to investigate and take action as mandated under law into the matters enquired and resulted in Ext.P3 Confidential Verification Report of the VACB. The appellant has also sought for a writ of certiorari to quash Ext.P11 communication dated 9.8.2016 of the Chief Secretary, Government of Kerala addressed to the Deputy Secretary W.A.No.76/2017 2 (Police), Ministry of Home Affairs, Government of India by which the Central Government was informed about the decision of the State Government that no further action is required on the complaint made against the 5th respondent.
2. Before the learned Single Judge, the learned Central Government Counsel has taken notice on behalf of the 1st and 2nd respondents, learned Standing Counsel has taken notice on behalf of the 3rd respondent CBI, and learned Advocate General has taken notice on behalf of the 4th respondent State. Notice was not issued to the 5th respondent at the stage of admission.
3. The reliefs sought for in the Writ Petition were opposed by the 4th respondent State by filing a detailed statement. The 3rd respondent has filed a statement through their retainer counsel opposing the reliefs sought for in the Writ Petition. The appellant/writ petitioner has also filed reply affidavit to the statement filed on behalf of the 4th respondent State.
4. After considering the rival contentions, the learned Single Judge by the impugned judgment dismissed the Writ Petition holding that the appellant/writ petitioner is not entitled W.A.No.76/2017 3 for the reliefs sought for in the Writ Petition.
5. Feeling aggrieved by the judgment of the learned Single Judge, the appellant/writ petitioner is before this Court in this appeal.
6. On 6.2.2007, when this appeal came up for admission, we heard arguments of learned counsel for the appellant/writ petitioner, learned Central Government Counsel for the 1st and 2nd respondent, learned retainer counsel for the 3rd respondent CBI and also learned Advocate General for the 4th respondent State.
7. The pleadings and materials on record would show that the 5th respondent, who is a member of All India Service (Kerala Cadre) is presently holding the post of Director General of Police in charge of Vigilance and Anti Corruption Bureau. The 5th respondent while working as Managing Director of the KTDFC submitted an application dated 10.12.2008 seeking leave for three months with effect from 5.1.2009 in order to complete writing of two research articles from the thesis done as part of his Doctoral programme in Human Resource Development, during the study leave granted as per G.O.(Rt.)No.4122/99/GAD. In the W.A.No.76/2017 4 said application, the 5th respondent has stated that he could not write the research articles earlier and the scientific work requires focused attention with extensive review of literature and discussion with academicians. As discernible from the said letter (which forms part of the enclosures to Ext.P1) a leave application in the prescribed format was also enclosed therewith. Based on the said request, by G.O.(Rt.)No.317/2009/GAD dated 31.3.2009, the 5th respondent was granted extraordinary leave for three months from 5.1.2009 or from the date of avail, subject to eligibility.
8. Seeking extension of leave for three months, in continuation of the leave already sanctioned, the 5th respondent made a request dated 25.5.2009 along with an application in the prescribed format. By G.O.(Rt.)No.5194/2009/GAD dated 20.7.2009 the 5th respondent was granted extraordinary leave for three months with effect from 6.6.2009, in continuation of the earlier leave granted, subject to eligibility.
9. According to the appellant, the 5th respondent while on leave had worked as the Director of T.K.M. Institute of W.A.No.76/2017 5 Management, Kollam and received a monthly remuneration of 1,69,500/-, through bank. While continuing as the Director of the Management Institute, the 5th respondent sought extension of leave for three months from 6.6.2009, vide his letter dated 25.5.2009.
10. The payment of such remuneration by the Management Institute and the matters related thereto were subjected to investigation by the Vigilance Wing of the State Police. It has come out during the enquiry that the 5th respondent had repaid the remuneration received from the Management Institute, though there is no document regarding the mode of repayment. The Confidential Verification undertaken by the VACB was closed by Ext.P3 mainly for the reason that the Management Institute, vide its letter dated 2.9.2011 has intimated that, since the 5th respondent had not received Government sanction to take up the post of Director, the Management relieved him from that post with effect from 31.8.2009 and the honorarium of 1,69,500/- per month received by the 5th respondent during his tenure as Director has been repaid by him.
W.A.No.76/2017 6
11. On coming to know about Ext.P3, the appellant submitted Ext.P4 representation before the Home Secretary, Department of Home, Government of India seeking interference in the matter and to take steps to initiate disciplinary proceedings against the 5th respondent after suspending him from service. In the said representation, the appellant has pointed out that, in the discrete enquiry conducted by the VACB it was revealed that the 5th respondent has committed criminal misconduct punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and the mere repayment of the illegal money collected will not absolve him from the criminal liability.
12. Relying on the provisions under Rule 13(1)(b) of the All India Service (Conduct) Rules (for brevity, 'the Conduct Rules') the appellant would contend that, the acceptance of other employment by the 5th respondent without previous sanction of the Government is a serious misconduct warranting imposition of major penalty under Rule 6 of the All India Service (Discipline & Appeal) Rules, 1968 (for brevity, 'the Discipline and Appeal Rules') following the procedure for imposing such penalty, as W.A.No.76/2017 7 contemplated under Rule 8 of the said Rules.
13. The appellant would also point out that, in relation to the very same incident, the State Government issued Ext.P5 show cause notice dated 27.1.2016 to the 5th respondent by which he was required to show cause, why disciplinary action as contemplated under the Discipline and Appeal Rules should not be taken against him in relation to the incident referred to therein. The appellant submitted Exts.P6 and P7 representations before the Home Minister and also the Secretary, Department of Personnel and Training, Government of India to take necessary action against the 5th respondent.
14. On receipt of such representations, the Ministry of Home Affairs addressed Ext.P8 letter to the State Government forwarding therewith the complaint made by the appellant against the 5th respondent, and the State Government was requested to take appropriate action in the matter and sent a suitable reply to him. Ext.P8 has been answered by the State Government in Ext.P9 communication dated 3.12.2015, stating that on the basis of the source information, the VACB conducted W.A.No.76/2017 8 a confidential enquiry and when the enquiry was in progress, the 5th respondent repaid the entire remuneration received from the Management Institute and hence no action has been recommended by the VACB. Hence it was decided that no further action is required on the complaint made by the appellant and the same was disposed of accordingly.
15. On receipt of Ext.P9 communication, the Ministry of Home Affairs, Government of India vide Ext.P10 letter requested the State Government to clarify as to why no disciplinary action has been taken against the 5th respondent under Rule 6 of the Discipline and Appeal Rules for violation of Rule 13(1)(b) of the Conduct Rules, which provides that no member of the All India Service shall, except with the previous sanction of the Government, undertake any other employment.
16. To Ext.P10 communication, the State Government issued Ext.P11 reply pointing out that, while the 5th respondent was on extraordinary leave with effect from 6.3.2009, he had applied for the post of Director of T.K.M. Institute of Management with a view to complete his research work in that Institute. He W.A.No.76/2017 9 was selected for the post and he provisionally took charge on 1.4.2009. The Management of the Institute had officially written to the State Government for allowing the service of the 5th respondent to be engaged as the Director. Since the Government have not issued sanction, the Management relieved the 5th respondent from that post. The amount received by the 5th respondent as honorarium was also remitted back by him to the Management Institute. Therefore, it was pointed out in Ext.P11 communication that, the proposal for initiating disciplinary action as per Rule 13(1)(b) of the Discipline and Appeal Rules has no locus standi as the action of the 5th respondent in having obtained the post of Director in the Management Institute and his remittance of honorarium to the Institute have been ratified by the State Government, after examining the matter in detail. Therefore, the Central Government was informed vide Ext.P11 communication that, the State Government have decided that no further action is required in this matter.
17. According to the appellant, the investigation conducted under the VACB was only an eyewash of an investigation by a W.A.No.76/2017 10 lower functionary as against an Inspector General of Police then. The appellant would also point out that, though show cause notice was issued to the 5th respondent for initiating disciplinary proceedings, further proceedings were dropped by Ext.P11 order, which is unjust and illegal.
18. As per Ext.P12 letter dated 27.12.2005 of the Department of Personnel and Training, Ministry of Personnel, Public Grievances and Pension, acceptance of employment by the 5th respondent without previous sanction of the Government is a clear violation of Rule 13(1)(b) of the Conduct Rules and as a matter of fact, the Central Government has alerted all officers under the State Government to obtain such prior permission of the Government before negotiating or undertaking any other employment. Therefore, according to the appellant, the action of the 5th respondent in accepting employment in TKM Institute of Management, without obtaining the previous sanction of the Government and receiving remuneration from that Institute will amount to criminal misconduct falling under Section 13(1)(d) of the Prevention of Corruption Act, 1988 punishable under Section W.A.No.76/2017 11 13(2) of the said Act. Therefore the mere repayment of the money obtained by illegal means will not absolve the 5th respondent from the criminal liability. Since there was no fair enquiry, the investigation has to be entrusted to an independent agency like the CBI for conducting a fair and impartial investigation in relation to the offence alleged against the 5th respondent, attracting the provisions of the Prevention of Corruption Act. In addition to this, it is contended that further proceedings pursuant to Ext.P5 show cause notice has to be taken against the 5th respondent.
19. Per contra, the 4th respondent State would contend that, the 5th respondent while holding the post of the Managing Director of the KTDFC applied for leave for completing the research papers as part of his doctoral studies. After obtaining extraordinary leave he worked as the Director in TKM Institute of Management and received monthly remuneration of 1,65,000/- without prior permission from the Government, in violation of Rule 13(1)(b) of the Conduct Rules. A Vigilance enquiry was ordered against the 5th respondent and a show cause notice was W.A.No.76/2017 12 issued based on the confidential enquiry. At this time, the 5th respondent remitted the remuneration so received from the Management Institute. In the Vigilance enquiry no action was recommended by the Director of VACB since the 5th respondent has remitted the amount to the Management Institute. Hence it was decided that no further action is required against the 5th respondent and the said position was intimated to the Government of India.
20. As per Ext.P10 letter dated 6.1.2016, the Central Government sought clarification as to why no disciplinary action has been taken against the 5th respondent, under Rule 6 of the Discipline and Appeal Rules, for violation of Rule 13(1)(b) of the Conduct Rules. Later, the State Government have examined the case with reference to the provisions of the Discipline and Appeal Rules, after obtaining explanation from the 5th respondent, and ratified the action of the said respondent in having remitted the remuneration to the Management Institute. Hence it was decided that no further action is required in the matter, which was duly intimated to the Central Government vide Ext.P11 communication W.A.No.76/2017 13 dated 9.8.2016.
21. Rule 2(g)(iii) of the Leave Rules define 'Government' to mean, in the case of a member of the All India Service serving in connection with the affairs of a State, the Government of that State.
22. Rule 15 of the Leave Rules deals with extraordinary leave. As per Rule 15(1), subject to the provisions of Rule 7, extraordinary leave may be granted to a member of the service in the special circumstances enumerated in clauses (a) and (b), i.e., when no other kind of leave is admissible; or when any other kind of leave is admissible but the member of the service applies in writing for the grant of extraordinary leave. Rule 16(3) provides that, the Government may retrospectively convert periods of absence without leave into extraordinary leave even when any other kind of leave was admissible at the time when absence without leave commenced.
23. Rule 21 of the Leave Rules deals with accepting any service or employment while on leave. As per Rule 21(1), a member of the service on leave shall not take any service or W.A.No.76/2017 14 accept any employment without obtaining the permission of the Government.
24. Rule 32 of the said Leave Rules, which deals with relaxation of the provisions of the said Rules in individual cases, provides that, where the Government is satisfied that the operation of any of these rules cause or likely to cause undue hardship to a member of the service, it may, after recording its reasons for so doing, and notwithstanding anything contained in any of these rules, deal with the case of such member in such manner as may appear to it to be just and equitable.
25. The specific stand taken by the 4th respondent State is that, while dropping the disciplinary proceedings by ratifying the action of the 5th respondent in taking up private employment, the State Government exercised its powers under Rule 32 of the Leave Rules, by relaxing the rigour of Rule 21 of the said rules, and condoned the violation of the said rules by the 5th respondent. Therefore, the conduct of the 5th respondent in taking up employment during the period of leave without permission cannot now said to be illegal, since the State W.A.No.76/2017 15 Government is deemed to have given prior permission to the said respondent to take up employment while on leave, and as such there is no violation of Rule 13(1)(b) of the Conduct Rules. Therefore, according to the 4th respondent, there is no illegality in dropping the disciplinary proceedings initiated against the 5th respondent alleging misconduct under Rule 13(1)(b) of the Conduct Rules.
26. The learned counsel for the appellant would contend that, the 5th respondent being a member of the All India Service, the State Government have no authority to ratify his action in taking up employment in violation of the provisions under the Leave Rules during the period of leave without Government permission and remitting the remuneration to the Management Institute. As such, the State Government has no authority to drop the disciplinary proceedings initiated against 5th respondent.
27. As we have already noticed, Rule 2(g)(iii) of the Leave Rules define 'Government' to mean, in the case of a member of the All India Service serving in connection with the affairs of a State, the Government of that State. Therefore, the contention of W.A.No.76/2017 16 the appellant that the 4th respondent State has no authority to ratify the action of the 5th respondent in taking up employment during the period of leave without Government permission and remitting the remuneration to the Management Institute, in exercise of its powers under Rule 32 of the Leave Rules, by relaxing the rigour of Rule 21 of the said rules, can only be rejected as devoid of merit. Therefore, the appellant cannot contend that the action of the 4th respondent State in dropping further action in the disciplinary proceedings initiated against the 5th respondent is without any authority of law.
28. It is well settled that a subsequent ratification has retrospective effect and is equivalent to a prior command. This principle is founded on the Latin maxim 'omnis ratihabitio retrotrahitur et mandato priori aequiparatur', which means that ratification relates back to the date of the original act.
29. In Punjab University v. V.N.Tripathi (2001 (8) SCC 179), a decision cited by the learned Advocate General, the Apex Court held that ratification has the effect of relating back to the time when the action was taken without authority. In the said case, the Registrar under Section 21 of the Punjab University Act, W.A.No.76/2017 17 1947 is authorised to represent the University in all legal proceedings, except where there is a decision of the Senate to the contrary. The Registrar filed the appeal against the decision of the Trial Court, which had gone against the University, though strictly speaking exceeded his authority, but his action in having filed the appeals was later on ratified by the competent authority by resolution dated 29.9.1991. The Apex Court observed that, had the Senate not ratified the act of the filing of the appeal, it would of course have been a different matter, but not thereafter. The submission made on behalf of the respondent that the ratification came very late is of no substance. It would not have any material bearing on the fact of ratification of the action of the Registrar in filing the appeal, since ratification has the effect of relating back to the time when the action was taken without authority.
30. In Maharashtra State Mining Corporation v. Sunil (2006 (5) SCC 96), another decision cited by the learned Advocate General, a Three-Judge Bench of the Apex Court held that, 'ratification' by definition means the making valid of an act already done. The principle is derived from the Latin maxim W.A.No.76/2017 18 'omnis ratihabitio retrotrahitur et mandato priori aequiparatur', namely, a subsequent ratification of an act is equivalent to a prior authority to perform such act. Therefore, ratification assumes an invalid act which is retrospectively validated.
31. The Apex Court in National Institute of Technology v. Pannalal Choudhury (2015 (11) SCC 669) reiterated that, ratification makes an invalid act a lawful one in conformity with the procedure prescribed in rules.
32. Applying the law relating to ratification to the instant case, conclusion is irresistible that, once the State Government ratified the action of the 5th respondent in taking up employment during the period of leave without Government permission and remitting the remuneration to the Management Institute, it relates back to the time when such action was taken by the 5th respondent without authority, i.e., without prior Government permission.
33. A reading of Exts.P6 and P7 representations would indicate that, the appellant made such representations before the Central Government for initiating disciplinary action against the 5th respondent for the misconduct alleged to have been W.A.No.76/2017 19 committed by him in violation of Rule 13(1)(b) of the Conduct Rules, by taking up employment as Director in the Management Institute without Government permission and accepting remuneration for the said post.
34. As evident from Ext.P11 communication, the State Government have examined the said issue with reference to the provisions of the Discipline and Appeal Rules, after obtaining explanation from the 5th respondent, and ratified the action of the said respondent in having remitted the salary to the Management Institute. Hence it was decided that no further action is required in the matter, which was duly intimated to the Central Government vide Ext.P11 communication.
35. In Rajnit Prasad v. Union of India (2000 (9) SCC
313), a decision cited by the learned Advocate General, the Apex Court held that, in respect of disciplinary proceedings which are initiated or sought to be initiated by the Government against its employees, a person who is not even remotely connected with those proceedings cannot challenge any aspect of such departmental proceedings or action by filing a writ petition in the W.A.No.76/2017 20 High Court or in the Apex Court. The disciplinary action against an employee is taken by the Government for various reasons principally for misconduct on the part of the employee, which action is taken after a domestic enquiry, in which the employee is provided with an opportunity for hearing, as required by the constitutional mandate. It is essentially a matter between the employer and the employee, and a stranger cannot be said to have any interest in those proceedings. Public interest of general importance is not involved in disciplinary proceedings. In fact, if such petitions are entertained at the instance of persons who are not connected with those proceedings, it would amount to an abuse of process of court.
36. In Gurpal Singh v. State of Punjab (2005 (5) SCC
136) the Apex Court held that, though the parameters of public interest litigation (PIL) have been indicated in a large number of cases, yet unmindful of the real intentions and objectives, High Courts are entertaining such petitions and wasting valuable judicial time which could be otherwise utilised for disposal of genuine cases. Though in Duryodhan Sahu (Dr.) v. Jitendra Kumar Mishra (1998 (7) SCC 273) it was held that in service W.A.No.76/2017 21 matters PILs should not be entertained, the inflow of so called PILs involving service matters continues unabated in the courts and strangely are entertained. The least the High Courts could do is to throw them out on the basis of the said decision. When a particular person is the object and target of a petition styled as PIL, the court has to be careful to see whether the attack in the guise of public interest is really intended to unleash a private vendetta, personal grouse or some other mala fide object. Since in service matters public interest litigation cannot be filed there is no scope for taking action for contempt, particularly, when the petition is itself not maintainable. Later, in Hari Bansh Lal v. Sahodar Prasad Mahto (2010 (9) SCC 655) the Apex Court held that except for a writ of quo warranto, public interest litigation is not maintainable in service matters.
37. In the instant case, the question as to whether disciplinary proceedings will have to be initiated against the 5th respondent or the proceedings already initiated has to be proceeded further is exclusively within the domain of the State. The appellant, who is admittedly a stranger, cannot be said to W.A.No.76/2017 22 have any interest in such matters. Therefore, the appellant has no legal right to challenge Ext.P3 Confidential Verification Report obtained in the course of the disciplinary proceedings initiated against the 5th respondent and also the conclusion of the competent authority in agreeing with the recommendation of the Enquiry Officer that no further action is required in the matter. For the very same reason, the appellant has no legal right to challenge the action of the State Government in dropping the disciplinary proceedings initiated against the 5th respondent, by ratifying the action of the said respondent in taking up employment during the period of leave without Government permission and remitting the remuneration to the Management Institute, and deciding that no further action is required in the matter. Therefore, as rightly contended by the learned Advocate General, the challenge made in the writ petition against the action of the State Government in dropping the disciplinary proceedings against the 5th respondent, by ratifying the action of the said respondent in taking up employment during the period of leave without Government permission and remitting the W.A.No.76/2017 23 remuneration to the Management Institute, is not legally maintainable.
38. The learned counsel for the appellant would then contended that, the investigation conducted under the VACB was only an eyewash of an investigation by a lower functionary as against an Inspector General of Police then. As pointed out in Ext.P4 representation, in the discrete enquiry conducted by the VACB it was revealed that the 5th respondent has committed criminal misconduct punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and hence the mere repayment of the money illegally collected from the Management Institution towards monthly remuneration will not absolve him from the criminal liability. The learned counsel would also point out that, the finding that the 5th respondent has remitted the remuneration to the Management Institute is not supported by any valid materials.
39. As stated by the State Government in Ext.P11 reply to the Central Government, while the 5th respondent was on extraordinary leave with effect from 6.3.2009, he had applied for the post of Director of T.K.M. Institute of Management with a W.A.No.76/2017 24 view to complete his research work in that Institute. He was selected for the post and he provisionally took charge on 1.4.2009. The Management of the Institute had officially written to the State Government for allowing the service of the 5th respondent to be engaged as the Director. Since the Government have not issued sanction, the Management relieved the 5th respondent from that post. The amount received by the 5th respondent as honorarium has also been remitted to the Management.
40. It is not in dispute that the amount received by the 5th respondent from the Management Institute was towards remuneration for the post of Director. But, the appellant would contend that, the action of the 5th respondent in accepting employment in the Management Institute, without obtaining the previous sanction of the Government, and receiving remuneration from that Institute, will amount to criminal misconduct falling under Section 13(1)(d) of the Prevention of Corruption Act punishable under Section 13(2) of the said Act. Therefore, it is contended that the mere repayment of the money obtained by illegal means will not absolve the 5th respondent from criminal W.A.No.76/2017 25 liability.
41. As per Section 13(1)(d) of the Prevention of Corruption Act, a public servant is said to commit the offence of criminal misconduct, if he (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.
42. In Kanwarjit Singh Kakkar v. State of Punjab (2011 (13) SCC 158), a decision cited by the learned Advocate General, the Apex Court held that, in the light of the definition of 'corruption' as defined under the Prevention of Corruption Act in its Preamble and under Section 7 of the said Act, it clearly emerges that 'corruption' is acceptance or demand of illegal gratification for doing an official act. The demand/receipt of fee while doing private practice by a Government Doctor by itself cannot be held to be an illegal gratification as the same obviously is the amount charged towards professional remuneration. It W.A.No.76/2017 26 would be preposterous to hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against the plain common sense. If however it were alleged that the doctor while doing private practice as Government doctor indulged in malpractice in any manner, as for instance, took money by way of illegal gratification for admitting the patients in the Government hospital or any other offence of criminal nature like prescribing unnecessary surgery for the purpose of extracting money by way of professional fee and a host of other circumstances, the same obviously would be a clear case to be registered under the Indian Penal Code as also under the Prevention of Corruption Act.
43. In Kanwarjit Singh Kakkar's case (supra) the Apex Court held that, the most important and vital check before a public servant can be booked under the Prevention of Corruption Act is that, the ingredients of the offence will have to be deduced from the facts and circumstances obtained in the particular case. The Apex Court noticed that, the amount that is alleged to have been accepted even as per the allegation of the complainant/ W.A.No.76/2017 27 informant was not by way of gratification for doing any favour to the accused, but admittedly by way of professional fee for examining and treating the patients. However, no presumption can be drawn that it was accepted as motive or reward for doing or forbearing any official act so as to treat the receipt of professional fee as gratification, much less illegal gratification. The professional fee even as per the case of the complainant/ informant was that, this act on the part of the accused/appellants was contrary to the Government circular and the circular itself had a rider in it which stated that the Government doctor could do private practice also, provided he sought permission from the Government in this regard. Thus the conduct of the accused/appellants who alleged to have indulged in private practice while holding the office of Government doctor and hence public servant at the most, could be proceeded with for departmental proceedings under the Service Rules, but insofar as making out of an offence either under the Prevention of Corruption Act or under the Indian Penal Code, would be difficult to sustain, as examination of patients by doctor and thereby W.A.No.76/2017 28 charging professional fee, by itself, would not be an offence but as per the complaint, since the same was contrary to the Government circular which instructed that private practice may be conducted by the Government doctors in the State of Punjab, provided permission was sought from the Government in this regard, the appellants were fit to be prosecuted. Thus, the appellants even as per the FIR as it stands, can be held to have violated only the Government instructions which itself has not termed private practice as 'corruption' under the Prevention of Corruption Act merely on account of charging fee as the same in any event was a professional fee which could not have been charged since the same was contrary to the Government instructions. Thus, if a particular professional discharges the duty of a doctor, that by itself is not an offence but becomes an offence by virtue of the fact that it contravenes a bar imposed by a circular or instruction of the Government. In that event, the said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act.
44. In C.K.Jaffer Sharief v. State (2013 (1) SCC 205), W.A.No.76/2017 29 another decision cited by the learned Advocate General, the Apex Court, after referring to the provisions under Section 13(1)(d) of Prevention of Corruption Act held that, a bare reading of the aforesaid provision would go to show that the offence contemplated therein is committed if a public servant obtains for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means; by abusing his position as public servant or without any public interest. The aforesaid provision of the Prevention of Corruption Act, 1988 is somewhat similar to the offence under Section 5(1)(d) of the Prevention of Corruption Act, 1947. After referring to the fundamental principle of criminal jurisprudence with regard to the liability of an accused, the Apex Court held that the dishonest intention is the gist of the offence under Section 13(1)(d), which is implicit in the words used, that is, corrupt or illegal means and abuse of position as a public servant. In the said decision the Apex Court has also referred to its earlier decision in M.Narayanan Nambiar v. State of Kerala (AIR 1963 SC 1116) expressing a similar view.
45. Relying on the judgment of the Apex Court in Gopakumar B.Nair v. CBI (2014 (5) SCC 800) the learned W.A.No.76/2017 30 counsel for the appellant would contend that, mere repayment of remuneration to the Management Institute would not absolve the 5th respondent from the liability to be proceeded against for an offence under Section 13(1)(d) of the Prevention of Corruption Act. In the said decision the Apex Court was dealing with a case in which certain employees of the Indian Overseas Bank along with others were charge sheeted for offences punishable under Section 120B of IPC read with Section 13(1)(2) of the Prevention of Corruption Act and Section 420/471 of IPC alleging that they had entered into a criminal conspiracy to obtain undue pecuniary advantage for themselves and in furtherance of the aforesaid criminal conspiracy, the appellant/accused dishonestly applied for certain loans and opened bank account without proper introduction. Thereafter, the appellant/accused furnished a forged agreement for purchase of a second land car showing a value of 6.65 lakhs though he had purchased the said vehicle only for lesser amount, and the 1st accused by abusing his official position as the Branch Manager dishonestly sanctioned 5 lakhs towards car loan without pre-requisite sanction inspection. Certain other W.A.No.76/2017 31 allegations were also levelled against the accused. Based on the aforesaid allegations, a crime was registered against the appellant and other accused, wherein charge sheet was filed under the aforesaid provisions of the Indian Penal Code as well as the Prevention of Corruption Act. It was at that point of time, the appellant contended that all the amounts due to the bank from him has already been tendered in full in an out of court settlement between the parties. The amount due to the Bank was paid pursuant to a private settlement between the parties. Since there was no acknowledgement on the part of the bank of exoneration of criminal liability of the appellant/accused, the Apex Court declined interference in the impugned judgment refusing to quash criminal proceedings in exercise of the power under Section 482 of the Code of Criminal Procedure. Therefore, the decision of the Apex Court in Gopakumar's case is on an entirely different factual matrix and the principle laid down therein in no way support the case of the appellant herein.
46. Applying the law laid down by the Apex Court in the decisions referred to supra to the instant case, conclusion is irresistible that, the action of the 5th respondent in accepting W.A.No.76/2017 32 employment in the Management Institute, without obtaining the previous sanction of the Government, and receiving remuneration from that Institute will not amount to criminal misconduct falling under Section 13(1)(d) of the Prevention of Corruption Act. In the absence of a dishonest intention, which is the gist of the offence under Section 13(1)(d) of the said Act, which is implicit in the words used, i.e., corrupt or illegal means and abuse of position as a public servant, the 'misconduct' alleged against the 5th respondent will not amount to 'criminal misconduct' falling under Section 13(1)(d) of the Prevention of Corruption Act. The said act of the 5th respondent would only fall within the ambit of 'misconduct' to be dealt with under the Service Rules. In the matter on hand, the Management Institute, even prior to accepting the services of the 5th respondent, had written a letter to the Government, seeking permission to appoint the 5th respondent for the post of Director. During the subsistence of such a request by the Institute, it appointed the 5th respondent to the post of Director, on the apprehension that permission to appoint will be accorded by the Government. However, the W.A.No.76/2017 33 Government responded to the letter of the Institute by refusing to grant permission for such appointment of the Institute. Immediately thereafter, the 5th respondent quit the services of the Management Institute and remitted the remuneration which he had obtained from the Institute. Moreover, as is clear from the correspondence between the Management Institute and the Government, the 5th respondent was not only acting as the Director of the Institute but also was pursuing research work for his purposes, i.e., the purpose for which he had obtained leave from the Government. Hence, it cannot be said that it is a case of criminal misconduct by the 5th respondent, inasmuch as there is no 'mens rea' on the part of 5th respondent. Since 'mens rea' is the essential ingredient of a crime, it cannot be said that 5th respondent has involved in 'criminal misconduct'.
47. In the writ petition, the appellant sought for an order to entrust the investigation on the offence alleged to have been committed by the 5th respondent attracting the provisions of the Prevention of Corruption Act to the CBI, for a fair and impartial investigation. However the materials on record would not show that the appellant he has made any complaint in this regard W.A.No.76/2017 34 before any authority competent to take cognizance of such a complaint.
48. In Sakiri Vasu v. State of U.P. (2008 (2) SCC 409) the Apex Court held that, the High Court should discourage the practice of filing writ petition simply because a person has a grievance that his First Information Report has not been registered by police or after being registered, proper investigation has not been done by the police. For this grievance the remedy lies under Sections 36 and 154(3) of the Criminal Procedure Code, 1973 before the concerned police officer, and if that is of no avail, under Section 156(3) of the said Code before the Magistrate or filing a criminal complaint under Section 200 of the Code and not by filing a writ petition under Article 226 of the Constitution or a petition under Section 482 of the Criminal Procedure Code.
49. In State of West Bengal v. Committee for Protection of Democratic Rights (2010 (3) SCC 571) the Apex Court emphasised that, despite wide powers conferred by Article 32 and Article 226 of the Constitution, while passing any order, the Courts must bear in mind certain self-imposed W.A.No.76/2017 35 limitations on the exercise of these Constitutional powers. The very plenitude of the power under the said Articles requires great caution in its exercise. In so far as the question of issuing a direction to the CBI to conduct investigation in a case is concerned, although no inflexible guidelines can be laid down to decide whether or not such power should be exercised, but time and again it has been reiterated that such an order is not to be passed as a matter of routine or merely because a party has levelled some allegations against the local police. This extraordinary power must be exercised sparingly, cautiously and in exceptional situations where it becomes necessary to provide credibility and instil confidence in investigations or where the incident may have national and international ramifications or where such an order may be necessary for doing complete justice and enforcing the fundamental rights. Otherwise the CBI would be flooded with a large number of cases and with limited resources, may find it difficult to properly investigate even serious cases and in the process lose its credibility and purpose with unsatisfactory investigations.
W.A.No.76/2017 36
50. For the reasons stated hereinbefore, we conclude that the appellant/writ petitioner has no legal right to challenge the action of the State Government in dropping the disciplinary proceedings initiated against the 5th respondent, by ratifying the action of the said respondent in taking up employment during the period of leave without Government permission and remitting the remuneration to the Management Institute and deciding that no further action is required in the matter. Once the State Government ratified such action of the 5th respondent, it relates back to the time when such action was taken by the said respondent without authority, i.e., without prior Government permission. In the absence of a dishonest intention, which is the gist of the offence under Section 13(1)(d) of the Prevention of Corruption Act, the misconduct alleged against the 5th respondent in accepting employment in the Management Institute without obtaining previous sanction from the Government and receiving remuneration from that Institute will not amount to 'criminal misconduct' falling under Section 13(1)(d) of the Act. At any rate, the appellant who has not even made a complaint before W.A.No.76/2017 37 any competent authority to take cognizance of the offence alleged against the 5th respondent under the provisions of the Prevention of Corruption Act cannot rush to this Court in a Writ Petition under Article 226 of the Constitution of India to entrust the investigation to the CBI.
51. In the result, we find no grounds to interfere with the judgment of the learned Single Judge.
The Writ Appeal fails and the same is accordingly dismissed.
Sd/-
MOHAN M. SHANTANAGOUDAR, CHIEF JUSTICE Sd/-
ANIL K.NARENDRAN, JUDGE dsn/skj True copy P.S. to Judge