Madhya Pradesh High Court
G.N. Singh vs The State Of Madhya Pradesh on 21 June, 2017
Author: H.P. Singh
Bench: H.P. Singh
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HIGH COURT OF MADHYA PRADESH
MAIN SEAT AT JABALPUR
W.P. No.18235/2015
G.N. Singh ....Petitioner.
versus
State of M.P. and Others .....Respondents
W.P No.16793/2015
D.S. Parmar ....Petitioner.
Versus
State of M.P. and Another ... Respondents
Present:Hon'ble Shri S.K. Seth, J &
Hon'ble Shri H.P. Singh,J.
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Shri Anil Khare, Senior Advocate with
Shri H.S. Chabbra for the petitioner.
Shri Pushpendra Yadav, Government
Advocate for the State.
ShriPankaj Dubey, Advocate for
Lokayukt.
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O R D E R
(Passed on 21 s t June, 2017) Per Seth J.
Corruption is one of the most talked about subjects today in the country since it is believed to have penetrated into every sphere of activity. It is described as wholly widespread and spectacular. Corruption as such has reached dangerous heights and dangerous potentialities. The word "corruption" has a wide connotation and embraces almost all the spheres of our day- to-day life the world over. In a limited sense it connotes allowing decisions and :2: actions of a person to be influenced not by the right or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. Avarice is a common frailty of mankind, and while Robert Walpole's observation that every man has a price, maybe a little generalised, yet it cannot be gainsaid that it is not far from the truth. Burke cautioned "Among a people generally corrupt, liberty cannot last long."
2. This writ petition and the connected writ petition, raise common questions of law, therefore, they are being disposed of by this order. For the sake of convenience, we have noticed the facts from the writ petition No. 18235 of 2015.
3. The present petition has been filed to challenge the order granting sanction for prosecution of the petitioner for the offence punishable under section 13 (1) (e) r/w section 13 (2) of the Prevention of Corruption Act, 1988 for acquiring assets disproportionate to his known source of income during the check period.
4. Petitioner entered the government service as Assistant Engineer in S.A.D.A Khajuraho in the year 1988. Presently he is posted as Executive Engineer, Indore Development Authority, Indore.
5. On 11.3.2011, FIR No. 25/2011 for an offence punishable under section 13 (1) (e) r/w Section 13 (2) was registered and on 14.3.2011 a raid was conducted at the residential house of the petitioner. It was found that during the check period, i.e. 26.7.1988 to 14.3.2011, the income of the petitioner from known sources was Rs. 72,66,380/- only, whereas expenditure incurred for acquiring assets was 1,83,64,861/-. Prima facie the petitioner :3: could not account for expenditure of Rs. 1,10,98,481/- for acquiring assets despite several notices sent by the Investigation officer to the petitioner which remained unanswered. After the investigation was over, the matter was referred to the State Government for a grant of sanction for prosecution of the petitioner. Initially the Administrative Department was of the view that no case for sanction is made out. Thereafter, in terms of the G.A.D. Circular dated 5.9.2014 matter was referred to the Law Department for its opinion. The Law Department after examination of the matter, disagreed with the stand taken by the Administrative Department and sent back the matter for consideration. Ultimately, on 12.10.2015 sanction was granted for prosecution of petitioner which is under challenge in this petition.
6. At this stage it is relevant to point out that before sanction was accorded petitioner filed a writ petition to pre-empt the sanction, however, after the sanction was accorded, the writ has become infructuous. In view of this, the earlier petition filed by the petitioner (W.P.No.16630/2015) is dismissed as having been rendered infructuous.
7. The main plank of attack of Shri Khare is that once a decision was taken to not prosecute the petitioner, respondents cannot take a somersault and granted sanction. It amounts to a review of an earlier decision without there being any fresh material. Having taken a decision not to accord sanction for prosecution, it was not open to the respondents to review the earlier decision i.e. not to prosecute the petitioner. In the alternative, his submission was that there was no application :4: of mind to all relevant facts and material to accord sanction. In support of his contention, counsel relied on the decision of the Supreme Court reported in State of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527.
8. Learned counsels appearing for the respondents resisted the submissions of Shri Khare and submitted that earlier no formal order was passed refusing sanction. They contended that in a democratic set-up files move from one rung of the ladder to a higher rung in the order of hierarchy and each level officer has to give his input before file moves forward. It is well established working procedure of the Executive Branch of the Government. It was further submitted that no formal order was ever issued refusing to grant sanction for prosecution. They further submitted in the present case that procedure for according of sanction as laid down in the General Administrative Department of Government in the circular dated 5.9.2014 was followed. This fact is not disputed by the petitioner in pleadings and his counsel during the course of arguments. Learned counsel appearing for respondents further submitted that the Law Department after examination and consideration of entire material, deferred with opinion of Administrative Department submitted the matter to the Administrative Department for its decision along with the its opinion with reasons. Thereafter the matter was placed before the Chief Minister, who being in- charge Minister of the Department, agreed with the opinion of the Law Department, as a result, the order granting permission for the prosecution of the petitioner was issued under Section 19 of the Prevention of Corruption Act, 1988 which is the subject of the present writ petition as also connected :5: writ petition. It was also submitted that the order granting permission is a purely administrative function and for that, only prima facie satisfaction of the authority is needed. The adequacy of the material placed before sanctioning authority cannot be judged at this stage and the Court should not interfere with valid sanction adopting a hyper-technical view unless it is shown by relevant and cogent material that such action caused real prejudice to the public servant. It is also submitted that while dealing with such question the Court should not shut its eye to the rampant corruption in society. Learned counsel appearing for respondents therefore submitted that no case has been made out to interfere with the valid sanction order and petitions are liable to be dismissed with costs.
9. After having heard the rival submissions and keeping in mind the material placed on record and various judgments cited at the Bar, we are of the considered opinion that the petitions have no merit and are liable to be dismissed.
10. To appreciate the rival contention, it would be appropriate to keep in mind undisputed fact that the G.A.D circular dated 5.9.2014 filed as Annexure R-2 along with the additional reply of respondent No. 1 lays down the uniform procedure to be adopted for grant of sanction for prosecution a of public servant. For the purpose of the case at hand, it is pertinent to point out that as per procedure when there is a difference of opinion between the administrative and the law department in the matter of grant of sanction, the administrative department would prepare précis to be submitted to the Cabinet through GAD. Great emphasis was laid by learned senior counsel on that précis and :6: note sheet to contend once the administrative department passed an order refusing to grant sanction, then the review was not possible in the light of the opinion of the Law Department. To buttress his submission, he heavily relied upon decision of the Supreme Court in the case of the State of Himachal Pradesh Vs. Nishant Sareen (2010) 14 SCC 527. We are not impressed with the contention. A careful reading of the decision shows that competent authority-Principal Secretary (Health) earlier passed an order refusing to grant sanction. Vigilance Department took up the matter again with the competent authority. The competent authority yielded and accorded sanction without there being no new/fresh material. Their Lordships while accepting the proposition that the matter of sanction is purely an administrative function, but having exercised that power, review was impermissible unless subsequent to refusal new or fresh material is unearthed. In our considered opinion said decision of the Supreme Court does not come to the rescue of the petition because no formal order duly authenticated in terms of Rules of Business framed by the government was ever issued. Administrative notes on file by no stretch of imagination be termed as a formal order refusing Sanction by the State Government.
11. In Jasbir Singh Chhabra v. State of Punjab,(2010) 4 SCC 192 the Supreme Court held as under: (SCC p. 209, para 35):-
"35. It must always be remembered that in a democratic polity like ours, the functions of the Government are carried out by different individuals at different levels. The issues and policy matters which are required to be decided by the Government are dealt with by several functionaries, some of whom may record noting on the files favouring a :7: particular person or group of persons. Someone may suggest a particular line of action, which may not be conducive to the public interest and others may suggest the adoption of a different mode in larger public interest. However, the final decision is required to be taken by the Designated Authority keeping in view the larger public interest. The noting's recorded in the files cannot be made a basis for recording a finding that the ultimate decision taken by the Government is tainted by mala fide or is influenced by extraneous considerations."
12. In Sethi Auto Service Station v. DDA, (2009) 1 SCC 180 the Court observed as under:
(SCC pp. 185-86, para 14) "14. It is trite to state that noting's in a departmental file does not have the sanction of law to be an effective order. A noting by an officer is an expression of his view point on the subject. It is no more than an opinion by an officer for internal use and consideration of the other officials of the department and for the benefit of the final decision-making authority. Needless to add that internal notes are not meant for outside exposure. Notes in the file culminate in an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned."
13. Same view has been expressed in Vivek Batra v. Union of India, (2017) 1 SCC 69.
14. In view of the law laid down by the Supreme Court, as above, we are of the opinion that the sanction cannot be held invalid, only for the reason that in the administrative noting's different authorities have opined differently before the competent authority finally took the decision in the matter and order was dispatched.
:8:15. It is not a case where the incompetent authority granted sanction for prosecution. What is required under Section 19 of the Prevention of Corruption Act, 1988 is that for taking the cognizance of an offence, punishable under Sections 7, 10, 11, 13 and 15 of the Act committed by the public servant, sanction is necessary by the Central Government or the State Government, as the case may be, and in the case of a public servant, who is neither employed in connection with affairs' of the Union or the State, by the authority competent to remove him.
16. Having gone through the material available on the record relating to sanction in question, it is evident that there had been a proper application of mind on the part of the competent authority before the sanction was accorded. There is nothing on the record to indicate that any decision was taken by the competent authority, at any point of time, not to grant sanction so as to give the decision to grant sanction the colour of a review of any such earlier order, as has been contended before us.
17. The object underlying Section 19 is to ensure that a public servant does not suffer harassment on false, frivolous, concocted or unsubstantiated allegations. The exercise of power under Section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach the conclusion fairly, objectively and consistent with the public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. In Mansukhlal Vithaldas Chauhan v. State of Gujarat (1997) :9: 7 SCC 622 the Supreme Court held "Sanction is a weapon to ensure discouragement of frivolous and vexatious prosecution and is a safeguard for the innocent but not a shield for the guilty."
18. In this view of legal position, we find difficult to agree with the submissions of the learned counsel for the petitioner that Government has reviewed the earlier order. As stated above, there was no earlier order, except notes on the file and the Government was free to take decision one way or another. On this score no fault can be found with the order granting sanction. So far as connected writ petition is concerned, the only additional ground is taken that the State Government has not followed the circular no.08/05/15 dated 25.05.2015 issued by the Central Vigilance Commission. Suffice it to say that petitioner is a State Government employee and the circular issued by the Central Vigilance Commission does not apply to the State employee hence, this ground is of no avail.
19. In view of the foregoing discussion, we do not find any merit and substance in the writ petitions. Consequently, both writ petitions stand dismissed, but with no orders as to costs.
20. Let a copy of this order be retained in the file of W.P. No.16793/2015.
21. Ordered accordingly.
(S.K.SETH) (H.P.SINGH) J U D G E J U D G E rao