Central Administrative Tribunal - Delhi
Z.I.Khan vs Delhi Jal Board on 16 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH TA No. 731/2009 New Delhi, this the 16th day of December, 2009 HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) HONBLE DR. DHARAM PAUL SHARMA, MEMBER (J) Z.I.Khan S/o Zamirul Islam Khan R/o 161/18, SS Enclave, Jogabai, Okhla. Applicant (By Advocate: Shri Yogesh Sharma) Versus 1. Delhi Jal Board Varunalaya Phase II Ashok Vihar, Delhi. 2. Director Vigilance cum Joint Commissioner of Police (Anti Corruption) & Chief Vigilance Officer, Government of NCT of Delhi New Delhi. Respondents (By Advocate: Shri Nisha Kant Pandey) ORDER
Mr. L.K.Joshi, Vice Chairman (A) Only short question to be answered in this OA is whether Delhi Jal Board (DJB) can review its decision not to sanction prosecution, in case of an employee, on the repeated request of prosecuting agency. Before we answer this question in the negative, we shall delineate the brief facts of the case and the judicial precedents of the Honourable Supreme Court and the Honourable Delhi High Court.
2. The Applicant was working as Executive Engineer ad hoc basis under DJB, the first Respondent, at the relevant time. A vehicle was hired for official purpose by the Applicant in June 2000 for a period of 184 days. A formal agreement was also entered into between one Jitender Kumar, the owner of the vehicle and the Respondent-DJB. The period of contract expired on 12.12.2000 and Jitender Kumar submitted his bill for the hired vehicle on 20.04.2001. On 29.06.2001, one Kanwar Singh complained to the DJB that the Applicant had demanded Rs.9,000/- as bribe for releasing the payment for the vehicle. The Anti Corruption Branch (ACB) of the Government of NCT of Delhi organized a raid at the office of the Applicant. It is alleged that the complainant, Kanwar Singh, offered Rs.9000/- to the Applicant, who called one Manoj, a Beldar in the DJB, and asked this person to count the money. The Beldar allegedly told the Applicant that some powder was mixed with the currency notes. The Applicant then asked the Beldar to return the money to the complainant. The witness, arranged by the raiding party, had not allegedly been allowed to remain inside the room by the Applicant during the alleged transaction. The complainant came out of the Applicants room and told the witness about what transpired in the room. The witness then gave the pre-arranged signal and the raiding party raided the Applicants office. The currency notes were recovered from the complainant and hand-wash of the Beldar was taken, which turned pink. The Applicant was arrested by the ACB and later placed under deemed suspension from 2.07.2001. The ACB sought sanction for prosecution of the Applicant from the Board of the Respondent DJB.
3. The Applicant also made representations to the authorities of the DJB, praying for reconsideration of the decision to place him under suspension. He stated in these representations that the complainant never entered the Applicants office and the money was given to the Beldar outside his office. The representation has been placed at Annex P/3. The Respondent DJB, thereupon revoked the suspension and reverted the Applicant to his substantive post of Assistant Engineer from 2.07.2001, the date of his suspension by order dated 16.08.2001 (Annex P/5).
4. An FIR number 37/2001 under Sections 7 and 13 of the Prevention of Corruption Act had been registered against the Applicant by the ACB. The Board of the Respondent DJB considered the request of the second Respondent, the Chief Vigilance Officer (CVO) of the Government of NCT of Delhi, for sanction to prosecute the Applicant. On 17.04.2003, by Resolution Number 483 (Annex P/6), the Board refused to sanction prosecution as there is no evidence of Shri Z.I.Khan [the Applicant] demanding and accepting illegal gratification. The Resolution was confirmed on 4.07.2003. The Additional Chief Vigilance Officer of the Respondent DJB, informed the second Respondent on 31.07.2003 that sanction for prosecution against the Applicant has been denied by the Board. The second Respondent again wrote to the Chief Executive Officer (CEO) of the first Respondent on 24.09.2003 to take up the matter with the Board for reconsideration (Annex P/9). This was reiterated on 3.11.2003. An agenda item number 129 was again placed before the Board of the first Respondent for reconsideration of the matter of sanction of prosecution against the Applicant. The Board sanctioned prosecution in its meeting on 30.12.2003, which was communicated on 18.03.2004 (Annex P/13).
5. The main thrust of the argument on behalf of the Applicant has been that in the light of the judgments of the Honourable Supreme Court in Dr. (Smt.) Runtesh Gupta Vs. Management of Hindu Kanya Mahavidyalaya, Sitapur, (1987) 4 SCC 525, Gopikant Choudhary Vs. State of Bihar and others, (2000) 9 SCC 53 and the judgment of Honourable Delhi High Court in Abha Tyagi Vs. Delhi Energy Development Agency and another, 2002 III AD (Delhi) 641, that the appointing authority cannot sanction prosecution of an employee, having refused it once, by reviewing its earlier decision and in the absence of any new facts being placed before it. The learned counsel would contend that there is no provision in the Act and Rules of the Respondent DJB to review its earlier decision. Second, it is further argued that no fresh material has been placed before the Board to review and its decision. The Board has been coerced by the second Respondent, as contended by the learned counsel.
6. The Respondents have opposed the cause of the Applicant. It is contended that there is sufficient evidence against the Applicant about demand and acceptance of bribe. It has been contended that the DJB has granted sanction for prosecution on the basis of the facts of the case and not because of any pressure from the second Respondent.
7. No argument has, however, been addressed by the Respondents regarding the only argument raised by the learned counsel for the Applicant, which is a legal argument regarding the competence of the first Respondent to review its decision not to sanction prosecution especially in the absence of any new facts being placed before it.
8. The question in Abha Tyagi (supra) has been succinctly summed up thus:
The authority to exercise the power of review in respect of sanction of prosecution under section 19 (1)(c) of the Prevention of Corruption Act, 1988 (for short the Act) has given rise to the present petition).
3. On 26.2.98 an FIR was filed against the petitioner for disproportionate assets. A request was made for sanction of prosecution under section 19 (1)(c) of the said Act but the same was declined by the competent authority vide orders dated 29.11.99 and 15.3.2000. Request was again made by the CBI for reconsideration of the matter but the same was declined vide order dated 5.2.2001 on the ground that the competent authority had no power to review its decision. The CBI continued to make requests by subsequent letters dated 21.6.2001, 17.7.2001 and 24.9.2001. Finally the sanction was granted by the order dated 31.10.2001. The Honourable Delhi High Court considered Dr. (Smt.) Kuntesh Gupta (supra) and Gopikant Choudhary (supra) and observed thus:
16. Two aspects clearly emerge from the aforesaid facts. First that there was no fresh material on record for reviewing its earlier decision other than the communications by the CBI. This is apparent from the order dated 31.10.2001. It appears from the sequence of facts that it is only the repeated demands and requests of the CBI whch has resulted in passing of the impugned order. In view of there being no fresh material for review, the mere reappraisal of certain figures to come to the conclusion that there were disproportionate assets to the extent of Rs.1.57 lacs cannot be sustained. This in terms of the decisions in Jagdish Prasads case (supra) and Gopikant Choudharys case (supra).
18. The Supreme Court has held in Dr. (Smt.) Kuntesh Guptas case (supra) that power of review cannot be exercised unless it is specifically conferred. This view has been followed by the Division Bench of this court in Dhanpatmal Virmani Senior Secondary Schools case (supra). The competent authority undoubtedly derives its powers as granted in terms of the said Act. No such power of review has been conferred under the said Act. In view of the competent authority having exercised its power, in the absence of a power of review, the authority could not have reviewed its earlier decision.
19. In the end it must be stated that the present case is peculiar to the extent that for an amount of alleged disproportionate assets of Rs.1.57 lacs the CBI has been making repeated requests and the competent authorities have declined the same time and again till the impugned order was passed. The action taken vide the impugned order is wholly unsustainable in law in the absence of any power of review as also in view of the fact that no fresh material was in any case placed on record for reconsideration other than the repeated requests of CBI.
9. The instant case is squarely covered by the decision of the Honourable High Court in Abha Tyagi (supra). Confronted with this, the learned counsel for the Respondents has not been able to oppose this.
10. The order of the Respondent DJB sanctioning prosecution had been stayed by the Honourable Delhi High Court by order dated 2.09.2004 and the interim order was made absolute on 4.05.2005.
11. The OA succeeds on the basis of above consideration. We hold that reconsideration of the decision not to sanction prosecution by the Board of Delhi Jal Board is illegal as it has no powers to review such decision in the absence of any fresh material being brought on record. The sanction order placed at Annex-P/13 is quashed and set aside. No costs.
( DR. DHARAM PAUL SHARMA ) ( L.K. JOSHI )
Member (J) Vice Chairman (A)
sd