Rajasthan High Court - Jodhpur
Subhash Singh vs State Of Raj. & Ors on 3 September, 2012
Equivalent citations: 2014 LAB. I. C. 1698, 2014 (140) AIC (SOC) 22 (RAJ) (2014) 2 RAJ LW 1099, (2014) 2 RAJ LW 1099
Author: Govind Mathur
Bench: Govind Mathur
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Subhash Singh v. State of Rajasthan & Ors.
S.B.CIVIL WRIT PETITION NO.2345/2011
under Article 226 of the Constitution
of India.
Date of Order :: 3rd September, 2012
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. P.K.Lohra, Senior Advocate, assisted by
Mr. Sukesh Bhati, for the petitioner.
Mr. I.S.Pareek, Additional Government Counsel, for the
respondents.
....
BY THE COURT :
REPORTABLE On being lodged a criminal case against him for the offences punishable under Sections 7, 13(1)
(d)/13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988") the petitioner, a Sub-Inspector in Rajasthan Police, was placed under suspension by an order dated 1.4.2008. The issue with regard to grant of sanction for -2- prosecution of the petitioner for the offences punishable under the Act of 1988 was then considered by the Inspector General of Police, Ajmer Range, Ajmer (competent authority). By a communication dated 1.10.2010 the competent authority communicated to the Principal Secretary to the Government of Rajasthan, Department of Home Affairs, that no adequate evidence was available on record for grant of sanction. The matter then was reconsidered and the authority competent under an order dated 2.7.2012 granted sanction for prosecution of the petitioner for the offence punishable under Section 7 of the Act of 1988 read with 120-B Indian Penal Code. Being aggrieved by the sanction accorded for prosecution and continuation of the petitioner under suspension, this petition for writ is preferred.
The submission of counsel for the petitioner is that a conscious decision was taken by the competent authority under the communication dated 1.10.2010 for not granting sanction to prosecute the petitioner and that could have not been changed without having any fresh material on record. It is also submitted that as a matter of fact the competent authority changed its earlier decision without having any fresh material but by acting upon certain instructions given by the Chief Vigilance Commissioner and such ipse-dixit exercise of power without application of independent mind is not as per the -3- spirit of the Act of 1988. It is urged that as a matter of fact the authority of the Inspector General of Police was abdicated by the Chief Vigilance Commissioner, and such abdication makes the order granting sanction bad in view of the judgment of this Court in Kishan Lal v. State of Rajasthan & Ors., reported in 2009(3) WLC (Raj.) 128. In the case aforesaid this Court held as under:-
"2. Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered under Section 19(1)(a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the petitioner from office is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the petitioner with regard to any deal relating to the complainant Sh. Shankar Lal.
Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur for not granting sanction for prosecution of the petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed the Chief -4- Engineer to issue sanction required for prosecution of the petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind.
3. In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy -5- Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction."
Reliance is also placed by learned counsel upon the judgment of Hon'ble Supreme Court in State of Punjab & Anr. v. Mohammed Iqbal Bhatti, reported in (2009)17 SCC 92, wherein it was held that to review an earlier decision with regard to grant of prosecution sanction, serious application of mind on the part of the authority concerned is imperative. The sanctioning authority can reconsider its earlier decision in the event of availability of fresh material only.
The same issue was also considered by the Hon'ble Apex Court in State of Himachal Pradesh v. Nishant Sareen [(2010)14 SCC 527] and the Court held as under:-
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12. It is true that the Government in the matter of grant or refusal to grant sanction exercises statutory power and that would not mean that power once exercised cannot be exercised again or at a subsequent stage in the absence of express power of review in no circumstance whatsoever. The power of review, however, is not unbridled or unrestricted. It seems to us sound principle to follow that once the statutory power under Section 19 of the 1988 Act or Section 197 of the Code has been exercised by the Government or the competent authority, as the case may be, it is not permissible for the sanctioning authority to review or reconsider the matter on the same materials again. It is so because unrestricted power of review may not bring finality to such exercise and on change of the Government or change of the person authorised to exercise power of sanction, the matter concerning sanction may be reopened by such authority for the reasons best known to it and a different order may be passed. The opinion on the same materials, thus, may keep on changing and there may not be any end to such statutory exercise.
13. In our opinion, a change of opinion per se on the same materials cannot be a ground for reviewing or reconsidering the earlier order refusing to grant sanction. However, in a case where fresh materials have been collected by the investigating agency subsequent to the earlier order and placed before the sanctioning authority and on that basis, the matter is reconsidered by the sanctioning authority and in light of the fresh materials an opinion is formed that -7- sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such course."
To question correctness of the suspension since 1.4.2008, the argument advanced is that the suspension which is an administrative device for fair inquiry or investigation, if remains in force for long period, becomes unjust and arbitrary and that is having demoralising effect on a civil servant, as such, no civil servant should be kept under suspension for a prolong and indefinite period. It is also asserted that time to time objective review of suspension of an employee is desirable and if the purpose of placement under suspension does not survive or the purpose can be satisfied otherwise, then the suspension should be revoked.
Per contra, while defending the sanction granted for prosecution, the submission of learned counsel for the respondents is that as a matter of fact the communication dated 1.10.2010 is no order for refusing the grant of prosecution sanction, but is a tentative opinion of the competent authority communicated to the State Government. The competent officers of the State of Rajasthan and the investigating agency in light of the opinion given by the competent authority under the communication dated 1.10.2010 reexamined the issue and pointed out certain material evidence that was not taken into -8- consideration while expressing the opinion aforesaid. The competent authority then examined the matter by looking into the relevant material and decided to grant prosecution sanction, as such, there is no review of the earlier decision. It is empathetically stated that as a matter of fact no decision was taken under the communication dated 1.10.2010 and that was simply an opinion. The decision at the first instance was taken only under the order dated 2.7.2012.
The stand of the respondents on the other issue is that the petitioner was placed under suspension on being found involved in a case relating to the offences punishable under the Act of 1988, wherein the involvement of moral turpitude is implicit, thus, a wrong message shall be floated in public at large about the attitude of the government towards tainted civil servants, if the suspension is revoked.
This Court by order dated 25.7.2012 directed the respondents to make available the original record wherein case of the petitioner was considered for grant of sanction for prosecution as per provisions of Section 19 of the Act of 1988. Accordingly, the same is made available for perusal of the Court.
Heard counsel for the parties, considered the rival contentions and examined the record. -9-
From perusal of the record it reveals that on 12.5.2010 the Superintendent of Police, Anti Corruption Bureau, Rajasthan, Jaipur remitted entire record to the Inspector General of Police, Ajmer Range, Ajmer for considering the issue with regard to grant of prosecution sanction. The Inspector General of Police under the letter dated 1.10.2010 communicated to the Principal Secretary to the Government of Rajasthan, Department of Home Affairs, Jaipur that no adequate evidence was available for prosecution of the petitioner. From reading of the communication dated 1.10.2010, it is apparent that an opinion was expressed and communicated by the Inspector General of Police to the Principal Secretary to the Government of Rajasthan, Department of Home Affairs. The opinion was formed on basis of the record made available. The matter then was again referred to the Anti Corruption Bureau and the Additional Superintendent of Police, Anti Corruption Bureau under a communication dated 15.2.2012 pointed out certain evidence though available on record but skipped from consideration of Inspector General of Police, Ajmer Range, Ajmer. A detailed note made by the Anti Corruption Bureau with necessary documents pertaining to the evidence not taken into consideration was again remitted to the Inspector General of Police, Ajmer Range, Ajmer. Suffice to mention here that the Anti Corruption Bureau under communication dated 15.2.2012, -10- while pointing out other evidence available on record much emphasised upon the transcript of a telephonic talk and also on a report given by the Forensic Science Laboratory regarding positive test for the presence of phenolphthalein and sodium carbonate in the liquid with sedimentation availed during investigation from the petitioner.
The competent authority again considered the record and decided for grant of sanction for prosecution of the petitioner. The factual position noticed above clearly depicts that under the communication dated 1.10.2010 no decision was taken by the competent authority but only a tentative opinion was expressed during the process of consideration. The opinion so formed was changed by considering the material skipped earlier while examining the entire issue. While considering an issue, an authority competent before arriving at any decision examines different aspects of the matter, and during this process such authority frames and destroys its opinion several times as the process of decision making spreads on very broad canvas with all shades of spectrum. The decision making authority while undergoing such process arrives at some tentative decision and just to test strength of such decision avails opinion of other persons also. The consideration with such persons during the process of decision making is not abdication of power but an -11- effort to have high quality decision. A decision is a choice between two or more alternatives and the decision making authority is required to choose one alternative by objective application of mind. While making such choice aid and advice of others at the instance of decision making authority is permissible. On the other hand, the abdication of power is total usurpation of the authority to take a decision. In such case the competent authority just act upon the instructions and directions given by someone else, who is otherwise stranger to the issue. During the process of decision making, consideration of different aspects is essential and for that purpose opinion of others can be taken, but in no case the choice of the alternatives can be restricted under the mandate of others.
In the present case the facts available on record indicates the aid and advice taken by the competent authority while arriving at a conclusion, but nothing is available to establish that the choice of the two alternatives available was restricted to one by others and the competent authority was having no option but to accept that. The Anti Corruption Bureau after knowing about the tentative opinion of the competent authority attracted attention of the competent authority towards certain important material available on record and by examining that a definite decision was taken. In the cases relied upon by -12- learned counsel for the petitioner, a definite decision taken by the competent authority was either changed ipse-dixit due to the instructions received by higher authorities or without having any other material than the material examined earlier, but that is not the position in present case. For the reasons given and the discussions made above, I do not find any wrong with the order granting sanction for prosecution.
The next issue deserves consideration is the suspension of the petitioner since 1.4.2008. It is submitted that no disciplinary action against the petitioner has yet been initiated by the respondents and the criminal case lodged against the petitioner is at its inception and that will take huge time in arriving at its logical consequence, as such further continuation of the suspension shall be unjust and arbitrary. With all vehemence, it is asserted that a civil servant cannot be kept under suspension for an indefinite period, as that is having several ill- effects, not only upon the officer concerned but for entire service and public at large. As per learned counsel at the one hand a competent government servant is sitting idle and languishing himself from last about 4½ years and at the same time State exchequer is burdened by making the payment of subsistence allowance to him without utilising his services. -13-
This Court in the case of Prem Prakash Mathur v. State of Rajasthan & Ors., reported in 2006 (1) CDR 291 (Raj.), while considering the effects of a prolong suspension, held as under:-
"The petitioner being facing a trial for criminal offence was placed under suspension. The Government of Rajasthan by its circular dated 10.8.2001 issued guidelines to its competent officers to the effect that no public servant who is facing criminal trial be reinstated by revoking suspension till he is acquitted from the charges levelled against him. The circular referred above relates to the government servants who are facing criminal trial pertaining to the charges of moral turpitudes. It is true that the petitioner is also facing charges of serious nature involving moral turpitude but in present case it is required to be seen as to whether retention of petitioner under suspension is really warranted in the existing circumstances.
It is well settled that an order of suspension is not an order imposing punishment on a person but is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. The proceedings so initiated should be completed expeditiously. In event the disciplinary proceedings or the criminal trial, as the case may be, do not reach to their logical consequence within a reasonable period then it is required that the appointing authority or the authority -14- competent to place public servant under suspension should review the decision to continue such servant under suspension. This Court in similar circumstances in the case of Shaukat Ali v. State of Rajasthan & Ors., reported in WLR 1992(S) Raj. 855, held as under:-
"Though technically and legally suspension is not a punishment but the ground reality is that in worse than a punishment. It results in the humiliation of an employee not only before the members of the family but also in the eyes of the world at large. A disciplinary authority or its superior is empowered to place an employee under suspension with a view that enquiry proposed to be held by it is not hampered with and delinquent employee is punished for this misconduct. However, suspension of government employee without expeditiously proceeding with a departmental enquiry or with a criminal case result in grave and serious consequences. On the one hand, it demoralices the government servant; on the other the government has to pay him subsistence allowance over a long period without taking any work from him and virtually a delinquent officer is paid for setting idle. All governmental executive action has to be inspired by dictates of reasonableness, Unjust and arbitrary actions are anathema to the rule of law. Principles of natural justice require that a departmental enquiry, and for the matter a criminal -15- trial, should be conducted expeditiously and without loss of time. If this is not done, the executive government may keep a person under continued suspension for any number of years and in case eventually the charges are found to be groundless or not proved, it may have to pay him heavy arrears of salary etc. I am in agreement (with due respects) with their Lordship of the Madras High Court when the say that there is a very clearly a distinct principle of natural justice, that an officer is entitled to ask if he is suspended from his office because of grave averments or grave reports of misconduct, that the matter should be investigated with reasonable diligence, and that charges should be framed against him within a reasonable period of time and if such a principle were not to be recognised, it would imply that the executive is being vested with a totally arbitrary and unfettered power of placing its officers under disability and distress, for an indefinite duration."
In the present case there is no allegation against the petitioner that he has in any way delayed the trial of criminal case. The only reason given by the respondents is that the circular dated 10.8.2001 restrains reinstatement of a government servant by revoking his suspension till he gets acquittal from the criminal charges. In my considered opinion the circular dated 10.8.2001 cannot curtail the discretion vested with the appointing authority with -16- regard to placing, continuing or revoking suspension of a government servant. The appointing authority or the authority competent under Rule 13 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 is required to exercise the powers vested with him independently by taking into consideration all the facts, circumstances and the legal position existing."
This Court in the case of Samrath Singh v. State of Rajasthan & Anr., reported in 2010(1) WLC (Raj.) 562, while dealing with the same issue, held as under:-
"Sub-rule(1) of Rule 13 empowers competent authority with a broad discretion to place a government servant under suspension in the event of contemplation of pendency of disciplinary proceedings or where a case against him in respect of criminal offences under investigation or trial. The Government of Rajasthan by circular dated 10.8.2001 provided certain instructions to the competent authorities to exercise powers under Rule 13 referred above. As per circular dated 10.8.2001, it is clarified that if a public servant is caught red-
handed accepting bribe by the Anti Corruption Bureau, then he should be placed under suspension without any exception and the suspension of such public servant should not be revoked till his exoneration by the competent court. The circular further provides that in any case where sanction is granted for prosecution of a public servant -17- in a case relating to corruption, such public servant should be placed under suspension compulsorily and that should not be revoked till pendency of criminal case before the court concerned. According to circular dated 10.8.2001 a public servant should be mandatorily placed under suspension, if a challan has been filed before the competent court by the prosecution against him relating to the offences of murder, dowry, dowry death, rape and other offences involving moral turpitude and the public servant placed under suspension for the reasons aforesaid should be continued as such till his exoneration.
It is pertinent to note here that the circular in question at the one hand restricts discretion of the competent authority as given under Rule 13 to place an incumbent under suspension and at the same time also snatches away the power of the competent authority to revoke such suspension as prescribed under Rule 13(5) of the Rules of 1958. True it is, suspension of a civil servant is an administrative action and the government is having ample power to provide necessary guidelines to the competent authorities for exercising powers as per Rule 13, but at the same time it is also well settled that the administrative instructions can always be given to fill up the unoccupied field, however, such instructions in no way encroach the space already under occupation of an statute. In the present case the circular dated 10.8.2001 nowhere provides instructions to the competent authority as to how powers -18- under Rule 13 are required to be exercised, but it imposes mandate upon the discretion of the competent authority. Such imposition of a mandate over statutory discretion is not permissible under administrative jurisprudence. The State Government would have been right in providing guidelines or a mode to exercise discretion under Rule 13 of the Rules of 1958. The State Government could have given instances and instructions to the competent authority to exercise its discretion to place an incumbent under suspension in particular circumstances but not an order to place government servant under suspension mandatorily in specific cases. It is for the competent authority to examine facts of each and every case and to settle desirability to place an incumbent under suspension by applying objective discretion. The suspension of an employee, looking to the facts and circumstances of the case may be desired urgently or on emergent basis but in those circumstances also the competent authority must record its satisfaction for exercising powers under Rule 13. If such satisfaction is not recorded and suspension is made merely on basis of the instructions given in circulars or merely by a word of mouth or by slip of pen, then that is nothing but colourable exercise of power. In the present case it is nowhere said by the respondents that before placing the petitioner under suspension the desirability to do so was objectively considered. It is specific case of the competent authority that he placed the petitioner under suspension as per instructions of the Government of Rajasthan.-19-
From the averments made in reply to the writ petition it also appears that the respondents simply acted upon the circular dated 11.10.2007 and placed the petitioner under suspension. It also appears that the order impugned was passed with retrospective effect by treating the petitioner under suspension from the date he was arrested by the Anti Corruption Bureau. As a matter of fact the deeming provision under Rule 13(2) of the Rules of 1958 is having no role in present case as the petitioner after getting released from judicial custody was permitted to resume the duties. The work done by the petitioner while holding the post could not be undone by giving retrospective effect to the suspension. Beside that, no order placing the petitioner under suspension was passed by the competent authority when the petitioner was in judicial custody or immediately after his release and before resuming the duties. In such circumstances, the deeming provision as relied upon by the respondents is having no consequence."
In the case in hand too the petitioner was placed under suspension by acting upon the circular dated 10.8.2001. The respondents unequivocally stated in para 12 of the reply to the writ petition that as per the circular dated 10.8.2001, in case of trap, an employee cannot be reinstated until exonerated by the competent court.
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In view of the reply given by the respondents I am satisfied that the law laid down by this Court in the case of Samrath Singh (supra) is having complete application in the instant matter too. The petitioner is facing suspension from last more than 4½ years. It is also not in dispute that the criminal trial is at its initial stage as no charges have yet been framed. If the trial court frames the charges against the petitioner then the trial shall take huge time in its completion. In such circumstances, I do not find any just reason to further continue the petitioner under suspension. The respondents to avoid every possibility of tampering with the evidence and also to avoid a wrong message in public at large about continuation of a tainted person in service may post the petitioner at a place and office that is not having much concern with day to day public duties. A field posting may be denied to the petitioner to avoid all apprehensions, but no reason exists for further continuation of suspension, which has completed a huge term of four years and five months.
In view of the discussions above, this petition for writ deserves acceptance in part. The writ petition is dismissed to the extent it relates to the challenge to grant of sanction for prosecution of the petitioner for the offences punishable under the Prevention of Corruption Act, 1988 and the Indian -21- Penal Code. However, further continuation of the petitioner under suspension is declared bad. The respondents, therefore, are directed to revoke the same forthwith with liberty to post the petitioner at the place and post of their choice.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.