Kerala High Court
D.V. D'Monte And Ors. vs Central Government Represented By Dy. ... on 1 July, 1975
Equivalent citations: 1976CRILJ589
Author: V. Khalid
Bench: V. Khalid
JUDGMENT V. Khalid, J.
1. This revision conies before us on a reference by a learned Judge of this Court. The important question of law agitated before us is whether a complaint filed against an accused, who had ceased to be a public servant on the date the Court took cognisance of the complaint, is bad for want of sanction under Section 6 of the Prevention of Corruption Act, 1947, for short the Act, if the said accused is directed to be reinstated in service during the course of the trial setting aside the original order of removal.
2. For a better appreciation of the question of law, Involved, it is necessary to briefly state the facts of the of case. The petitioners, who are three in ambit are the accused in C.C. No, 5 of 1970 before the Special Judge, Eroekulam. The 3rd petitiotver, hereinafter referred to as the 3rd accused, was an appraiser in the Customs. Department at Cochin from 1960 onwards. The charge against him is that he entered into a conspiracy with accused 1 and 2 and in furtherance of this conspiracy, committed various of lences. All the three were charged for offences punishable under Sections 120-B, 420, 471 and 46& read with Section 34, Indian Penal Code. Section 1&7 (72) of the Sea Customs Act and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. Disciplinary proceedings were taken against the 3rd accused and after due enquiry he was removed from service with effect from 7-8-1967 by the Collector of Customs. Before filing the charge-sheet in the criminal case, with which we are concerned here, sanction under Section 137(2)(b) of the Customs Act, 1962 was obtained. No sanction under Section 6 of the Prevention of Corruption Act was obtained. The stand taken by the prosecution is, that on the day the charge-sheet was filed and the Court took cognisance of the case, the 3rd accused had ceased to be a public servant since he had been removed from service before that date. The crder of the- Collector of Customs removing the 3rd accused from service is dated 5-9-1967 while the, cognizance, of Jha case was taken by the Special Judge on 14-10-1970. The 3rd accused preferred an appeal before the President of India GO 18-10-1967 against his removal from service. After consulting the Upon Public Service Commission, an order was passed by the President of India on 25-9-74 allowing the appeal and setting aside the order of renewal from service passed by the Collector of Centrums an Central Entices. Cochin, and the 3yd for quest was ordered to be reinstated in service. The period pi absence from 5-rl967 till the date of re-ins-statement was directed to be treated as under suspension. The appeal was sowed on the ground, that the cargo sheet served by the Disciplinary Authority was defective. The Disciplinary Authority was directed, to institute ,de now proceedings against the 3rd. accus-i ed after rectifying the defect in the charge shekel After this order, the 3rd accused; was relocated in service and posted to Madras Customs House.
3. The question agitated before us by the learned Counsel for the petitioners is that the order passed by the President setting aside the order of removal passed by the Collector of Customs acquitting the 3rd accused and directing his reinstatement operates retroactively and renders the original order a nullity, and therefore, the petitioner should be deemed to be in continuous service from the date of his removal. Therefore, it is con^ tended that a trial without sanction under Section 6 of the Act is vitiated. The contention is that the order of acquittal amounts to a declaration that the order of removal on 5-9-1967 is by virtue of a void order. We will examine this question presently.
4. The petitioners had a formidable task before us in view of a Division Bench ruling of this Court reported in Recaps Menon v. Union Government of India 1966 Ker LT 255, which dealt with a similar question. In view of this decision, the learned Counsel for the petitioners faintly suggested, that in case we doubted the correctness of the decision, the matter be referred to a Full Bench. The learned Counsel for the petitioners had contended that the acquittal by the President of the 3rd accused in this case has rendered the original order void. It is contended that it should be deemed to be a void order similar to the one passed without jurisdiction or without conforming to the principles of natural justice. Therefore, it is contended that there should be a fresh complaint after obtaining sanction.
5. The petitioners moved the Special Judge by Cri. M. P. No. 61/75 to drop all further proceedings in the case, C. C. 1965 of 1970, was the proceeding be bad for wait of sanction. The Special Judge rejected the request. Hence this revision.
6. It cannot be disputed that the accused can at any stage of the trial or appeal question the want of jurisdiction of a Court to entertain a complaint against him or that the complaint is vitiated by other illegality. There is no limitation imposed by law against the accused raising such plea at any stage. The principle enunciated in the decision reported in R.J. Sing fey, hatter of Delhi , As airport for this., position. was extract ,she relevant, passage:
The Appellants learned Counsel counsel asked for permission to raise a New point in challenge of this sanction. This new point sought to attack the sanction on two-fold ground. In the first instance he contended that this sanction was granted for prosecution section under Section 6(1) (2) of the Prevention of Corruption Act and not under Section 6 (1) (a). Secondly it was contended that in the case of the appear lant it was only the Home Department of the Government of India which could sanction the prosecution. This argument was founded on the Gazette Notification No. S. G. 2494 dated 3-8-1965 which amended the Government of India (Allocation of Business) Kulee, 1961 pursuant to the powers conferred on the President by Clause (3) of Article 77 of the Constitution. This ground of challenge had, of course, not been raised in either of the two courts below but since it went to the root of the case, being a jurisdictional point we considered it just and proper to allow it to be raised. We accordingly adjourned the hearing on July 21, 1970, to enable the counsel for the State to obtain instructions on this point and to inquire whether the Home Ministry had sanctioned the appellant's prosecution. On August 5, 1970, the next date of hearing, Shri Sac they stated at the Par that the Home Ministry had not sanctioned the appellant's prosecution and it was conceded before us that in the. absence of such sanction the prosecution must ail. In view of what has just, been stated the appeal cannot but succeed and allowing the same, we set aside the appellant conviction and sentence. The Appellant is stated to be on bail. His bail bond is to be deemed, to he cancelled....
7. The 3rd accused raised the plea of absence of sanction alter the evidence was over and when the Court we about to hear arguments, The question for our decision is, whether the objection taken goes to the root of the matter. ]n other words, whether by the order-passed by the President of India, setting aside the order removing the 3rd accused from service by the Collector! of-Customs and directing his reinstatement the 3rd accused Is entitled to raise the plea of want of sanction as, a public servant.
8. It will be useful to extract the relevant portions of the orders passed by the President in appeal:
8. And, whereas, the President on consideration of the case records and in consultation with Union Public Service Commission, has come to the conclusion that the charge against the said Shri Dharmadathan, has not been proved beyond reasonable doubt, as pr the findings of the Union Public Service Comminatory (copy enclosed), the President has concluded that benefit of debit should be given to the said Shri Dharmsdhathen and the penalty of "removal from service' imposed upon Shri Dharmadathan be set aside.
9. Now, therefore, the President hereby orders that the penalty of 'removal from service', imposed by the Collector of Customs and Central Excise, Cochin vide. Order No. See.1/9/64pt III dated 2-9-1967 on the aforesaid Shri Dharmadathan be set aside and the appeal of the said Shri Dharmadathan be allowed.
10. The President, further orders, under Rule 10 (3) of the Central Civil Services {Classification, Control and Appeal) Rules, 1965 that the said Shri Dharmadathan be reinstated in service and for the period of absence from 5-9-1967 (the date of removal from service) to the date of his reinstatement the said Shri Dharmadathan shall be deemed to have been under suspension and for above period he shall be allowed subsistence allowance at the same rate at which he has been drawing before his removal from service.
11. On reinstatement the said Shri Dharmadathan shall be posted the Madras Customs House.
12. The President further observes that the charge-sheet served by the Disciplinary Authority is defective in that it does not speak about the probable motive for payment of Rs. 5,000/ to the said Shri Dharmadathan by M/s. Sharada Machinery Corporation, Madras, through its agent. The President, hereby orders under Rule 27 (3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 that the disciplinary authority should institute de nov proceedings against the said Shri Dharxoadathao after rectifying the defect in the earlier charge-sheet to be issued now.
9. It follows that the 3rd accused was given the benefit of doubt in appeal. The learned Counsel for the petitioner has no case that the proceedings were instituted by any authority who had no jurisdiction to do so, nor that the principles of natural justice were not complied with. The only case that was pressed before its is that the order of acquittal by the President revives the status quo ante and that the original order should be treated as one which is ab initial void. We will examine this proposition with reference to the Division Bench ruling of this Court reported in 1966 Ker LT 255, already referred to. In that case, the petitioner was the Assistant Station Master of Southern, Railway. A departmental enquiry was held and he was dismissed from service on 19-10-1963. He-was charged for various offences - including the one under Section 5 (2) of the Prevention of Corruption Act; The Special Judge took cognisance of the offence on 30-3-1964. No sanction was obtained for prosecuting the Accused, since he had ceased to be a Government servant when the Court took cognisance of the offence. The petitioner had moved this Court by a writ petition to quash the order of dismissal. this Court allowed the petition on 14-7-1964 on the ground that there was non-compliance with Rule 1713 of the Conduct and Discipline Rules for railway servants and quashed the proceedings. The judgment in the writ petition was confirmed by a Division Bench of this Court in appeal.
10. The contention before the Division Bench in the decision reported in 1966 Ker LT 255 in revision against the order of the Special Judge overruling the objection based on want of sanction was that since the order of dismissal was quashed, it should be presumed that the said order never existed and therefore the petitioner was a government servant on the date when cognisance of the offence was taken and should be deemed to have continued as a Government servant at all relevant times. It is not disputed that sanction is not necessary if at the time the Court took cognisance of the complaint against an accused, he had ceased to be a Government servant. Nor can it be disputed that every order passed by en authority, which is ultimately set aside, becomes a nullity for the reason that it was set aside in appeal. Orders which are set aside either because of some procedural irregularity or other technical plea cannot be said to be void bandito. The defect must be one which goes to the root of the matter. An order can be said to be abilities void only when the order Is passed by an authority which had no jurisdiction to do so and when such ah order is passed in violation of the principles of natural justice.
11. The Division Bench in 1966 Ker LT 255 relied for its decision on the Supreme Court ruling in State v. Mohammed Nooh AIR 1958 SC 86, which in turn sought support from English cases discussed in paragraph 4 of that judgment. In State v. Mohammed Nooh, the Supreme Court observed as follows:
On the authorisation referrd to above it appears to us that there may conceivably be casesand the instant case is on point where the error,, irregularity or illegality toughing jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obstrusive that it leaves on ita decision en indelible stamp of infirmity or Vice which cannot be obliterated or cured on appeal or revision. If an inferior Court or Tribunal of first instance acts wholly without jurisdiction or patently in excess Of jurisdiction or manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules of procedure and which offends the superior court's sense of fair play the superior Court may, we think, quite properly exercise its power to issue the prerogative writ of certiorarj to correct the error of the Court or Tribunal of first instance, even if an appeal to another inferior Court or tribunal was available and recourse was not had to it or if recourse was had to it, it confirmed what ex facie was a nullity for reasons aforementioned.
The learned Counsel for the petitioners did not address us. and according to us rightly, that the original authority which passed the order of removal, from service of the 3rd accused, had no jurisdiction and that principles of natural justice were not conformed to. His contention was that the acquittal in appeal rendered the original order void ab initial, and therefore, the 3rd accused should be deemed to be a government servant with continuity of service. We feel that the submission is not sound or acceptable. From the portions of the order passed in appeal extracted above, it will be seen that the appeal was allowed on the ground that the chargesheet served by the Disciplinary Authority was defective and that the charge against the 3rd accused was not proved beyond reasonable doubt. The only vice with the order passed was a defect in procedure. The case, according to us, therefore falls squarely within the principle laid down by the Division Bench of this Court in 1966 Ker LT 255. As in that case, where the order was set aside because of non-compliance with certain rule, in this case it was on account of the defect in charge.
12. Reliance was sought to be placed on the decision reported in Khem Chand v. Union of India , for the position that the petitioner (3rd accused) continued to be a Government servant at all relevant times in view of the direction contained in paragraph 10 of the order to the following effect:
.... the said Shri Dharmadathan shall be deemed to have been under suspension and for the above period he shall be allowed subsistence allowance at the same rate at which he has been drawing before his removal from service.
The argument is that, by this provision the 3rd accused should be deemed to be in service on the date of his removal from service. The following passage in , is relied upon by the learned Counsel for the petitioners:
The only other relief granted by the decree was the making of a declaration that the order of dismissal passed by the Deputy Commissioner, Delhi, on December 17, 1951, purporting to dismiss the appellant from service was inoperative and that the appellant was a member of the service at the date of the institution of the suit out of which the appeal had arisen. Does the impugned rule go against this declaration. The answer, in our opinion, must be in the negative. The provision in the- rule that the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was a member of the service on May 25, 1953, when the first suit was instituted by the appellant. An order of suspension of a Government servant does not put an end to his service under the Government. He continues to be a member of the service in spite of the order of suspension. There was a termination of the appellant's service when the order of dismissal was made on December 17, 1951. When the order of dismissal was set aside, the appellant's service revived; and so long as another order of dismissal is not made or the service of the appellant is not terminated by some other means, the appellant continues to be a member of the service and the order of suspension In no way affects this position. The real effect of the order of suspension is that though he continued to be a member of the Government service he was not permitted to work, and further, during the period of his suspension he was paid only some allowance generally called "subsistence allowance" which is normally leas than his salary instead of the pay and allowances he would have been entitled to if he had not been suspended. There is no doubt that the order of suspension affects a Government servant injuriously. There is no basis for thinking however that because of the order of suspension he ceases to be a member of the service-The provision in Rule 12 (4) that in certain circumstances the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal and shall continue to remain under suspension until further orders, does not in any way go against the declaration made by this Court....
From this passage, it is sought to be argued that by the said declaration, the original position is revived. It should be made clear at this stage that the declaration is that the petitioner therein "should be deemed to be in service" which means that he was not in fact in service but was deemed to be in service, importing a legal fiction. The following sentence in the said judgment quoted above, according to us, is important.
The provision in the rule that the Government servant shall be deemed to have been placed under suspension from the date of the original order of dismissal does not seek to affect the position that the order of dismissal previously passed was inoperative and that the appellant was a member of the service on May 25. 1953, when the first suit was instituted by the appellant....
This clearly indicates that till the original order is set aside, the said order remains in operation and the setting aside of such orders for some procedural irregularity, although restores to the delinquent certain benefits of services, does not restore to him all the rights of Government servants during the period, the order was in operation. This is available only in cases where the order is abolition void or is a nullity for want of compliance of natural justice.
13. We are not satisfied that in this case the 3rd accused can urge that the order of acquittal passed by the President of India would render the original order of dismissal void and would entitle him to claim that the cognisance of the complaint by the Special Judge without sanction under Section 6 of the Act is bad and that a fresh complaint should be filed against him after obtaining sanction. According to us, the Special Judge was right in rejecting the contentions of the 3rd accused. We therefore confirm the order of rejection.
14. Counsel for the respondents raised a preliminary objection that tike revision; itself is bad on account of the inhibition contained in Section 39.7 (2) of the new Code. Conceding that party has a right to challenge the legality of 8 prosecution against him, which goes to the root of the case, at any stage before a Court, once an adverse order is passed, a revision against such order is barred under Sub-section (2) of Section 397. The objection was raised at an interlocutory stage and the order is an interlocutory order. The question is, whether this order can be challenged in revision because of the bar contained in Section 397 (2). We feel that the matter needs a more comprehensive probe. Since we are deciding the revision on the main question of law against the petitioner, we leave open this question and do not wish to pronounce upon it in this case.
15. In the result, the criminal revision petition is dismissed. The records will be sent to the Special Judge, Ernakuiam, forthwith, to proceed with the case according to law.