Shyam Kumar Rastogi vs State Of U.P. & Others
2015 Latest Caselaw 156 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 27								  A.F.R.
 

 
Case :- SERVICE SINGLE No. - 4575 of 1994
 

 
Petitioner :- Shyam Kumar Rastogi
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Mohd. Ali,K.K.Upadhyay,Neelam Singh,S K Kalia,Sameer Kalia
 
Counsel for Respondent :- N.K.Pandey,Amit Singh Bhadauria,B.A. Naqvi,N K Pandey,S K Awasthi,S. Sanchit Asthana,Sandeep Dixit
 

 
Hon'ble Rakesh Srivastava,J.

1. Whether the competent authority has any power to review its order refusing to grant sanction for prosecution of a public servant, passed under Section 19 of the Prevention of Corruption Act, 1988 (for short 'Act'), is the short question to be answered in this petition.

2. Shyam Kishore Rastogi the petitioner, was appointed as Junior Engineer in the erstwhile U.P. State Electricity Board (now U.P. Power Corporation) in July, 1975. At the relevant time the petitioner was posted as Junior Engineer in the Electricity Distribution Division, Sultanpur at 33/11 KV Sub-Station, Jamo. On the basis of a complaint lodged by a consumer, namely, Kanhaiya Lal Pandey a First Information Report was registered under Section 7 and 13 (2) of the Act. On 29.10.1983 the petitioner was arrested in a trap case by a team of U.P. Vigilance Establishment, Faizabad. The respondent was released on bail later on. Upon completion of investigation, the Vigilance Department sought for sanction from the competent authority so as to enable it to prosecute the petitioner. By an order dated 19.02.1985, sanction sought for was refused. After a lapse of more than 8 years the competent authority reconsidered the matter and on 17.05.1994 sanction to prosecute the petitioner was granted.

3. The order dated 17.05.1994 has been put to contention by the petitioner in the present writ petition.

4. Sri Mohammad Ali, learned counsel for the petitioner has contended that the impugned order dated 17.05.1994 was passed by the competent authority mechanically and without application of mind and cannot be sustained. The learned counsel contends that under Section 19 of the Act the competent authority has no power to review an order granting or refusing to grant sanction and in any case, in the absence of any fresh material, an order refusing to grant sanction could not be reviewed.

5. Per contra, the learned Standing Counsel appearing on behalf of opposite party no. 1 and Sri Amit Singh Bhadauria, learned counsel for opposite party nos. 2 & 3 have tried to justify the impugned order. Sri Amit Singh Bhadauria has submitted that the power under Section 19 of the Act is an administrative power and the competent authority had the requisite power to review its earlier order. It was urged that it was incorrect to say that power once exercised stood exhausted.

6. Heard Sri Mohd. Ali, learned counsel for the petitioner, the learned Standing Counsel and Sri Amit Singh Bhadauria, learned counsel appearing for opposite party nos. 2 & 3.

7. Section 19 of the Act, in so far as it is relevant, reads:-

"19. Previous sanction necessary for prosecution.--

(1) No court shall take cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction,--

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;

(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;

(c) in the case of any other person, of the authority competent to remove him from his office."

8. Section 19 places a bar on the Court from taking cognizance of the offences specified in sub-section (1) against public servants unless the prosecution for those offences was sanctioned by the Central Government or the State Government or the competent authority as the case may be. The object of enacting Section 19 of the Act is to protect the innocent public servants from frivolous, malicious or vexatious prosecutions for acts performed by them in good faith in the discharge of their official duties.

9. Before adverting to the facts of the case, it is apposite to take note of the principles of law laid down by the Apex Court concerning the grant of sanction under Section 19 of the Act. The issue, however, is no longer res integra and is settled by a catena of decisions of the Apex Court.

10. The principle has been succinctly stated by the Privy Council way back in 1948, in Gokulchand Dwarkadas Morarka v. The King, AIR (35) 1948 PC 82, and the same has been repeatedly quoted with respect and approval. The Privy Council opined that the facts constituting the offence charged should be referred to on the face of the sanction or else, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority.

11. In Jaswant Singh v. State of Punjab, AIR 1958 SC 124, the Apex Court, relying upon Gokulchand Dwarkadas Morarka (supra), in paragraph 4 of the said report has held as follows:-

"4.....It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case."

12. In the case of Mohd. Iqbal Ahmad v. State of Andhra Pradesh, 1979 (4) SCC 172, the Apex Court in paragraph 3 of the said report, has held as follows:-

"3.....It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it."

13. In yet another case Mansukhlal Vithaldas Chauhan v. State of Gujarat, (1997) 7 SCC 622, in paragraphs 18 & 19, the Apex Court has held as follows:-

"18. The validity of the sanction would, therefore, depend upon the material placed before the sanctioning authority and the fact that all the relevant facts, material and evidence have been considered by the sanctioning authority. Consideration implies application of mind. The order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. This fact can also be established by extrinsic evidence by placing the relevant files before the Court to show that all relevant facts were considered by the sanctioning authority.

19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution."

14. In Gopikant Choudhary v. State of Bihar & Ors., (2000) 9 SCC 53, initially sanction to prosecute the public servant concerned was refused by the minister concerned. Subsequently, after the retirement of the public servant, the matter was again taken up by the Chief Minister and he granted sanction for prosecution of the public servant concerned. The Apex Court held that in the absence of any fresh material requiring a fresh look at the earlier order, there was no occasion for the Chief Minister to reconsider the matter and pass a fresh order sanctioning the prosecution. In paragraph 6 of the said report it was held as follows:-

"6. We find from the file that was produced that there has been no application of mind when the subsequent order was passed in the year 1997. It further appears that between the order refusing to sanction and the order that was passed in 1997, the investigating agency had not collected any fresh materials requiring a fresh look at the earlier order."

15. In the case reported in (2007) 11 SCC 273, State of Karnataka v. Ameerjan, an order of sanction passed by the sanctioning authority solely on the basis of a purported report made by the Inspector General of Police was set aside. The Apex Court, in paragraphs 10 of the said report, held as under:-

"10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. We have noticed hereinbefore that the sanctioning authority had purported to pass the order of sanction solely on the basis of the report made by the Inspector General of Police, Karnataka Lokayukta. Even the said report has not been brought on record. Thus, whether in the said report, either in the body thereof or by annexing therewith the relevant documents, IG Police, Karnataka Lokayukta had placed on record the materials collected on investigation of the matter which would prima facie establish existence of evidence in regard to the commission of the offence by the public servant concerned is not evident. Ordinarily, before passing an order of sanction, the entire records containing the materials collected against the accused should be placed before the sanctioning authority. In the event, the order of sanction does not indicate application of mind as (sic to) the materials placed before the said authority before the order of sanction was passed, the same may be produced before the court to show that such materials had in fact been produced."

16. In State of Punjab & Anr. v. Mohammed Iqbal Bhatti, (2009) 17 SCC 92, the Apex Court had an occasion to consider the question as to whether the State had any power of review in the matter of grant of sanction in terms of section 197 of the Code. The Apex Court, while reiterating that the validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it, held that once the Government passed an order declining sanction for prosecution of the official concerned, reviewing such an order on the basis of the same material was not permissible. Paragraphs 6, 7, 20 & 21 of the said report are reproduced below:-

"6. Although the State in the matter of grant or refusal to grant sanction exercises statutory jurisdiction, the same, however, would not mean that power once exercised cannot be exercised once again. For exercising its jurisdiction at a subsequent stage, express power of review in the State may not be necessary as even such a power is administrative in character. It is, however, beyond any cavil that while passing an order for grant of sanction, serious application of mind on the part of the authority concerned is imperative. The legality and/or validity of the order granting sanction would be subject to review by the criminal courts. An order refusing to grant sanction may attract judicial review by the Superior Courts.

7. Validity of an order of sanction would depend upon application of mind on the part of the authority concerned and the material placed before it. All such material facts and material evidence must be considered by it. The sanctioning authority must apply its mind on such material facts and evidence collected during the investigation. Even such application of mind does not appear from the order of sanction, extrinsic evidence may be placed before the court in that behalf. While granting sanction, the authority cannot take into consideration an irrelevant fact nor can it pass an order on extraneous consideration not germane for passing a statutory order.

20. It was, therefore, not a case where fresh materials were placed before the sanctioning authority. No case, therefore, was made out that the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. If the clarification sought for by the Hon'ble Minister had been supplied, as has been contended before us, the same should have formed a ground for reconsideration of the order. It is stated before us that the Government sent nine letters for obtaining the clarifications which were not replied to.

21. The High Court in its judgment has clearly held, upon perusing the entire records, that no fresh material was produced. There is also nothing to show as to why reconsideration became necessary. On what premise such a procedure was adopted is not known. Application of mind is also absent to show the necessity for reconsideration or review of the earlier order on the basis of the materials placed before the sanctioning authority or otherwise."

17. In the case reported in (2010) 14 SCC 527, State of Himachal Pradesh v. Nishant Sareen, the Apex Court relying upon the case of Mohd. Iqbal Bhatti (supra) held that once the sanction for prosecution was denied after due application of mind, it was not open to the sanctioning authority to review or reconsider the matter on the same material again. Paragraphs 12 & 13 of the said report are reproduced below:-

"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 a 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 sanction to prosecute the public servant may be granted, there may not be any impediment to adopt such a course."

18. From the discussion above, the following principles of law emerge:

(i) While granting or refusing to grant sanction for prosecution of a public servant, the sanctioning authority is obliged to apply its mind and consider all material facts and evidences collected during the investigation.

(ii) The sanctioning authority has to apply his own independent mind for the generation of genuine satisfaction as to whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other.

(iii) The sanction order must ex facie disclose that the sanctioning authority had considered the entire evidence and other material placed before it.

(iv) The fact that the sanctioning authority had considered all the relevant facts can also be established by extrinsic evidence by placing the relevant files before the Court.

(v) Even though there is no express power of review in the matter of grant or refusal to grant sanction, where fresh materials have been collected by the investigating agency, subsequent to the earlier order and placed before the sanctioning authority, it is open to the sanctioning authority to reconsider the matter in the light of fresh materials. It is not open to the sanctioning authority to review or reconsider an order refusing to grant sanction for prosecution on same material again.

19. The case at hand has to be examined in the light of the settled legal proposition as mentioned above.

20. The petitioner was a public servant and there is no dispute that the Chief Engineer, Hydel was his appointing authority and was the authority competent to remove the petitioner from his office. In view of Section 19 of the Act the petitioner could not have been prosecuted for an offence under sections 7, 10, 11, 13 and 15 of the Act except with the previous sanction of the competent authority.

21. On a complaint made by a consumer, namely, Sri Kanhiya Lal Pandey, the petitioner was arrested in a trap case. The case was investigated by the vigilance department and sanction was sought for prosecuting him from the Chief Engineer (Hydel) i.e. the appointing authority of the petitioner. The then Chief Engineer (Hydel) on the basis of material placed before him and on examination of the case, found no justification in granting sanction to prosecute the petitioner and passed an order on 19.02.1985 refusing sanction for prosecution of the petitioner. In the order dated 19.02.1985 whereby sanction was refused, it was observed as under:-

"bl lEcU/k esa vkids mDr i= ds lkFk izkIr mijksDr ekeys ls lEcfU/kr ewy dkxtkrksa ds lfgr dsl Mk;jh ds v/;;u ,oa ijh{k.k ls ;g fofnr gksrk gS fd Jh ';ke dqekj jLrksxh] voj vfHk;Urk] fo|qr forj.k [k.M] lqYrkuiqj ds fo:) mi;qZDr VSªi ekeys dk dksbZ izFke n`"V;k ¼izkbek QslkbZ½ ekeyk ugh curk A ,slh fLFkfr esa eqdnek pykus dh vuqefr nsuk U;k; laxr ugh gksxkA"

"From a perusal and examination of the original documents and case diary received along with your letter in this connection, it transpires that no prima facie case is made out against Sri Shyam Kumar Rastogi, Asstt. Engineer, Power Distribution Division, Sultanpur in the aforesaid trap case. In such a situation, it would not be justifiable to grant permission for prosecution."

(English translation by Court)

22. After the competent authority refused to grant sanction for prosecution of the petitioner, the Chief Engineer (Hydel) on 19.02.1985 issued an office memorandum by means of which the petitioner was warned for the lapse and was advised to be more careful in future. Subsequently, on being asked by the Joint Director-II, U.P. Vigilance Establishment, Lucknow, the Superintendent of Police, U.P. Vigilance Establishment, Faizabad submitted his report dated 16.11.1985 to the former in which it was stated that on the basis of the material on record it was not possible to prosecute the petitioner. However, departmental action was recommended against the petitioner.

23. After a lapse of more than 9 years, it appears that in pursuance of an order passed by the State Government, the Vigilance Department took up the matter again with the Chief Engineer (Hydel). Sri Vinay Kumar Agarwal, Chief Engineer (Hydel) reconsidered the matter and by his order dated 17.05.1994 granted sanction to prosecute the petitioner. In the sanction order dated 17.05.1994, it was observed thus:-

",rn~}kjk m0iz0 ljdkj mtkZ vuqHkkx&2 ds vkns'k la[;k 5768&oh&[email protected]&[email protected]@83 fn 11 tuojh 1994 ds vuqikyu esa Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 7 o 13¼1½ Mh lifBr /kkjk 13¼2½ ds v/khu Jh ';ke dqekj jLrksxh] voj vfHk;Urk] lc&LVs'ku tkeksa] ftyk&lqYrkuiqj ¼fo|qr&forj.k [k.M lqYrkuiqj½ dks vfHk;ksftr djus vkSj fdlh vf/kdkfjrk ;qDr l{ke U;k;ky; }kjk laKku djus ds fy;s Hkz"Vkpkj fuokj.k vf/kfu;e 1988 dh /kkjk 19 ds vUrxZr Lohd`r iznku djrk gw¡A"

"In compliance of Order No.5768-V-2/93-23/354E/83 dated 11th January 1994 of the Energy Section - 2, Government of Uttar Pradesh, under section Sections 7 and 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988, I hereby accord sanction for prosecution of Sri Shyam Kumar Rastogi, Asstt. Engineer, Sub Station Jamon, District Sutanpur (Power Distribution Division, Sultanpur) and for its cognizance by any competent court having jurisdiction under Section 19 of the Prevention of Corruption Act, 1988."

(English translation by Court)

24. A perusal of the order dated 17.05.1994 would show that the said order is purported to have been passed solely in compliance of the government order dated 11.01.1994. The government order dated 11.01.1994 has not been brought on record. Neither the facts on the basis of which the prosecution has been sanctioned against the petitioner are mentioned in the impugned sanction order, nor the said document contains any ground on which the sanctioning authority could be said to have based his satisfaction. From the order, it is not evident as to whether the entire record containing the material collected on investigation against the petitioner was placed before the sanctioning authority or not. There is also nothing on record to show as to why reconsideration became necessary. In the circumstances, there is no escape from the conclusion that the sanctioning authority has passed the order of sanction solely on the basis of the order passed by the State Government, mechanically and without application of his own independent mind.

25. Apart from the above, in the case at hand, the matter was initially placed before the competent authority, who refused to accord sanction after considering all the relevant facts, material and evidence and an order to that effect was passed. It is not the case of the respondents that earlier the sanctioning authority had failed to take into consideration a relevant fact or took into consideration an irrelevant fact. The investigating agency has not collected any fresh material requiring a fresh look at the earlier order. It is, therefore, not a case where fresh materials were placed before the sanctioning authority. No fresh material having been collected subsequent to the earlier order refusing to sanction prosecution and the competent authority, having applied its mind and having passed an order refusing to accord sanction for prosecution of the petitioner, the subsequent order is wholly uncalled for and unjustified.

26. In view of the above, the impugned order dated 17.05.1994 cannot be sustained and is liable to be set aside.

27. The writ petition is allowed. The impugned order dated 17.05.1994 passed by the Chief Engineer (Hydel) granting sanction for prosecution of the petitioner is quashed.

28. On 06.10.1994 an interim order was passed by this Court by means of which the operation of impugned order dated 17.05.1994 was stayed. During the pendency of the present writ petition, on attaining the age of superannuation, the petitioner has retired from service on 31.10.2005. It has been informed by the learned counsel for the petitioner that despite the fact that the operation of the impugned order dated 17.05.1994 was stayed by this Court, the pay scale etc. to which the petitioner was entitled to, have not been paid to the petitioner till date. In paragraph no. 14 of the counter affidavit it has been stated by the respondent nos. 2 & 3 that the benefit of time scale etc. would be allowed as per law and regulations of the Board only after the final decision of the case.

29. In the circumstances, the respondents are directed to pay to the petitioner all the outstanding dues to which the petitioner is entitled under law within a maximum period of three months from the date a certified copy of this order is served upon them.

30. No order as to cost.

Order Date :- 27.4.2015

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