Joseph Bain D'Souza vs State Of Maharashtra And Ors.
2004 Latest Caselaw 121 Bom

JUDGMENT

C.K. Thakker, C.J.

1. Rule.

2. Mr. P. Janardhan, Addl. Advocate General, appears and waives service of rule on behalf of respondent Nos. 1, 2, 4 and 5.

3. Mr. S. G. Aney, learned Counsel, appears and waives service of rule on behalf of respondent No. 3.

4. In the facts and circumstances of the case, the Rule made returnable and is taken up for final hearing forthwith.

5. This petition is filed by the petitioner, former Chief Secretary of the State of Maharashtra making complaint against an action taken by the respondent Authorities of revoking an order of suspension and reinstating respondent No. 3 in service.

6. The case of the petitioner is that he came across an article dated 14th September, 2002 in Indian Express (Daily) with the heading "C. M. BRUSHES ASIDE ACB REPORT, REINSTATES SUSPENDED ENGINEER". It is alleged in the petition that respondent No. 3 demanded and accepted an amount of Rs. 54,000/- from one Mr. Abu Memon, Contractor. A complaint was, therefore, filed with the Anti-Corruption Bureau on 14th December, 2001 and as asserted by the petitioner the respondent No. 3 was caught red handed. He was, therefore, placed under suspension in December, 2001. In June, 2002, however, he was reinstated in service. The said action, according to the petitioner, was contrary to law, illegal and unlawful and ought not to have been taken. He, therefore, approached this Court by filing the present petition.

7. After the notice was issued by this Court, the respondents appeared. Affidavits and further affidavits were filed. In the meanwhile, however, the petitioner came to know that the State Government had refused to grant sanction to prosecute respondent No. 3. Hence, by an amendment, the said order refusing sanction to prosecute respondent No. 3 was also challenged. The amendment was granted and today we have heard the matter finally.

8. The learned Counsel for the petitioner contended that when serious allegations were levelled against respondent No. 3 who was caught red-handed and was placed under suspension, it was not open to State Authorities to reinstate respondent No. 3 in service. The said action, therefore, deserves to be quashed. It was also contended that in any case, so far as the refusal to grant sanction to prosecute respondent No. 3 is concerned, it is not in consonance with law. The said action requires to be set aside inter alia on the ground that virtually by refusing sanction to prosecute on the grounds stated and circumstances mentioned the State Government has 'conducted a trial' and given a 'clean chit' to respondent No. 3, which is not permissible.

9. On behalf of the respondents, the petition was contested. It was submitted that the petition does not deserve admission and no relief can be granted as prayed for by the petitioner. Two affidavits in reply are filed by Deputy Secretary of Irrigation Department. In the first affidavit dated 7th July, 2003, it was stated that the action of reinstating respondent No. 3 was taken in consonance with the Government Resolutions dated 14th December, 1995 and 14th June, 1996. It was also the case of the Government in the counter that the petitioner was involved in the trap case and subsequent to his arrest, the delinquent respondent No. 3 was placed under suspension. The case was formerly not reviewed. But since there was long lapse of time of more than six months, as per the policy decision of the Government his case was reconsidered and an order was passed reinstating him in service. The said action being in conformity with law, cannot be said to be improper, illegal or unlawful and deserves no interference.

10. In the light of the affidavit dated 7th July, 2003, the Division Bench passed an order on 27th August, 2003 observing therein that ends of justice would be met if the matter would be kept pending by directing the State Authorities to take appropriate action so that Anti-Corruption Bureau may submit charge-sheet with report within a period of one month from the date of the order.

11. Thereafter, the action of refusing sanction was taken by the Government. In an affidavit filed by Inspector of Police, Anti-Corruption Bureau, it was stated that respondent No. 3 was involved in a trap laid by Anti-Corruption Bureau, Thane Unit. He also stated; "The respondent No. 3 was caught red- handed while accepting the bribe of Rs. 54,000/- on 14-12-2001 from one Shri. Abubaker Sattar Memon, who is the Government Contractor".

12. He then stated that a proposal for sanction to prosecute respondent No. 3 was forwarded to the Additional Chief Secretary (A/S), Home Department on 29th October, 2002 but it was refused by the Home Department, inter alia, on the following grounds:-

(i) The contract for which the demand was made was already given to Shri. Memon (complainant). In the said matter, no work of the complainant was pending with N. A. Shri. Rajput, hence the motive of demand could not be established;

(ii) There is no eye-witness when Shri. Rajput accepted the bribe money;

(iii) The bribe money was kept on the table. This fact is not mentioned in the Panchanama;

(iv) In the trap case, currency note numbers are not mentioned in the pie-trap and post-trap panchanama. A separate schedule of currency note numbers is attached with the Panchanama.

It was also stated that in view of refusal to grant sanction, the case was submitted to the Special Court on September, 4, 2003 requesting it to grant 'A' Summary, which was granted.

13. A further affidavit is filed by the Deputy Secretary, Home Department, which is produced today before us. In paragraph 1, the Deponent has stated that an affidavit in reply is filed by the Additional Superintendent of Police, Anti Corruption Bureau and the Deponent craves leave "to refer to and rely upon the said affidavit as and when necessary". It is also stated in paragraph 3 that as per the Government Resolution dated 3rd April, 2000, proposal was submitted by the Anti Corruption Bureau to the Home Department for grant of sanction. The Home Department examined the "feasibility of giving concurrence" for grant of sanction. After examining the proposal, the Anti Corruption Bureau was informed about a "Insufficiency of evidence"; and the proposal was returned. It was further stated that in view of refusal to grant sanction, the Anti Corruption Bureau had submitted report to the Special Court on 4th September, 2003 and requested to grant "A" Summary in the case.

14. An affidavit is filed by contesting respondent No. 3, wherein, it was stated that the action which was taken by the State Authorities was legal and valid. It was contended that a false complaint was filed by the Complainant before the Anti Corruption Bureau and when respondent No. 3 was ordered to be reinstated by the State Government, the petitioner cannot make grievance. It was, therefore, submitted that the petition deserves to be dismissed.

15. Having heard the learned Counsel for the parties, in our opinion, the petition deserves to be partly allowed. So far as the prayer of quashing and setting aside an order of reinstatement is concerned, in our opinion, the prayer cannot be granted directing the respondent Authorities to reconsider the order of reinstatement in view of the fact that as on today, a decision has been taken by the State Authorities refusing to grant sanction. Obviously, therefore, in the light of the subsequent development and refusal to grant sanction by the State Authorities, it cannot be said that the respondent No. 3 ought not to have been reinstated or should have been continued to be under suspension.

16. Regarding refusal to grant sanction, however, in our opinion, the learned Counsel for the petitioner is right in contending that the said action deserves interference. Grant of sanction to prosecute is administrative in character and not quasi-judicial. In the light of allegations levelled against respondent No. 3, and a trap case, the State Authorities were obliged to consider the case of the respondent No. 3 of granting or refusing sanction.

17. So far as affidavit of Mr. Jadhav, Inspector of Police, Anti Corruption Bureau is concerned, he has stated that the respondent No. 3 was caught 'redhanded'. It is, no doubt, submitted by the learned Additional Advocate General that according to the State Authorities, it was not true. It is also the case of respondent No. 3 that it is not correct that respondent No. 3 was caught redhanded. We express no opinion on that point. But we may note that it was the case of Mr. Jadhav, Inspector of Police, ACB in the affidavit dated 29th October, 2002, that the respondent No. 3 was caught 'red-handed'. Moreover, it may be stated that in the order of suspension passed by the Government on 15th June, 2002, Exhibit No. 2 to the affidavit in reply filed by respondent No. 3 dated 4th August, 2003 also, the said fact has been mentioned. In the said order it was, inter alia, mentioned;

"Whereas Shri. I. G. Rajput, Executive Engineer, was caught red-handed and arrested on 14-12-2001 in view of the Anti Corruption raid conducted by Anti-Corruption Bureau, Thane and was kept for more than 48 hours in the Police Custody, he has been suspended from the Government service with retrospective effective from 14-12-2001 (M.N.) by order dated 20-12-2001 according to the power and authority under the Maharashtra Govt. Services (Discipline & Appeal) Rules, 1971, Rule 4(2)(A)."

18. Further though the Deputy Secretary of Home Department, in the affidavit dated 4th February, 2004 has not said anything except stating that he would rely on the affidavit filed by the Additional Superintendent of Police, Anti. Corruption Bureau and that the Home Department had examined the 'feasibility' of 'giving concurrence' for grant of sanction, from the affidavit of Inspector Jadhav, it is clear that Deputy Secretary entered into the correctness or otherwise as also sufficiency of material against the respondent No. 3. In our view, it was a prohibited field. Four grounds mentioned in the affidavit clarify this. In our considered opinion, it was not open to the State Government at the stage of considering the question of grant of sanction to prosecute to enter into those aspects and the order refusing sanction, therefore, deserves to be quashed and set aside.

19. For the foregoing reasons, in our opinion, insofar as refusal to grant sanction by the State Government is concerned, the order deserves to be quashed and it is, accordingly, hereby quashed and set aside. It is directed that the Government will reconsider the matter in the light of the observations made by us hereinabove and take appropriate decision in accordance with law. Let such decision be taken within four weeks from today.

20. Before parting with the matter, however, we may clarify that all the observations made by us are limited to decide the question raised before us and we may not be understood to have expressed any opinion on merits of the matter. All questions and contentions are kept open.

21. Rule is accordingly, partly made absolute. Writ Petition is disposed of in terms aforesaid. No order as to costs.

22. Parties be given copy of this order duly authenticated as true copy by the Sheristedar of this Court.