Ashok Kumar Raswant vs Cbi
2009 Latest Caselaw 411 Del

                   "REPORTABLE"
*            HIGH COURT OF DELHI AT NEW DELHI

+             Crl. Revision Petition 495/2005

                           Date of decision: February 06, 2009

#     ASHOK KUMAR RASWANT                   ..... PETITIONER

!            Through :           Mr. Sandeep Sethi,Sr.Adv.
                                 Mr. Anurag Jain,Adv.

                               Versus

$     CBI                                   ....RESPONDENT

^            Through :           Mr. Ashish Kumar,Adv.

%
      CORAM:
      HON'BLE MS. JUSTICE ARUNA SURESH

     (1) Whether reporters of local paper may be
         allowed to see the judgment?

     (2) To be referred to the reporter or not?              Yes

     (3) Whether the judgment should be reported
         in the Digest ?                                     Yes

ARUNA SURESH, J.

1. Present revision petition has been filed by the

petitioner impugning the judgment and order dated

29.04.2005 on charge and consequent framing of

charge under Section 13(2) read with Section

13(1)(e) of the Prevention of Corruption Act

(hereinafter referred to as 'PC Act').

2. Petitioner was employed in Delhi Vidyut Board

(hereinafter referred to as 'DVB') since August

1974 as Meter Reader (Temporary). He was

promoted as Meter Reading Inspector on

27.12.1990, was given another promotion as Meter

Reading Inspector (TS) on 1.4.1991. In the year

2002, DESU was privatized and since thereafter

petitioner was transferred to BSES Rajdhani Power

Ltd. (hereinafter referred to as 'BSES'), where he is

presently working.

3. A written complaint was filed by Sub-Inspector Shri

Lalit Kaushik, CBI-ACB, New Delhi on 22.02.2002

against the petitioner under Section 13(2) read

with Section 13(1)(e) of the PC Act alleging therein

that the documents seized during the house search

of the petitioner in another case, he was found to

have acquired disproportionate assets. This

complaint culminated into registration of FIR No.

RC-DAI-2002-A-0009 dated 22.02.2002. After

completion of the investigation, chargesheet was

filed in the Court of the Special Judge. The trial

court, after taking cognizance of the offences as

aforesaid, summoned the petitioner and after

hearing the parties on charge was pleased to pass

the impugned order on 29.04.2005, wherein she

observed that prima facie the offence under

Section 13(2) read with Section 13(1)(e) was made

out against the petitioner. On the same date, she

framed charges against the petitioner. Aggrieved

by the said order on charge and consequent

framing of charge, petitioner has filed the present

revision petition.

4. Mr. Sandeep Sethi, learned senior counsel for the

petitioner has argued that the trial court erred in

framing charges against the petitioner as it failed

to take into consideration that during the said

period i.e. 19.08.1974 to 2.1.2002, petitioner was

employed with DVB and the chargesheet had been

filed without sanction from the appropriate

sanctioning authority and after enactment of Delhi

Electricity Reforms Act, 2000, DVB was unbundled

into various entities including the public entity

known as BSES Rajdhani Power Ltd. with which the

petitioner has been working pursuant to his

transfer. As per the scheme of transfer envisaged

by the said Act and the Rules framed thereunder,

petitioner continued to serve in BSES on the same

terms and conditions which were applicable to him

while in service with DVB and in no manner less

favourable than, or inferior to those which were

applicable to him immediately before his transfer.

5. Learned senior counsel for the petitioner further

submitted that as per sub-rule 8 of Rule 6 notified

on 20.11.2001 by Government of NCT of Delhi, all

statutory and other schemes in respect of

employment related matters, including the

provident fund, gratuity fund or special fund

created or existing for the benefit of the personnel

the relevant transferee would stand substituted for

the Board for all purposes and all the rights,

powers and obligations of the Board in relation to

any and all such matters would become those of

such transferee and the services of the personnel

would be treated as having been continuous for the

purpose of the application of this sub-rule.

6. It is further submitted that as per Rule 6 sub-rule

11, all the proceedings including pending against

the personnel prior to the date of the transfer from

the Board to the transferees, or which may relate

to misconduct, lapses or acts of commission or

omission committed before the date of transfer

would not abate and would be continued by the

relevant transferee and also that BSES is a joint

venture with the Government of NCT holding

shares in it and therefore the trial court went

wrong when it did not consider that chargesheet

had been filed against the petitioner without the

necessary sanction under Section 19 of the PC Act

and took cognizance of the offences. It is

emphasized by the learned senior counsel for the

petitioner that the court had no jurisdiction to take

cognizance of the offences as charged against the

petitioner without the necessary sanction and

therefore the impugned order is void ab initio,

without jurisdiction and is liable to be set aside.

7. Mr. Ashish Kumar appearing for the CBI has

argued that since after the transfer of the

petitioner to BSES, which is a private limited

company, petitioner ceased to be a Government

servant and in this case, the complaint against the

petitioner was received after he had joined BSES

and was charge-sheeted accordingly, since he

ceased to be a Government employee no sanction

under Section 19 of PC Act was required to be

obtained before filing the charge-sheet in the

Court. It is also argued that DVB was abolished on

1.7.2002 and the same was taken over by four

private companies and thus petitioner, who was

transferred to BSES, ceased to be a public servant

from the said date and therefore no sanction for his

prosecution was required as per provisions of

section 19(1)(c) of the PC Act. He further

submitted that the trial court has rightly,

judiciously and with due application of mind passed

the impugned order on charge against the

petitioner who had committed criminal misconduct

while working as meter reading inspector by

acquiring disproportionate assets to his own source

of income and there is no illegality committed by

the trial court while passing the impugned order

without sanction and therefore the revision petition

deserves dismissal.

8. Government of NCT of Delhi had formed a policy to

restructure DVB for the purposes of restoring the

operational and financial viability to meet the

future demand for sufficient supply of energy.

Since employees, engineers and officers including

junior engineers of DVB were apprehensive that on

restructuring of the DVB, they would be retrenched

or their service conditions would be adversely

affected, the Government of NCT of Delhi and DVB

entered into a Tripartite agreement with the Delhi

Vidyut Board Joint Action Committee which

consisted of Delhi State Electricity Workers' Union

(recognized), DESU Engineers Association

(Recognised), DVB Generation of Engineers and

Supervisors Association (recognized), DVB Officers

Association (recognized), DVB Sub-Station

Technical Staff Association (regd.) and DVB

Technical Employees Association (regd.)

representing workers, supervisors, engineers and

officers of DVB on 28.10.2000. Another similar

Tripartite agreement was executed with Delhi

Vidyut Board Junior Engineers Association

representing Junior Engineers of DVB on

9.11.2000. Both these agreements were notified by

the Department of Power.

9. Delhi Electricity Reforms Act came into force on

3.11.2000. Thereafter, the employees of DESU as

well as DVB were transferred to various companies

and the petitioner was transferred to BSES. He

was employed with DVB at the time of his transfer

to BSES. DVB was abolished on 1.7.2002 and after

1.7.2002, petitioner ceased to have any association

with his parent employer by virtue of DVB

becoming a non-entity after it was taken over by

BSES and other companies.

10. The FIR was registered on 22.02.2002. At that

time, petitioner was a public servant as he was

working with DVB. The charge-sheet was filed in

March, 2004 in the Court; after DVB became non

est and petitioner stood transferred to BSES. The

Court took cognizance of the offences under

Section 13(2) read with Section 13(1)(e) of the PC

Act on 29.04.2005.

11. The foremost question to be considered by this

Court is if petitioner continued to be a public

servant w.e.f. 1.7.2002 when DVB was taken over

by BSES and other companies and he stood

transferred to BSES and if sanction under Section

19 of PC Act was a pre-requisite condition for filing

of the charge-sheet and for taking cognizance of

the offences under the PC Act by the trial court. To

ascertain the status of the petitioner in BSES since

1.7.2002, I feel the necessity of referring to the

certain clauses contained in the Rules notified on

20.11.2001 under Delhi Electricity Reforms Act,

2000:

      "6. Transfer of Personnel
      (1)       ................
      (2)       ................
      (3)       ................
      (4)       ................
      (5)       ................
      (6)       ................

(7) subject to the provisions of the Act and these rules, the transferee may frame regulations governing the conditions of service of the personnel transferred to the transferees under these rules which shall not in any way be less favourable or inferior to those applicable to them immediately before

the transfer and till such time, the existing service conditions of the Board shall mutatis mutandis apply.

(8) subject to sub-rule (9) below, in respect of all statutory and other schemes and employment related matters, including the provident fund, gratuity fund, pension and any superannuation fund or special fund created or existing for the benefit of the personnel and the existing pensioners, the relevant transferee shall stand for the Board for all purposes and all the rights, powers and obligations of the Board in relation to any and all such matters shall become those of such transferee and the services of the personnel shall be treated as having been continuous for the purpose of the application of this sub-rule.

      (9)         ................
      (10)        ................

(11) All proceedings including disciplinary proceedings pending against the personnel prior to the date of the transfer from the date of the transfer from the Board to the transferees, or which may relate to misconduct, lapses or acts of commission or omission committed before the date of transfer, shall not abate and may be continued by the relevant transferee. (12) ................

(13) ................"

Thus it is clear that though BSES had all the

authority to frame its own regulations governing

the condition of service of the personnel

transferred to the said company under these Rules

but such regulations in no manner were to be less

favourable or inferior to the Rules and Regulations

which were applicable to the personnel, so

transferred to the transferee company and the

existing service condition of the Board, mutatis

mutandis continued to apply till such rules and

regulations were framed by the company. The

disciplinary proceedings and other proceedings

pending against the personnel prior to date of his

transfer from DVB to the company, which might

relate to his misconduct, lapses or acts of

commission or omission committed by him before

the date of transfer could also be continued by the

company and under no circumstance, those

proceedings were to abate on transfer. In other

words, all proceedings of whatever nature pending

with the Board would continue to be conducted by

the company even after DVB became non est, in the

same manner as if, the proceedings were being

conducted by DVB. These rules are absolutely

silent about the status of enquiry or proceedings

pending against a personnel transfered to the

company or are initiated subsequent to his transfer

for the misconduct etc. committed by him during

the period he was serving with DVB.

12. Learned senior counsel for the petitioner has

brought to my notice, clause 1 sub-clause a, b, f, g

and m of the Tripartite agreement entered into

between the Government of NCT of Delhi and DVB

Joint Action Committee (the Tripartite agreement

entered into between the Government of NCT of

Delhi and DVB Junior Engineers Association are

identical). From collective reading of these clauses

contained in Tripartite agreement, it is clear that

the terms and conditions of service upon transfer to

the corporate entity such as promotion, transfer,

leave and other allowances etc. regulated by

existing service rules i.e. Fundamental Rules and

Supplementary Rules (hereinafter referred to as

'FRSR') were guaranteed to continue and

applicable to the personnel so transferred

provided, there was mutual settlement for

modification of the same between the company and

the recognized union/association without detriment

to the existing benefits of the employees. All

benefits of the service rendered by the employees

in DVB as on the date of restructuring were

protected and given full effect to. The period of

service of the employees under DVB was to be

treated as continuous service for the purpose of all

service benefits and terminal benefits payable to

the personnel.

13. While executing this agreement, the foremost

concern of the parties was to ensure that there was

no retrenchment and service conditions of the

employees were not adversely affected in terms of

conditions of service i.e. length of service, their

salaries/wages, pension, etc. which were being

regulated by service rules contained in FRSR only.

14. Neither Tripartite agreement nor Delhi Electricity

Reforms Rules, 2001 made any provisions thereby

maintaining status of the employees as public

servant on their transfer to respective companies.

Similarly, no protection under Section 197 of the

Criminal Procedure Code (hereinafter referred to

as 'Cr.P.C.') nor Section 19 of the PC Act was

extended to the personnel so transferred after

1.7.2002 except pecuniary benefits and security of

job, pension etc. No other protection, as of a public

servant, was extended to the employees of DVB or

of DESU, after DVB became non-est. Service Rules

incorporated in FRSR, only regulate the service

condition of a public servant qua their length of

service, promotions, transfers, departmental

enquiries, termination from service and voluntary

retirement etc. FRSR in no manner can be said to

be protecting the status of the transferred

employees of DVB, as public servant for offences

covered under the PC Act and other offences for

which sanction under Section 19 of the PC Act or

Section 197 Cr.P.C. is a pre-requisite for

prosecuting him in a court of law.

15. Public Servant is defined in Section 2(c) of the PC

Act. It means and includes any person in the

service or pay of the Government or remunerated

by the Government by fees or commission for the

performance of any public duty; any person in the

service or pay of a local authority; any person in

the service or pay of a corporation established by

or under a Central, Provincial or State Act or an

authority or a body owned or controlled or aided by

the Government or a Government company and so

on. As per explanation 2 of this Section, wherever

the words 'public servant' occur, they shall be

understood of every person who is in actual

possession of the situation of a public servant,

whatever legal defect there may be in his right to

hold that situation.

16. In this case, after his transfer to BSES, petitioner

ceased to be a public servant because he ceased to

be in service of the Government and no longer

remained on the pay of the Government or

remunerated by the Government in any manner for

the performance of his duties and he was not

performing any public duty as a public servant.

Petitioner being an employee of DVB was a public

servant within the meaning of Section 2(c) of the

PC Act when the FIR was registered against him

but, he ceased to be a Government servant when

the charge-sheet was filed against him.

17. Therefore BSES cannot be termed as government

company as defined in Section 617 of the

Companies Act. The petitioner was a public

servant within the meaning of Section 2(c) of PC

Act while in employment of DESU which was a

public undertaking but, ceased to be a public

servant with the BSES and other companies having

completely taken over DESU. No sanction under

Section 19 of the PC Act was therefore required for

prosecuting the petitioner after he was transferred

to BSES, a private company. Now, he can be

removed from is office by BSES only for which no

sanction is required.

18. Petitioner at the same time can also not be termed

as a public servant as being employee of BSES he

is not connected with the affairs of the union or of a

state and can be removed by his employer without

any sanction of the Central or the State

Government as the case may be. Therefore, no

protection under Section 19 of the PC Act can be

claimed by the petitioner.

19. Needless to say that a public servant who commits

an offence within the meaning of PC Act while he

was discharging the public duty and continues to

discharge his duties as public servant can only be

prosecuted with the sanction contemplated under

Section 19 of the PC Act at the time when

chargesheet is filed against him. Without the

requisite sanction the Court has no jurisdiction to

take cognizance of an offence punishable under the

PC Act. However, if a public servant commits an

offence during his service as a public servant but

ceases to be a government servant when

chargesheet is filed against him, no sanction under

Section 19 of the PC Act is required. In such like

circumstances the Court is within its power to take

cognizance of the offence without such sanction.

Petitioner was a public servant when FIR was

registered against him on 22.2.2002. He ceased to

be a government servant with effect from 1.7.2002

when DVB was abolished and petitioner ceased to

have any relation with his parent employer who

became non-est after it was taken over by BSES

and other companies. The chargesheet was filed in

March 2004 in the Special Court against the

petitioner. On the date of filing of the chargesheet

petitioner no longer enjoyed the status of a public

servant being in employment of BSES, a private

company. The trial court therefore was within its

rights to consider the material placed on record

along with the chargesheet by CBI and take

cognizance of offences under Section 13(2) read

with Section 13(1)(e) of the PC Act against the

petitioner without the requisite sanction of the

appropriate authorities, since there was no

sanctioning authority in this case as DESU having

been lost its entity with effect from 1.7.2002.

20. I may also state that petitioner who had full

opportunity to raise the issue challenging the

jurisdiction of the Special Judge to take cognizance

of offences under PC Act for want of necessary

sanction under Section 19 of the PC Act before the

trial court did not avail of the said opportunity.

The issue of sanction has been raised for the first

time in the revision petition before this Court. No

explanation is forthcoming from the petitioner as to

why he failed to raise this legal objection to the

jurisdiction of the court to take cognizance of

offences under the PC Act against him. Section

19(3) of the PC Act operates bar on the jurisdiction

of a revisional/appellate court to reverse or alter an

order passed by a special judge on the ground of

absence of or any error omission or irregularity in

the sanction required under the Act unless the

Court is of the opinion that failure of justice has in

fact been occasioned thereby for determining

whether the absence, error, omission or

irregularity in the sanction is occasioned or

resulted in a failure of justice. While considering

so, the Court has to consider the fact whether such

objection could and should have been raised at an

earlier stage in the proceedings. As observed

above, petitioner failed to raise this objection

before the trial court which he had the occasion to

raise while addressing his arguments on charge.

Besides, even if it is presumed that petitioner

continued to be a public servant after he was

transferred and assumed his office in BSES a

private company, there is nothing on the record to

suggest that absence of sanction under Section 19

of the PC Act has caused failure of justice to him.

21. The revision petition being without any merits is

hereby dismissed.

22. Trial court record be sent back along with attested

copy of the order immediately through special

messenger.

(ARUNA SURESH) JUDGE February 06, 2009 rd