Madhya Pradesh High Court
K.K. Sharma vs The State Of Madhya Pradesh on 15 December, 2022
Author: Rohit Arya
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
CRIMINAL REVISION NO. 1980 OF 2022
BETWEEN:-
VINAY KUMAR GUPTA S/O LATE SHRI RAMBABU
GUPTA, AGED 62 YEARS, OCCUPATION -
GOVERNMENT SERVICE, ADDRESS - OFFICE OF
NAGAR PARISHAD, JD OFFICE, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI F.A.SHAH- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
EOW, DISTRICT GWALIOR
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC. NO. 23986 OF 2022
BETWEEN:-
A.K.BANSAL S/O LATE SHRI R.B.BANSAL, AGED 60
YEARS, OCCUPATION - SERVICE, R/O
2
JHUNDPURA, TAHSIL SABALGARH, DISTRICT
MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI R.K.SHARMA, SENIOR ADVOCATE WITH
SHRI V.K.AGRAWAL- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCES BUREAU, BHOPAL
(MADHYA PRADESH)
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC NO. 24409 OF 2022
BETWEEN:-
ANIL VERMA S/O LATE SHRI RAMESH CHANDRA
VERMA, AGE:56 YEARS, OCCUPATION : SERVICE,
R/O C-2, R.P. COLONY, TANSEN ROAD, GWALIOR
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SIDDHARTH SHARMA- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCE WING, BHOPAL (MADHYA
PRADESH)
...RESPONDENT
3
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
MCRC. NO. 27571 OF 2022
BETWEEN:-
K.K.SHARMA S/O LATE SHRI RAMCHARANLAL
SHARMA, AGE 61 YEARS, OCCUPATION -
SERVICE, R/O 357, NEW HOUSING BOARD
COLONY, MORENA (MADHYA PRADESH)
.....PETITIONER
(BY SHRI VIVEK KHEDKAR- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH THROUGH
ECONOMIC OFFENCE BUREAU, BHOPAL
(MADHYA PRADESH)
...RESPONDENT
(BY SHRI ANKUR MODY-ADDITIONAL ADVOCATE
GENERAL
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Reserved on : 12/12/2022
Pronounced on : 15/12/2022
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These petitions having been heard and reserved for
4
orders, coming on for pronouncement this day, Hon'ble Shri
Justice Rohit Arya pronounced the following:
ORDER
This batch of revision petition under S.397/401 of Cr.P.C.
and petitions under S.482 of the Cr.P.C. is directed against a
common order dated 6/5/2022 passed by Special Judge (under
the Prevention of Corruption Act, 1988 (for short "the PC
Act"), Morena in Special Case No. 02/2002, whereby on an
application filed by the prosecution under section 216 of the
Cr.P.C., the learned trial Judge, after an elapse of ten years, has
framed the charges for the offences punishable under sections
420 read with 120B of the IPC, 13(1)(d) and 13(2) of the PC
Act, in addition to the charges already framed earlier vide order
dated 7/5/2012 for the offences punishable under sections 120B,
465 and 471 of the IPC.
2. Facts essential for disposal of these petitions lie in a
narrow compass and are stated thus:
(i) Petitioners are employees of Municipal Council, Morena.
It is alleged that in connivance with other accused persons, they
hatched a conspiracy and in furtherance whereof procured
allotment of land falling in Survey Nos. 429, 430 and 431 of
Village Jaurakhurd in their favour, as well as, in favour of other
persons by wrongly ascribing the said land for sale in note-sheet
dated 11/11/94 despite knowing that it was reserved for Mela
Ground, Stadium and Commissioner Income Tax (State Govt),
Chamabal Division, besides mentioning its rate as 10/- per
square feet which was 90/- per square feet as per government
guideline.
(ii) In the wake of the aforesaid, vide order dated 7/5/2012,
charges for the offences punishable under sections 120B, 465
and 471 of the IPC were framed against the petitioners. The
learned trial Judge, while, framing the said charges, observed
that accused persons namely S/Shri A.K.Verma, K.K.Sharma,
Vinay Kumar Gupta, A.K.Bansal and R.P.Shukla were
employees of Nagar Palika Parishad. As per section 19(1)(c) of
the PC Act, no Court could take cognizance of an offence
punishable under sections 7, 11, 13 and 15 alleged to have been
committed by a public servant except with the previous sanction
of the authority competent to remove him from office. As per
section 94(4) of the M.P. Municipalities Act, 1961 (herienafter
referred to as the "Act of 1961"), the aforesaid employees could
be removed by the Nagar Palika Parishad only after approval of
the State Government. The learned Judge, accordingly, held that
from the above it was clear that as per Nagar Palika Adhiniyam,
only Nagar Palika Parishad was competent to grant sanction for
prosecution of aforesaid employees and the Nagar Palika
Parishad was not denuded of the said right merely for the reason
that approval of State Government was required for removal of
such employees. The learned Judge was further of the view that
Principal Secretary, Law and Legislative Department was not
competent to remove those employees and, therefore, the
sanction for prosecution given by him was nonest in the eyes of
law. In support of such conclusion, he relied upon decision of
the Apex Court in the case of Manoranjan Prasad Chaudhary
Vs. State of Bihar ((2002)10 SCC 688). So far as prosecution
for offences under the IPC in absence of sanction under section
197 of the Cr.P.C. is concerned, learned Judge observed that the
said accused persons were neither employees of Union of India,
nor had been employed in connection with the affairs of the
State of Madhya Pradesh, hence even in absence of sanction
under section 197 Cr.P.C., they were liable to be prosecuted for
the offences under the IPC. With the aforesaid reasoning,
charges for the offences punishable under sections 120B, 465
and 471, IPC were framed against the present petitioners.
(iii) On being charged with the aforesaid offences, the
petitioners abjured the guilt, leading to commencement of trial.
It took around ten years for the evidence to conclude, during
which period about 33 prosecution witnesses were examined.
Defence also examined its witnesses and the case was fixed for
delivery of judgment.
(iv) On 26/04/2022, prosecution moved an application under
section 216 of the Cr.P.C. seeking addition of charges for the
offences punishable under sections 420 of the IPC and 13(1)(d)
and 13(2) of the PC Act. The same was replied to by the
petitioners.
(v) However, vide impugned order dated 6/5/2022, learned
trial Judge took a different view of the matter and held that as
Nagar Palika Parishad was competent to remove the said
employees after obtaining approval from State Government, it
meant that the State Government was also competent to remove
them. Relying upon decision in the case of State of M.P. Vs.
Anand Mohan ((2015)9 SCC 35), the learned Judge held that
vide order dated 8/2/1988, the power to grant sanction was
delegated to the Department of Law and Justice and, therefore,
the sanction granted by the Principal Secretary, Law and
Legislative Department was a valid sanction. Accordingly,
charges for the offences punishable under sections 420 read with
120B of the IPC and 13(1)(d) and 13(2) of the PC Act have been
also been framed against the petitioners, aggrieved whereof, the
instant petitions have been filed.
3. Assailing the legality, validity and propriety of the order
dated 6/5/2022 framing additional charges under section 216 of
the Cr.P.C., learned counsel have made the following
submissions:-
(a) By the order dated 6/5/2022, the learned trial Judge has in
fact reviewed his earlier order dated 7/5/2012 after a gap of
about 10 years. No new material was brought before the Court.
In fact, the learned trial Judge has taken a somersault from his
earlier view in the context of sanction given by Principal
Secretary, Law and Legislative Department and, therefore, the
said order does not fall within the ambit of S.216 of the Cr.P.C.,
but in essence amounts to review which is barred under section
362 of the Cr.P.C.
(b) Learned trial Judge has also gone oblivion of the fact that
in this case the FIR was registered in the year 1996 and the
petitioners are facing the agony of trial for last 26 years. The
evidence is closed and the case is at the stage of judgment. Now,
such amendment of charges would result in a denovo trial
which may go for another 20 years and, as such, substantial
prejudice would be caused to the petitioners.
(c) The order dated 7/5/2012 has not been challenged by the
prosecution/respondent in any Superior Court till date and, as
such, the same has attained finality and cannot be reviewed.
(d) As per decision of this Court in the case of State of M.P.
Vs. Ashok Kumar Sharma (2008 (3) JLJ 34), petitioners are
employees of the Municipality and not of the State Government,
therefore, the sanction granted by the Principal Secretary, Law
and Legislative Department is of no avail in case of the
petitioners in view of section 94(4) of the Act of 1961.
(e) The decision relied upon by learned trial Judge in the case
of Anand Mohan (Supra) was of no avail, being
distinguishable on facts.
4. Per contra learned Additional Advocate General
supported the impugned order dated 6/5/2022 altering the
charges framed earlier on 7/5/2012, with the submission that
that the learned trial Judge has framed additional charges under
S.216 of the Cr.P.C.., which specifically provides that a Court
may alter or add to any charge at any time before judgment is
pronounced. The charges under the PC Act have been added
when the case was fixed for delivery of judgment. As such, no
exception can be taken thereto in the light of the mandate of
S.216 of the Cr.P.C.. So far as the imputation of prejudice with
addition of charge at such belated stage is concerned, that plea
also cannot be countenanced in the wake of sub-section (4) of
S.216 of the Cr.P.C. which encompasses specific safeguards in
such an eventuality to avoid any prejudice. He further submitted
that in view of decision of Apex Court in the case of Anand
Mohan (Supra), the sanction granted by the Secretary, Law and
Legislative Affairs Department is a valid sanction and, therefore,
the incorrect view taken by the earlier Presiding Officer has
rightly been rectified by the learned trial Judge. The same does
not amount to review as the Apex Court in the case of Anant
Prakash Sinha Vs. State of Haryana ((2016)6 SCC 105) has
categorically held that the Court can change or alter the charge if
there is defect or something is left out. The test is, it must be
founded on the material available on record. It can be on the
basis of complaint or the FIR or accompanying documents or
material brought on record during the course of trial. In the
instant case, there was a defect in framing of charges, which has
been addressed by the order impugned. Besides, S.362 of the
Cr.P.C. forbiding alteration or review except for clerical or
arithmetical errors, operates in cases of judgment and final
orders and the order framing charge does not fall in either of the
categories. Hence, the order impugned being impeccable, does
not deserve any interference and the present petitions are liable
to be dismissed at the threshold.
5. Heard, learned counsel for the parties.
6. So far as the submissions of learned Additional Advocate
General with regard to sections 216 and 362 of the Cr.P.C., as
detailed above, are concerned, we do not find the same to be
pregnable. However, the genesis of the controversy in hand is
the sanction granted by the Principal Secretary, Law and
Legislative Affairs Department that has formed the substratum
of the additional charges framed under the PC Act by the order
impugned, particularly in absence of any sanction by the
Municipal Council. It is worthwhile to recapitulate that by the
order impugned, inter alia charges for the offences punishable
under sections 13(1)(d) and 13(2) of the PC Act have been
framed against the petitioners. In this behalf, sub-sections (1)
and (2) of S.19 of the PC Act that necessitate previous sanction
for prosecution are pertinent and the same read thus:-
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 save as otherwise
provided in the Lokpal and Lokayuktas Act, 2013 (1
of 2014)]-- (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.
(2) Where for any reason whatsoever any doubt
arises as to whether the previous sanction as required
under sub-section (1) should be given by the Central
Government or the State Government or any other
authority, such sanction shall be given by that
Government or authority which would have been
competent to remove the public servant from his
office at the time when the offence was alleged to
have been committed.
(Emphasis supplied)
7. Thus, from the above it is clear that for taking cognizance
for the offence punishable under section 13 of the PC Act,
previous sanction of the Authority competent to remove them
from service is imperative. In the instant case, the sanction has
not been accorded by the Municipal Council, but by Principal
Secretary, Law and Legislative Affairs. As such, the pivotal
question governing the validity of such sanction that arises for
consideration is :
"Whether on facts and in the circumstances of the case
the petitioners can be removed from service:
(i) by the Municipal Council, or;
(ii) by the State Government, or;
(iii) by the Municipal Council with approval of the
State Government;
In other words who is the competent Authority for
imposition of penalty of removal on petitioners ?
8. Admittedly, petitioners Vinay Kumar Gupta, A.K.Bansal,
Anil Verma and K.K.Sharma, during the relevant period, were
posted as Assistant Engineer, Revenue Inspector and Sub
Engineers respectively at Municipal Council, Morena and, as
such, their services are governed by the provisions of the Act of
1961 and Madhya Pradesh Municipal Employees Recruitment
and Conditions of Service Rules, 1968 framed thereunder (for
brevity "the Rules of 1968").
Chapter IV of the Act of 1961 captioned "Chief Municipal
Officer and Staff of Municipality" inter alia deals with
Constitution of State Municipal Service and engagement of
staff. Schedule I appended thereto amongst others enlists
Assistant Engineer, Sub-Engineer and Revenue Inspector as
Municipal Employees. Section 94 provides for Appointment of
Staff. Sub-sections (1), (3) and (6) of the pre-amended section
94 which was applicable till 5/8/2014; relevant for the purpose,
are reproduced for ready reference:-
"(1) Every Council shall, subject to rules framed
under Section 95 and in addition to appointment of
members of the Municipal Services of the State
under sub-section (1) of section 86, appoint such
other officers and servants as may be necessary and
proper for the efficient discharge of its duties, as
per the norms specified from time to time by the
State Government.
(3) The appointment of Revenue Officer,
Accounts Officer, Sanitary Inspector, Sub-
Engineer, Revenue Inspector and Accountant shall
be subject to confirmation by the State Government
and no such post or the post of any other officer or
servant as may be specified by the State
Government in this behalf shall be created or
abolished and no alterations in the emoluments
thereof shall be made without the previous
approval of the State Government, and every
appointment to, and dismissal from such post, shall
be subject to a like approval.
(6) Unless the State Government otherwise
directs the power of appointing Municipal Officers
and servants other than those mentioned in or
specified under sub-section (4) shall vest in the
President-in-Council"
(Emphasis supplied)
Rule 2(e) of the Rules of 1968 defines "Municipal
Employee" to mean a person appointed to or borne on the cadre
of the Municipal staff other than an member of State Municipal
Service (Executive).
Rule 2(f) of the Rules of 1968 characterizes "Municipal
Service" as service or group of posts in connection with the
affairs of the Municipality other than the State Municipal
Service (Executive).
Part XII of the Rules of 1968 deals with Control and
Discipline. Rules 48 and 49 respectively provide for Control and
Discipline and the same read thus:-
48. Control - All Municipal employees shall be subject
to the superintendence and control of the Council.
49. Penalties - The following penalties may, for good
and sufficient reasons as hereinafter provided, be imposed on a
municipal employee, namely :-
Minor Penalties
(i) .... .... ....
(ii) .... .... ....
(iii) .... .... ....
(iv) .... .... ....
Major Penalties
(v) .... .... ....
(vi) .... .... ....
(vii) compulsory retirement;
(viii) removal from municipal service which shall not be
a disqualification for future employment;
(ix) dismissal from municipal service which shall
ordinarily be a disqualification for future employment;"
Rule 51 thereof provides for Disciplinary Authoriites and
reads thus:-
"51. Disciplinary authorities - Subject to the
provisions of the Act and these rules the Municipal
Council shall have the powers to impose any of the
penalties specified in rule 49 on any municipal
employee holding post specified in sub-section (4) of
section 94 of the Act and in the case of other
municipal employees the Standing Committee shall
have the power to impose any of the said penalties
on him".
(Emphasis supplied)
Thus, from the above, it is explicit that petitioners are the
employees of Municipal Council and the power to remove them
from service vests with the Municipal Council subject to the
provisions of S.94(4) of the Act of 1961 quoted above.
9. In view of the aforesaid discussion, it is crystal clear that
unless Municipal Council passes an order of removal of a
Municipal Employee under Rule 49 of the Rules of 1968, albeit
with observance of due process of law, the stage of according
approval by the State Government under section 94(4) of the Act
of 1961 does not not come into existence. Under such
circumstances, the requirement of mandate as contained under
section 19(1)(c) of the PC Act relating to sanction for
prosecution has to be understood in the context of section 94(4)
of the Act of 1961 read with Rules 49 and 51 of the Rules of
1968. In other words, unless the Municipal Council decides to
remove the municipal employees enlisted in S.94(4) viz.
Revenue Officer, Accounts Officer, Sanitary Inspector, Sub-
Engineer, Revenue Inspector and Accountant, the question of
according approval thereto by the State Government, as
provided for in the said section, would not arise, as aforesaid.
Consequently, for a valid sanction for prosecution as
contemplated in section 19(1) of the PC Act, firstly the
Municipal Council, upon due deliberation, must decide to
accord sanction which the Government is required to approve,
otherwise the same cannot be termed as a valid sanction.
Hence, the answer to question nos. (i) and (ii) above is in
negative, while that to question no.(iii) is in affirmative.
10. In view of the aforesaid discussion, the sanction granted
by Principal Secretary in absence of any order/recommendation
for removal by the Municipal Council cannot be termed as a
valid sanction. The ratio of judgment in Anand Mohan (Supra)
relied upon by the learned trial Judge in fact has no bearing to
the factual matrix in hand. In the said case, for prosecuting
Engineers working with the Bhopal Development Authority, the
Economic Offences Wing had sought sanction under section
19(1)(c) of the PC Act from the State Government. The
Secretary, Housing and Environment declined to grant sanction.
However, the sanction was accorded by the Department of Law
and Legislative Affairs vide order dated 20/11/2012. The said
order was challenged in the High Court on the premise that the
Department of Housing and Environment had already declined
sanction vide order dated 8/3/2011, therefore, the Department of
Law and Legislative Affairs had no authority to accord sanction
by the impugned order dated 20/11/2012. The High Court also
observed that the Econcomic Offences Wing did not challenge
the legality and validity of the order dated 8.3.2011 and had
submitted charge-sheet. The High Court opined that as the
Department of Law and Legislative Affairs was granted power
to grant sanction only vide circular dated 28/2/1998, therefore, it
was not competent to grant sanction in respect of offences
alleged to have been committed in the year 1997. The Hon'ble
Supreme Court set aside the order of the High Court and
observed in paragraph 14 as under:-
"14. We are unable to accept the view taken by the
High Court for the reason that from annexure P-1
and annexure P-2, it is evident that the power to
grant the sanction for prosecution, already existed
with the Department of Law and Legislative Affairs,
since February, 1988. The circular letter dated
28.02.1998 (Annexure P-5) does not confer any new
power and it only clarifies that Department of Law
and Justice is a competent authority not only in
respect of investigations made by Lokayukta
Organization, but also the State Economic Offences
Investigation Wing. The power with the appellant
No.2 to grant the sanction is, in fact, conferred by the
rule as amended vide notification dated 03.02.1988
published in the Official Gazette. After such
amendment in the rule whereby power to grant
sanction was delegated to Department of Law and
Justice, it cannot said that Administrative
Department had power to decline sanction as it has
done vide its order dated 10.07.1997. "
(Emphasis supplied)
Apparently, the said judgment has no application to the factual
matrix in hand in view of the fact that the petitioners are
employees of the Municipal Council and have not been
appointed in connection with the affairs of the State, contrary to
the facts in the said ratio, as is explicit from the following
extract:-
"8. From the section quoted above, it is
clear that sanction for prosecution in respect of the
public servant employed in connection with the
affairs of the State, who is not removable from his
office save by or with the sanction of the State
Government, such Government shall be, authority
to grant sanction for prosecution. It is not disputed
that the previous sanction was sought by EOW for
prosecution of the respondents. The only issue is as
to which of the departments of the State was
competent to grant the sanction......."
(Emphasis supplied)
11. At this stage, it is considered apposite to deal with the
order dated 10/8/2017 passed by learned Single Judge in Cr.R.
No.365/2012 (Vinay Kumar Vs. State of Madhya Pradesh) and
Cr.R. No. 969/2013 (A.K.Bansal Vs. State of Madhya Pradesh),
who are also petitioners in the instant case. At the relevant point
of time, petitioners therein namely Vinay Kumar and A.K.Bansal
were working as Assistant Engineer and Revenue Inspector
respectively at Municipal Council, Morena. Undisputedly, their
service conditions were regulated by the Rules of 1968 as both
were municipal employees within the meaning of Rule 2(e) of
the Rules of 1968 framed under sub-section (1) of S.355 read
with S.95 of the Act of 1961 and members of Municipal Service
as defined under Rule 2(f) thereof, and were not members of
State Municipal Service under sub-section (1) of section 86 of
the Act of 1961 as service conditions of members of such
services are governed by M.P. State Municipal Service
(Executive) Rules, 1973.
The aforesaid two persons challenged on merits the order
dated 7/5/2012 framing charges for the offences punishable
under sections 120B, 465 and 471 of the IPC, inter alia with the
contention that the State Government (Department of Law and
Legislative Affairs, Bhopal) was not competent to accord
sanction for prosecution. As a matter of fact, the contention
relating to sanction by Government in the context of charges
framed under the IPC was misplaced and misdirected for the
simple reason that no sanction is required to prosecute a
municipal employee for the offences under the IPC, as under
section 197 of the Cr.P.C., protection of prior sanction is
available only to public servants who have been appointed by
the Central or State Government and employed in connection
with the affairs of that Government. However, the learned
Single Judge dealt with the contention in the context of S.19(1)
(c) of the PC Act though no charge was framed under the PC
Act at that time. Therefore, firstly the issue of competence of
the State Government for according sanction for prosecution did
not arise and secondly the same could not have been answered
in the context of S.19(1)(c) of the PC Act as there was no charge
framed under the PC Act.
However, the said order is required to be examined as
now in the changed circumstances, by the order impugned, the
Court below has framed charges against the petitioners
including those before the learned Single Judge under sections
13(1)(d) and 13(2) of the PC Act.
If the dictum of the learned Single Judge is applied, the
sanction accorded by the State Government through Law and
Legislative Affairs Department is a valid sanction within the
meaning of S.19(1)(c) of the PC Act for taking cognizance for
the offences punishable under sections 13(1)(d) and 13(2) of the
PC Act. The aforesaid view of learned Single Judge rests upon
the observations of the Hon'ble Supreme Court in the case of
State of T.N. Vs. T.Thulasingham & Others (1994 Supp (2)
SCC 405) and State of M.P.Vs. Pradeep Kumar Gupta
((2011)6 SCC 389).
Before dealing with the applicability of aforesaid two
cases, it is expedient to observe that the learned Single Judge
did not deal with the fact that the petitioners were municipal
employees within the meaning of Rule 2(e) of the Rules of
1968 framed under sub-section (1) of S.355 read with S.95 of
the Act of 1961 and appointed under S.94(4) of the Act of 1961
by the Municipal Council with the approval of the State
Government. For this reason, the judgment of the Hon'ble
Supreme Court in Pradeep Kumar Gupta (Supra) had no
application to the facts in hand, inasmuch as in the said case
Pradeep Kumar Gupta, posted as an Engineer in Municipal
Corporation, was a member of Municipal Services for the State
constituted under sub-section (1) of section 86 of the Act of
1961 as defined under Rule 2(i) of the M.P. Municipal Service
(Executive) Rules, 1973 which regulated his service conditions.
Rule 2(b) of the said Rules defines "Appointing Authority" to
mean State Government in respect to Select Grades Class I,
Class II and Class III Chief Municipal Officers. Under such
circumstances, the Hon'ble Supreme Court held that the State
Government was competent to grant sanction for prosecution as
required under section 19(1)(c) of the PC Act.
Before taking note of judgment rendered by the Hon'ble
Supreme Court in T.Thulasingham (Supra), it is worthwhile to
mention that the factual matrix reported in the judgment does
not spell out the facts having bearing on the observations of the
Hon'ble Apex Court in Paragraph 77 thereof. Even otherwise,
the Hon'ble Supreme Court has rejected the contention that only
Special Officer appointed by the Corporation when the
Corporation was superseded, was competent to grant sanction
for prosecution of the delinquent therein, with the observation
that if the sanction was granted by the Government which itself
had appointed the Special Officer, the same cannot be faulted
with. However, in the case in hand, as discussed above, under
section 94(4) of the Act of 1961, Municipal Council is the
competent Authority to make appointment of the Municipal
Employees enlisted therein with approval of the State
Government. Similar approval is required for their dismissal.
Therefore, the stage of approval of the State Government to their
appointment or removal arises only after the Municipal Council
issues an order/recommendation for appointing or removing
them. That apart, the Municipal Council is not appointed by the
State Government, but is is constituted under section 5 of the
Act of 1961 r/w Article 243Q of the Constitution. Therefore,
reliance on the said judgment by the learned Single Judge is also
misplaced.
Hence, view of the learned Single Judge in the context of
validity of sanction by the State Government under section
19(1)(c) of the PC Act for Municipal Employees in absence of
recommendation of the Municipal Council; relevant for the
purpose of the instant case, in our considered opinion, does not
withstand judicial scrutiny. Accordingly, to that extent, the
judgment is overruled.
12. A decision of co-ordinate Bench of this Court in respect
of petitioner Kamal Kishore Sharma Vs. State of Madhya
Pradesh Through Police Station Economic Offence rendered
in M.Cr.C. No.19218/2017, which was a petition under S.482 of
the Cr.P.C., has also been brought to fore by learned counsel for
the State. The said petition was filed by petitioner Kamal
Kishore Sharma seeking quashment of FIR registered at Crime
No.40/1996 in respect of the offences punishable under section
120B, 420 of the IPC and 13(1)(d) & 13(2) of the PC Act. The
co-ordinate Bench of this Court, while dismissing the petition,
in paragraph 12 placing reliance on decision in the case of
Thulasingham (Supra) has observed that the State Government
partook as the Authority competent to remove the petitioner
from the post satisfying the requirement of section 19(1)(c) of
the PC Act.
The decision in the case of Thulsingham (Supra) which
forms the premise of such observations by the learned co-
ordinate Bench has already been found to be distinguishable on
facts, as discussed above in paragraph 11. That apart, regard
being had to the nature of order passed, in absence of pleadings
and non consideration of relevant provisions of the Act of 1961
and Rules of 1968, the same cannot be construed to have laid
down a law having enforceability on the principles of stare
decisis. Likewise, no contentions were advanced related to
definition of Municipal Employee their appointment and
removal i.e. Rules 2(e), 48, 49, 51 of the Rules of 1968 and pre-
amended S.94 of the Act of 1961 and, therefore, not considered
in the aforesaid case to address the issue of competence of State
Governmnent to accord sanction under section 19(1)(c) of the
PC Act. Hence, the said decision, in our considered view, is sub
silentio. As such, we find it difficult to concur with the same and
respectfully record our disagreement.
13. In view of the aforesaid, it can safely be deduced that the
sanction granted by the Principal Secretary, Law and Legislative
Affairs is not a valid sanction to prosecute the petitioners for the
offences under sections 13(1)(d) and 13(2) of the Act. As such,
the additional charges framed under Ss. 13(1)(d) and 13(2) of
the PC Act against the petitioners on the strength of such
sanction, by virtue of the impugned order dated 6/5/2022,
cannot be sustained and are, accordingly, set aside.
Resultantly, the petitions stand allowed to the extent
indicated above.
(Rohit Arya) (Milind Ramesh Phadke)
Judge Judge
(and)
ANAND
SHRIVASTAVA
2022.12.16
10:52:07
+05'30'
