Govind Mathur, J.@mdashThe Petitioners are in employment of the State of Rajasthan and having their lien with the department of irrigation. The Chief Engineer, Water Resources (North Zone), Hanumangarh Junction, is the authority competent to remove the Petitioners from service, thus, as per provisions of Section 19(1)(c) of the Prevention of Corruption Act, 1988 (hereinafter to be referred to as, "the Act of 1988") by an order dated 11.1.2010 he granted sanction to prosecute the Petitioners for the offences punishable u/s 13(1)(d)(e) and Section 13(2) of the Act of 1988 and also placed them under suspension vide order dated 13.1.2010. To question the correctness of the orders aforesaid this petition for writ is preferred.
2. In brief, facts of the case are that the officials of the Anti-Corruption Bureau, Sriganganagar by acting upon some information, visited the office of Executive Engineer, Rajasthan State Water Resources Project, Sriganganagar and Executive Engineer, Gang Nahar, Link Channel Division, Sriganganagar, and on making certain search they recovered a sum of Rs. 4635 from the Petitioner Subhash Bhatia, a sum of Rs. 10,000/-, Rs. 34,000/-, Rs. 7275/-, Rs. 7270/-, Rs. 3920/- and Rs. 2460/- from Petitioners Nanak Chand, Laxmi Narayan, Raj Bux, Mohan Singh Rajvi, Lalit Kumar and Hanuman Sahai respectively. On recovery of the amount aforesaid explanation was tendered by the Petitioners, however, the officers of the Anti-Corruption Bureau registered a criminal case (FIR No. 207/2006) on 2.8.2006 at Outpost Sriganganagar, Principal Police Station, Jaipur. The Sup dt. of Police, Anti Corruption Bureau by letter dated 19.11.2007 requested the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction to consider and grant the sanction for prosecution of the Petitioners. In pursuant to the communication aforesaid the competent authority i.e. Respondent No. 3 considered the matter and after having deliberations with the investigating officer reached at the conclusion that no case was made out to prosecute the Petitioners, though there may be a case to initiate disciplinary action, as per the provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. An opinion was accordingly forwarded under a letter dated 20.2.2009 to the Chief Engineer, Water Resources Department, Rajasthan, Jaipur. The office of the Chief Engineer, Water Resources Department, Government of Rajasthan, Jaipur under a letter dated 16.4.2009 remitted the matter to the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction to take appropriate decision at his own level being the authority competent, as per the Act of 1988. On receipt of the letter dated 16.4.2009 the Chief Engineer, Water Resources (North Zone); Hanumangarh Junction again referred the matter to Chief Engineer, Water Resources Department, Jaipur detailing therein that in view of the Department of Personnel Circular dated 30.5.2001 an action was required to be taken at department level and not at the level of zone. The Chief Engineer, Water Resources Department again sent entire record to the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction with advice to forward the matter to the Secretary to the Government of Rajasthan. Accordingly, a detailed report was sent to the Deputy Secretary, Water Resources Department under a letter dated 31.7.2009. On receiving the letter aforesaid the Deputy Secretary by his letter dated 10.8.2009 sought comments in the matter from the Chief Engineer, Bisalpur Project, however, he refused to make any comment in view of the fact that necessary comments were already made by the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction. In such circumstances, under a letter dated 5.11.2009 the Deputy Secretary to the Government of Rajasthan, Department of Water Resources remitted the matter to the Chief Engineer, Water Resources (North Zone) for reconsideration. The authority competent i.e. Chief Engineer (North Zone), Hanumangarh Junction under a letter dated 1.12.2009 after examining the material available reiterated his earlier opinion. On receipt of the letter dated 1.12.2009 the Deputy Secretary under a letter dated 31.12.2009 directed the Chief Engineer, Water Resources (North Zone) to grant the sanction for prosecution of the Petitioners immediately. The letter dated 31.12.2009 reads as under:
3. In pursuant to the letter dated 31.12.2009 the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction granted sanction to prosecute the Petitioners under a letter dated 11.1.2010 that reads as under:
4. The Chief Engineer, Water Resources (North Zone), Hanumangarh Junction after granting sanction for prosecuting the Petitioners, also placed them under suspension vide order dated 13.1.2010.
5. While challenging the order dated 11.1.2010 the contention of learned Counsel for the Petitioner is that as per Section 19(1)(c) of the Act of 1988 sanction for prosecution is required to be given by the authority competent to remove the public servant concerned from service, however, in the instant matter such sanction has been granted by the authority competent without application of his mind and just by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan, Department of Water Resources. It is asserted that the instant one is a case where the powers of the authority competent have been abducted by the Deputy Secretary. As such, the sanction granted is not in accordance with the true spirit of the provisions of Section 9(1)(c) of the Act of 1988. To substantiate the contention reliance is placed by learned Counsel for the Petitioner upon the judgment of Hon''ble Supreme Court in State of Karnataka v. Ameerjan (reported in 2008 (1) SCC130). In the case aforesaid Hon''ble Supreme Court held as under:
that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 10 For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granted sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.
6. Reliance is also placed upon a Single Bench judgment of this Court in Kishan Lal v. State of Rajasthan and Ors. In the case aforesaid this Court while dealing with the issue regarding application of mind by the authority competent at the time of granting sanction as per provisions of Section 19(1)(c) of the Act of 1988 held as under:
Section 19(1)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable u/s 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered u/s 19(1)(a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the Petitioner from office is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the Petitioner with regard to any deal relating to the complainant Sh. Shankar Lal. Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State Investigation Bureau, Jaipur for not granting sanction for prosecution of the Petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed the Chief Engineer to issue sanction required for prosecution of the Petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the Petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the Petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the Petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind.
In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the Petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the Petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction.
7. While meeting with the arguments advanced by learned Counsel for the Petitioner it is submitted on behalf of the Respondents that before granting sanction under order dated 11.1.2010 the authority competent adequately applied its mind by going through the entire record available. The stand of the Respondents as averred in reply to the writ petition reads as follows:
That the contents of para 23 of the writ petition are not admitted as alleged hence denied. It is wrong to say that order dated 11.01.2010 has been passed by the disciplinary Authority without any application of mind. The Chief Engineer, Water Resources (North) Hanumangarh is competent to pass such orders. As the Anti corruption bureau had leveled charges of corruption against these employees as such there was a prima facia case against them so the instructions of the administrative department were complied with as per rules. 24. That the contents of para 24 of the writ petition are not admitted as alleged hence denied. The matter was investigated by the Chief Engineer Water Resources (North) Hanumangarh the same was conveyed to the Administrative Department. The report of the Chief Engineer, Water Resources (north) Hanumangarh was analysed by the administrative department and the administrative department found that the sanction to grant permission for prosecution must be issued. The Administrative Department is controlling office so the instruction so issued is not in contravention to any rule or law.
8. Learned Counsel for the Respondents also placed reliance upon a judgment of Hon''ble Supreme Court in
9. Reliance is also placed by learned Counsel for the Respondents upon a judgment of Hon''ble Apex Court in
Heard counsel for the parties.
10. Precisely, the issue involved in this petition for writ is that, whether while exercising powers u/s 19(1)(c) of the Act of 1988 a mandate can be granted by the State to the authority competent to accord sanction for prosecution. Section 19(1)(c) of the Act of 1988 statutorily empowers the authority competent to remove a person from office for grant of sanction to prosecute him for the offences punishable under Sections 7, 10, 11, 13 and 15 of the Act of 1988.
11. The authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department. The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed. If any extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution.
12. Keeping in mind, the above mentioned intention of the Legislature, Hon''ble Supreme Court in State of Karnataka v. Ameerjan (supra) authoritatively held that 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. For the same reason, this Court too in the case of Kishan Lal (supra) held that the statutory power given to the authority competent is required to be exercised by the authority concerned and not by any body else.
13. In the case in hand, the authority competent after considering entire material available on record and after due deliberations with the investigating officer reached at a definite conclusion that the instant one is not a case for grant of sanction to prosecute the public servant though that may be a case appropriate in taking a disciplinary action. On receiving the opinion of the authority competent the Deputy Secretary to the Government of Rajasthan instructed the authority competent to reconsider the matter and on reconsideration also the opinion given earlier was reiterated by the competent authority. Only after such reiteration the Deputy Secretary to the Government of Rajasthan vide letter dated 31.12.2009 issued a mandate to the authority competent for granting the sanction and just by acting upon the instructions given by the Deputy Secretary, the competent authority granted sanction to prosecute the Petitioners. A plain reading of the order dated 11.1.2010 makes it abundantly clear that the sanction for prosecution was granted just in compliance of the instructions given under the letter dated 31.12.2009. This clearly establishes the non application of mind by the authority competent, due to undesired interference of the Deputy Secretary, while granting sanction for prosecution as per the provisions of Section 19(1)(c) of the Act of 1988. The action of the Respondents, thus, is definitely contrary to the spirit of the provisions of Section 19 aforesaid and also to the law laid down by Hon''ble Supreme Court in the case of State of Karnataka v. Ameerjan (supra).
14. The law laid down by Hon''ble Supreme Court in the case of Sup dt. of Police (CBI) (supra) is having no application in the present case as in the matter aforesaid the issue was regarding compliance of the principles of natural justice while granting sanction to prosecute a public servant and not regarding the application of mind by the authority competent while exercising the powers u/s 19(1)(c) of the Act of 1988. Similarly, in the case of State of Bihar v. P.P. Sharma (supra) too the issue was entirely different. In the case in hand this Court is not examining merits of the allegations against the Petitioners, but the course adopted while granting sanction as per provisions of Section 19(1)(c) of the Act of 1988.
15. In view of the discussion made above I am of the opinion that while granting sanction to prosecute the Petitioners under the order dated 11.1.2010 the authority competent has not applied its independent mind and that makes the sanction so granted bad, accordingly, the same deserves to be quashed.
16. The order of suspension dated 13.1.2010 is solely based on the grant of sanction to prosecute the Petitioners under the order dated 11.1.2010. It is stated by learned Counsel for the Respondents that certain instructions are given by the State Government to place an incumbent under suspension immediately on grant of sanction for his prosecution under the Prevention of Corruption Act. This Court had an occasion in Samrath Singh v. State of Rajasthan (reported in 2010(2) RLW Page 1670 to examine correctness of such kind of instructions given to place an incumbent under suspension mandatorily. The view taken in the case aforesaid deserves to be quoted as under:
True it is, suspension of a civil servant is an administrative action and the government is having ample power to provide necessary guidelines to the competent authorities for exercising powers as per Rule 13, but at the same time it is also well settled that the administrative instructions can always be given to fill up the unoccupied field, however, such instructions in no way encroach the space already under occupation of an statute. In the present case the circular dated 10.8.2001 nowhere provides instructions to the competent authority as to how powers under Rule 13 are required to be exercised, but it imposes mandate upon the discretion of the competent authority. Such imposition of a mandate over statutory discretion is not permissible under administrative jurisprudence. The State Government would have been right in providing guidelines or a mode to exercise discretion under Rule 13 of the Rules of 1958. The State Government could have given instances and instructions to the competent authority to exercise its discretion to place an incumbent under suspension in particular circumstances but not an order to place government servant under suspension mandatorily in specific cases. It is for the competent authority to examine facts of each and every case and to settle desirability to place an incumbent under suspension by applying objective discretion. The suspension of an employee, looking to the facts and circumstances of the case may be desired urgently or on emergent basis but in those circumstances also the competent authority must record its satisfaction for exercising powers under Rule 13. If such satisfaction is not recorded and suspension is made merely on basis of the instructions given in circulars or merely by a word of mouth or by slip of pen, then that is nothing but colourable exercise of power.
17. In the case in hand, the Petitioners have been placed under suspension without adequate application of mind and just by acting upon the mandatory instructions issued by the State Government. In view of it, and also in view of the fact that the sanction granted for prosecution too is bad, the order of suspension also deserves to be quashed.
18. Accordingly, this petition for writ is allowed. The order dated 11.1.2010 passed by the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction granting sanction to prosecute the Petitioners for the offences punishable under the Act of 1988 is declared illegal, and therefore, the same is quashed. The order dated 13.1.2010 passed by the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction placing the Petitioners under suspension as a consequent to grant of sanction under the order dated 11.1.2010 is also declared illegal and the same is also quashed. However, this order shall not preclude the authority competent to reconsider the matter afresh at his own level in accordance with law. No order as to costs.
