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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Hanuman Singh Vishnoi v. State of Rajasthan & Ors.
S.B.CIVIL WRIT PETITION NO.3628/2007
under Article 226 of the Constitution
of India.
Date of Order :: 14th October, 2009
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. CS Kotwani, for the petitioner.
Mr. GR Punia, Additional Advocate General.
Mr. LK Purohit, for the respondents.
....
BY THE COURT :
The Chief Engineer, Bisalpur Project-cum-
Establishment (Non-Gazetted), Department of Water
Resources, Government of Rajasthan, Jaipur, while
exercising powers under Section 19 of the Prevention
of Corruption Act, 1988 (hereinafter referred to as
“the Act of 1988”), granted sanction to prosecute the
petitioner for various offences punishable under the
Act of 1988. The petitioner was also placed under
suspension as per Rule 13(1)(d) of the Rajasthan Civil
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Services (Classification, Control & Appeal) Rules,
1958 (hereinafter referred to as “the Rules of 1958”)
by an order dated 30.5.2007. To assail validity of the
orders aforesaid this petition for writ was presented
before this Court on 11.6.2007, but the suspension has
already been revoked on 29.8.2007 and as such now
challenge survives only to the extent of approval for
prosecution.
The factual matrix necessary to be noticed,
as per the original record available, is that the
petitioner while working as Junior Engineer at Munda-
II submitted a complaint to the competent authority
regarding an encroachment made by Shri Satpal son of
Shri Madanlal upon the area closed to Masitawali Head
Chak-1, NDR Canal. On 8.12.2005, above named Shri
Satpal made a complaint to Anti Corruption Bureau,
Hanumangarh stating therein that the petitioner is
demanding illegal gratification for not removing the
encroachment made by him and on basis of the complaint
aforesaid a trap was planned and organised on
8.12.2005, accordingly at about 4:30 p.m. on the same
day Shri Satpal offered a sum of Rs.2000/- to a person
namely Sitaram said to be a person to whom money was
to be given under instructions of the petitioner and
he accepted the same. The trap party conducted usual
proceedings and lodged a criminal case against the
petitioner. After the incident of trap office of the
Chief Engineer, Bisalpur Project-cum-Establishment
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(Non-Gazetted) initiated proceedings for grant of
sanction for prosecution as per Section 19 of the Act
of 1988. The office of the Superintendent of Police,
Anti Corruption Bureau, Bikaner remitted relevant
record to the Chief Engineer to consider the issue
relating to grant of sanction for prosecution of the
petitioner for the offences punishable under Sections
3(7), 13(1)(d), 13(2) of the Act of 1988 read with
Section 120-B IPC. A proposed draft sanction was also
sent to the Chief Engineer, Bisalpur Project-cum-
Establishment (Non-Gazetted).
The Chief Engineer, Bisalpur Project-cum-
Establishment (Non-Gazetted) by a notice to show cause
instructed the petitioner as to why the sanction as
sought for be not granted. An opportunity of personal
hearing too was allowed and the petitioner was
instructed to appear before the competent authority
for personal hearing on 6.7.2006. The competent
authority after hearing the petitioner and also
officers of the Anti Corruption Bureau reached at the
conclusion that no case is made out against the
petitioner and as such decided not to grant sanction
for prosecution. While doing so the entire record was
forwarded to the Chief Vigilance Commissioner as per
Government of Rajasthan, Department of Personnel
(Group-III) Circular dated 30.5.2001. On 15.9.2006 the
matter was placed before the Secretary to the
Government of Rajasthan, Department of Water
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Resources, who made a note “examine and put up”. The
Deputy Secretary, Water Resources, examined the matter
and made a note as under:-
“I have gone through the file. Both the
parties – ACB officers and the JEn. Sh.
Vishnoi – are giving contradicting facts,
therefore, in my view both of them should be
called personally to present their case
before the Secretary WR.”
The Secretary, Water Resources on 3.10.2006
made a note that “appointing authority for J.En. is
C.E. Prosecution sanction is issued by appointing
authority. This matter should not come to State
Government”. After the noting as above the matter was
again placed before the Chief Engineer, Bisalpur
Project-cum-Establishment (Non-Gazetted) who made a
note that as per Government of Rajasthan circular
dated 30.5.2001 the competent authority is required to
forward his opinion before granting or rejecting the
sanction for prosecution to the Chief Vigilance
Commissioner and, therefore, entire record of the case
was again remitted to the Secretary, Department of
Water Resources.
The Secretary, Department of Water Resources
reexamined the matter and after detailed consideration
a finding was given that the petitioner was having no
role with regard to the trap made on 8.12.2005
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regarding acceptance of illegal gratification as
alleged by Shri Satpal. The matter then was sent to
the Principal Secretary to the Government of
Rajasthan, Department of Home Affairs (Chief Vigilance
Commissioner) wherein a general note was made under
paras No.110 to 113 regarding care and cautions
required to be taken while refusing for grant of
sanction for prosecution. The note made by the
Principal Secretary, Home (CVC) on 24.2.2007 reads as
follows:-
“110.आजकल आय द न यह पक श त ह रह ह कक कततपय
व भ ग म र जयकम ररश त प पत करन क शलए म धयम व कश%त
कर ककय ह। अशभय जन स )क*तत प न करत %मय ग ह क
पथ पत बच कर बय न लन इ% प त* त क बढ न। व भग
म प %तनक %च1 चत आय यह व भ ग क शलए अपक4त ह,
ए.%).ब). %हय ग/ %ह यक क र ल अ कर %कत ह। परनत6
यद अशभय जन स )क*तत क 7र न अन षण/ अन6%ध
: न क
%म न नतर क य ज त) ह ए : अतयचधक %मय लग य
ज त ह त इ%क क म ह र जय कम उठ यग जज% भष च र
शलपत प य गय ह।
111.ऐ% कई म मल आय ह जजनम ब म पथ पत य ह त
क> ज कर अशभय जन स )क*तत नह=: द य ज न क पसत द य ज
रह ह। इ%) पक र अशभय जन स )क*तत क पसत पर तनण<य म
भ) अतयचधक व लमब ह रह ह। इ%% ए.%).ब). क पय % क
पभ कम ह ज त ह ए : अशभय जन पकHय भ) ष6 पभ व त ह त)
ह।
112.क शम<क व भ ग द र इ% पहल1 पर द तन K द य जन
अपक4त ह। ऐ% नह= ह न % त<म न पकरण ज% पकरण म भ)
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अशभय जन स )क*तत नह=: न % भष र जय कशम<य क प त% हन
शमलग ।
113.यह भ) अपक4त ह कक (i) 2 म ह म अशभय जन स )क*तत
नह=: न ल %4म अचधक र= क तक<%ममत आध र पसत6त करन
ए : यद ऐ% नह=: कर प त ह त अन6 %न तमक क य %म)4 कर।”
The Secretary, Department of Personnel also
made a note in paras No.114 to 122 and those too
relate to the procedure required to be observed while
considering cases for grant of prosecution as per
Section 19 of the Act of 1988. After getting notings
from the Department of Personnel and Department of
Home Affairs the matter was again placed before the
Special Officer-cum-Deputy Secretary to the Government
of Rajasthan, Department of Water Resources wherein a
short note was made in the terms “पकरण म नय य लय %
अन )4 कर य जन य6कN %:गत रहग ।” The above noting was
approved by the Principal Secretary to the Government
of Rajasthan, Department of Water Resources on
10.5.2007 and the matter was sent for seeking opinion
of the Deputy Legal Remembrance who too made a short
note for granting sanction for prosecution. The matter
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then was placed before the Chief Engineer, Bisalpur
Project-cum-Establishment (Non-Gazetted) who granted
sanction for prosecution on 29.5.2007 under the
proposed format forwarded by the office of the
Superintendent of Police, Anti Corruption Bureau,
Bikaner. The order of suspension then was passed on
30.5.2007.
While assailing validity of the decision of
the competent authority for granting sanction for
prosecution, the contentions of counsel for the
petitioner are that (i)the competent authority has not
applied his mind while granting sanction for
prosecution but simply acted upon the instructions
given by other officers of the State Government, (ii)
the competent authority has not considered the
explanation advanced by the petitioner regarding
entire incident of trap taken place on 8.12.2005, and
(iii)on merits too there is no case for prosecuting
the petitioner for the offences punishable under the
provisions of the Act of 1988.
Per contra, stand of the respondents is that
the competent authority granted sanction for
prosecution after considering material available on
record and on satisfying himself that the prosecution
is desirable in present set of circumstances. In reply
to the writ petition the respondents also stated that
an opportunity of personal hearing was accorded to the
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petitioner and whatever explanation given by him that
was taken into consideration by the competent
authority before passing the order dated 29.5.2007. By
submitting a rejoinder the petitioner reiterated the
facts averred in the writ petition and also placed on
record certain documents to substantiate his stand.
Heard counsel for the parties and considered
the rival contentions. The original record of entire
process relating to grant of sanction for prosecution
was made available by the respondents and that too is
examined by the Court.
As per the provisions of the Act of 1988 the
authority competent for grant of sanction for
prosecution is the authority who is competent to
remove the officer concerned from service and in the
present case that is the Chief Engineer (respondent
No.2). From the original record made available by the
respondents, it is apparent that the authority
competent at least twice by adequate application of
his mind reached at the conclusion that no case was
made out against the petitioner for grant of sanction
for prosecution. The first note was made by him on
15.9.2006 after considering all relevant documents,
the audio tape on which the investigating agency was
relying upon and also the explanation given by the
petitioner. A specific finding was given by the Chief
Engineer that as a matter of fact a plan was made with
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ulterior motives to get the petitioner trapped in a
false case through the trap party of the Anti
Corruption Bureau. The relevant portion of the finding
given by the Chief Engineer on 15.9.2006 reads as
under:-
“उN सत ज क अ ल कन % सपष ह त ह कक %मब:चधत
कतनष अशभयनत श) हन6म नश%:ह व शन ई न अपन) ओर % उN
टप पकरण % प1 < नहर= 4त म ह रह अ ध कबज क हट न क
प1ण< पय % ककय । च1:कक कबजध र= उ% सथ न % अपन कबज
हट न नह=: च हत थ इ% क रण ब तनयत)प1ण टप प टW % टप कर न क पय % ककय परनत6
टप पकरण म न त श) व शन ई क.अ. द र ररश त) र श प पत
प य गय न ह= ररश त) र श उनक प % % म7क पर बर म क>
गई।”
After giving finding as above, the matter was
placed before the Secretary to the Government of
Rajasthan, Department of Water Resources who in turn
specifically noted on 3.10.2006 that the issue is
required to be determined by the appointing authority
i.e. the Chief Engineer and the same should not come
to the State Government. However, the appointing
authority forwarded the record for its placement
before the Chief Vigilance Commissioner in view of
Government of Rajasthan notification dated 30.5.2001.
The State Government at its level again considered the
matter and on 21.2.2007 a specific finding was noted
that the petitioner never demanded alleged bribe nor
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he received the same and nothing objectionable was
recovered from him. This finding was also given by
taking into consideration various documents on which
the investigating agency was placing reliance. The
matter then was placed before the Principal Secretary
to the Government of Rajasthan, Department of Home
Affairs (Chief Vigilance Commissioner) who noted down
certain general instructions on 24.2.2007. The
instructions given by the Chief Vigilance Commissioner
are general in nature and as a matter of fact, on
basis of those instructions case of the petitioner
would have been examined by the competent authority.
Similarly, the Secretary to the Government of
Rajasthan, Department of Personnel also noted in paras
No.114 to 122 certain general instructions regarding
disposal of cases relating to grant of sanction for
prosecution. Whatever notings made by the Chief
Vigilance Commissioner, as well as by the Secretary,
Department of Personal are general in nature and those
are mere guidelines which are required to be observed
by the competent authorities and the instructions so
given nowhere considers case of the petitioner in
specific terms. It is strange that the officers of the
Department of Water Resources and the appointing
authority i.e. the Chief Engineer (respondent No.2)
instead of considering case of the petitioner as per
instructions referred in paras No.110 to 122 granted
sanction for prosecution in most mechanical manner.
There is no independent application of mind by the
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competent authority before granting such sanction
though a definite finding was given for rejecting the
request for granting sanction for prosecution once on
15.9.2006 and then on 21.2.2007. Examination of the
original record clearly establishes mechanical
exercise of powers on part of appointing authority.
This Court in Samrath Singh v. State of Rajasthan,
SBCivil Writ Petition No.8249/2007, decided on
30.9.2009, while considering the question regarding
exercise of administrative powers for placement of a
civil servant under suspension in a case of his
alleged involvement in a criminal case, held as
follows:-
“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
12mode 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.”
In the instant matter the competent authority
acted upon the general instructions given by the
Department of Home Affairs and Department of Personnel
without application of his own mind, thus, the
sanction so granted is nothing but a mechanical and
colourable exercise of powers and also against the
thrust of Section 19 of the Act of 1988 that provides
for necessity of previous sanction for prosecution in
a case of a person who is employed in connection with
the affairs of State and is not removable from his
office save by or with the sanction of that
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Government. The competent authority for granting such
sanction is the authority which would have been
competent to remove the public servant from his office
at the time the offence alleged to have been
committed. As said above, in the instant matter though
the sanction is granted by the competent authority but
no independent application of mind by him was made
before granting such sanction.
Accordingly, this petition for writ deserves
acceptance and, therefore, the same is allowed. The
sanction granted for prosecuting the petitioner by the
Chief Engineer, Bisalpur Project-cum-Establishment
(Non-Gazetted), Department of Water Resources,
Government of Rajasthan, Jaipur on 29.5.2007 is
declared illegal and, therefore, the same is quashed.
No order to costs.
( GOVIND MATHUR ),J.
kkm/ps.