CASE NO.: Appeal (crl.) 478 of 2004 PETITIONER: State(Anti Corruption Branch)Delhi & Anr. RESPONDENT: Dr. R.C. Anand & Anr. DATE OF JUDGMENT: 15/04/2004 BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT JUDGMENT:
J U D G M E N T
(Arising out of SLP (Crl.) No.3964/2003)
ARIJIT PASAYAT, J.
Leave granted.
By the impugned judgment a Division Bench of the Delhi
High Court held that the sanction granted by the Governing
Body of All India Institute of Medical Sciences (in short
the ‘AIIMS’) to proceed against respondent no.1-employee
was legally not sustainable. Accordingly the proceedings
pursuant to the said sanction were quashed. The High Court
was of the view that when the President who is the Chairman
of the Governing Body had suggested that sanction was not to
be granted, it was not open to the Governing Body to pass an
order directing grant of sanction. The President had
directed the matter to be placed before the Governing Body,
it was incumbent upon the latter to examine that question
alone and if a contrary view was to be taken, that was
subject to passing of a reasoned order showing application
of mind. Since that was not done, the order of the Governing
Body was vulnerable and deserved to be nullified. Further
the order of suspension, which was passed and was continued,
was vacated on the ground that same was continuing for a
long time without a review of the necessity for continuance
thereof.
Since the pivotal question is whether the Governing
Body’s decision suffered from any infirmity, a brief
reference to the factual background would suffice.
On 8.5.1998 a complaint was registered against
respondent no. 1 on the basis of allegations made by one
Sagir Ahmad Khan who was supplying materials to AIIMS. It
was alleged in the complaint that the respondent no. 1 had
demanded illegal gratification for reviewing an order of
cancellation and for placing orders to make further supplies
by renewal of contract. The complainant produced cassettes
of tapes containing recorded conversation between himself
and the respondent no. 1. The transcript of the same was
prepared and placed on record. On 20.7.1998 the complainant
approached the Anti Corruption Branch (for short ‘ACB’)
after fixing the time and the amount of money with
respondent No. 1. The complainant produced currency notes of
Rs.10,000/- before an officer of the ACB. The investigating
officer prepared several memos, recorded the number of notes
and applied Phenolphthalein powder on the notes and told the
complainant and the panch witnesses about the procedure to
be adopted. A remote tape recording system was used to
collect additional evidence for laying the trap. On the
basis of the conversation recorded and after the acceptance
of money by the respondent No. 1, recovery was made and
positive tests indicating presence of Phenolphthalein in the
colourless solution of sodium carbonate was noted. A
positive report from the Forensic Science Laboratory was
also received regarding hand wash and pant pocket wash.
Though a similar procedure was intended for another person
same could not be materialised as the situation at AIIMS
turned violent.
By an order dated 29.7.1998 respondent no. 1 was placed
under suspension by the AIIMS with effect from 20.7.1998.
The appellant No. 1 requested AIIMS for a sanction for
prosecuting respondent No.1. AIIMS sought certain
clarification from the Ministry of Law and Justice and the
Central Vigilance Commission (in short the ‘CVC’). They did
not recommend grant of sanction to prosecute. The President
of AIIMS passed an order on 22.3.2000 revoking the order of
suspension, and declining grant of sanction to prosecute
subject to ratification by the Governing Body.
On 3.4.2000 the Governing Body passed an order
superseding the order of the President dated 22.3.2000 and
the respondent No. 1 was consequently placed under
suspension.
On 17.4.2000 the respondent no. 1 filed a Criminal Writ
Petition under Article 226 of the Constitution, 1950 (in
short the ‘Constitution’) read with Section 482 of the Code
of Criminal Procedure, 1973 (in short the ‘Code’) for
quashing the order dated 3.4.2000 and seeking other reliefs
also. The stand of respondent no. 1 was that opinion of
Ministry of Law and Justice is binding on the Governing body
of AIIMS. Once the President of AIIMS has exercised the
power it was not open to be re-considered by the Governing
Body and there was non-application of mind on the part of
the Governing Body while granting sanction. Since the tape
recorded conversation or the transcript of the report of the
ACB was not produced before the Governing Body continuance
of suspension and grant of sanction was bad. The Delhi
Police had no jurisdiction to register a case against the
writ petitioner as he was a Central Government employee and
the sanction ought to have been routed through Central
Bureau of Investigation (in short the ‘CBI’) as opined by
the CVC and the Ministry of Law and Justice.
The present appellants filed reply by counter
affidavit, taking the stand that the sanction had been given
after due consideration and there was sufficient evidence
justifying the sanction. Since charge sheet had also been
filed on 28.4.2000 in the Court of the Special Judge Tis
Hazari, Delhi and cognizance had been taken, the writ
petitioner was not entitled to any relief. It was also
further pointed out that ACB has jurisdiction in view of the
notification issued by the Ministry of Home Department,
Govt. of NCT. The High Court allowed the Writ Application
primarily on the ground that the Governing Body cannot
supersede the decision of the President of AIIMS and there
was no material for granting sanction since records were not
produced before the Governing Body for the purpose of
assessing whether it was a fit case for granting sanction.
In support of the appeal, learned counsel for the
appellant submitted that the High Court’s approach is
clearly erroneous. Section 19 of the Prevention of
Corruption Act, 1988 (in short ‘the Act’) refers to the
authorities competent to remove the concerned officers. The
present case is covered by clause (c) of sub-section (1) of
Section 19. By notification dated 25th February, 1999
issued under sub-section (1) of Section 29 of All India
Institute of Medical Sciences Act, 1956 (in short the
‘Act’), Regulations were brought into operation and the
Regulations are called “All India Institute of Medical
Sciences Regulations, 1999 (in short the ‘Regulations’). In
Schedule II, relating to the Appointing Disciplinary and
Appellate Authorities for various posts in the Institute, it
has been clearly stipulated that for Group ‘A’ posts other
than the “Director”, the Appointing Authority is the
Governing Body, and the Disciplinary Authority in respect of
various penalties are the Governing Body except in respect
of penalties (i) to (iv) for which President alone is the
concerned Authority. Above being the position, so far as the
respondent No. 1 is concerned, it is the Governing Body
alone which had the authority to decide on the question of
sanction. The High Court proceeded as if the decision was
that of the President and it was to be ratified by the
Governing Body. There was no question of any ratification
because the plenary powers vested with the Governing Body
alone and the President has no role to play. With reference
to the Central Civil Services Classification Control and
Appeal Rules (in short the `CCA Rules’) relating to
penalties and disciplinary authorities, particularly Part V
it was pointed out that the major penalty was to be imposed
on respondent no. 1. Therefore, it was the Governing Body
alone which had the jurisdiction to accord sanction. There
was no question of recording any reasons for departing from
the President’s view, as that is not a requirement in law.
The concept of the ratification has been wrongly introduced
by the High Court.
In response Mr. K. Ramamoorty, learned senior counsel
submitted that though the Governing Body had the
jurisdiction to accord sanction, the view of the President
should not have been brushed aside lightly and as noted by
this Court in Mansukhlal Vithaldas Chauhan v. State of
Gujarat [1997 (7) SCC 622], the grant of sanction cannot be
an empty formality, and an application of mind was
imperative.
We find from the judgment of the High Court that it
proceeded on the premises that the sanctioning authority is
to apply its own independent mind, and it was applied by the
President and he sought for ratification by Governing Body.
The approach is clearly erroneous. The sanctioning body was
not the President and it was the Governing Body. This
position is fairly accepted by the learned counsel for the
respondent No. 1 and cannot be disputed in the teeth of
specific provisions contained in Schedule II to the
statutory Regulations. But according to him since the
President had expressed his views, for taking different
view, reasons should have been indicated. Such pleas clearly
are without any substance. When the Authority competent to
accord sanction is the Governing body under the statutory
Regulations and that body, as in this case takes a decision
there was no necessity for recording reasons to differ from
the view expressed by the President who had legally no role
to play. The allocation of powers distinctly made by the
statutory Regulations earmarking their own fields, subjects
and topics cannot be legitimately ignored, on any
assumptions or baseless presumptions. As long as the
President had no individual role to play in matters
exclusively earmarked and allocated to the Governing Body
and the decision of the Governing Body as that of any body
has to be collective one, neither the President could
dictate what and how the Governing Body has to exercise its
powers nor the Governing Body is obligated in any manner to
deal with and give reasons to differ from the view expressed
by the President, which, as noticed above he could not have
in the light of the statutory Regulations themselves. There
is no justification in law or any principle of construction
to import any such restriction on the independent exercise
of power by the earmarked Authority on its own under the
Regulations. The President cannot impede or foreclose the
liberty of the Governing Body by expressing his view or by
passing even a provisional order subject to ratification,
wherein under the statutory Regulations, he had none, at
all.
Ratification is noun of the verb “ratify”. It means
the act of ratifying, confirmation, and sanction. The
expression “ratify” means to approve and accept formally.
It means to conform, by expressing consent, approval or
formal sanction. “Approve” means to have or express a
favourable opinion of, to accept as satisfactory. In the
instant case, there was no question of any ratification
involved as wrongly assumed by the High Court.
The counter affidavit of the present appellant before
the High Court clearly indicated that relevant aspects were
noted by the Governing Body before arriving at its decision.
High Court seems to have proceeded on the basis that since
the basic material, or evidence i.e. alleged tape
conversation, was not looked into by the Governing Body to
form its own independent opinion to depart from the view of
President, the sanction was contrary to law. In Kalpnath
Rai v. State (through CBI) (1997 (8) SCC 732), it was
clearly observed by this Court that the sanctioning
authority is not required to wait for the report of the
experts. The sanctioning authority has only to see whether
the facts disclosed in the complaint prima facie disclose
commission of an offence or not. The actual production of
the tapes etc., are matters for proof during trial and not
necessarily to be undertaken at this stage. It is true as
contended by learned counsel for respondent no.1, grant of
sanction is not empty formality.
The validity of the sanction would, therefore, depend
upon the material placed before the sanctioning authority
and the fact that all the relevant facts, material and
evidence including the transcript of the tape record have
been considered by the sanctioning authority. Consideration
implies application of mind. The order of sanction must ex
facie disclose that the sanctioning authority had considered
the evidence and other material placed before it. This fact
can also be established by extrinsic evidence by placing the
relevant files before the Court to show that all relevant
facts were considered by the sanctioning authority. [See
Jaswant Singh v. State of Punjab (AIR 1958 SC 124) and State
of Bihar v. P.P. Sharma (1992 Supp(1) SCC 222)].
The position was reiterated in Manusukhlal’s case
(supra). The order dated 3.4.2000 passed by the Governing
Body cannot be said to be deficient in any way in meeting
the requirements of law. No other point was urged on behalf
of the respondent no.1 to justify the High Court’s order.
In the aforesaid background the High Court’s judgment
is indefensible and is quashed. The matter pending before
the Special Judge shall now proceed in accordance with law.
We make it clear that we have not expressed any opinion on
the merits of the case, which relates to the actual proof of
the charge before the competent Court during trial.
The appeal is allowed to the extent mentioned above.