State of Haryana Vs. N. C. Tandon
 INSC 117 (14 April 1977)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1977 AIR 1793 1977 SCR (3) 593 1977
SCC (3) 56
Prevention of Corruption Act, Section 6(1)(2)--Sanction
for prosecution--Validity of--Authority empowered to sanction--Delegation of
power to sanction.
Central Civil Services (Classification,
Control and appeal) Rules 1965-Rule 10---Power delegated to the Chief Engineer
of Command--Whether can be exercised by the zonal Chief Engineer.
The respondent was convicted for an offence
under section 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act,
1947 and section 161 of the I.P.C. The conviction was set aside by the High
Court on the sole ground that the sanction for his prosecution was not accorded
by a competent authority. The respondent was a Civilian in the Defence Services
in the rank of temporary Superintendent, Building and roads Grade I. The
prosecution case was that he had accepted illegal gratification of Rs. 300/from
one Brij Bhushan Lal, Contractor, as a motive or reward for doing an official
act. The sanction for the prosecution of the respondent was accorded by Brig.
Naresh Prasad Chief Engineer, North Western Zone, Chandigarh.
The High Court held that Brig. Naresh Prasad
had no authority under the relevant rules either plenary or delegated to
appoint a person to a post in class III service at the time when he passed the
order for sanction of prosecution. That such a power was delegated to him
subsequently. The learned Judge held that the authority was the Chief Engineer,
Western Command and not the Zonal Chief Engineer.
Section 6(1) of the Prevention of Corruption
Act provides that no Court shall take cognizance of the offence in question
alleged to have been committed by a public servant except with the previous
sanction of the officer enumerated in clauses (a), (b) and (c) of that section.
Sub-section 2 of section 6 further provides
that where for any reason whatsoever any doubt arises whether the previous
sanction as required under sub-section (1) should be given by the Central or
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
The appellant contended that by an order
communicated by letter dated 27-4-1956 (subsequently reiterated in letter dr.
23-1-1963) made under rule 10 the Engineer-in-Chief had empowered all Chief
Engineers in Military Engg. Service to make first appointments and that the
operation of the said order was preserved by the saving clause in rule 34(1) of
the 1965 Rules. The appellant further contended that the fetter placed on the
power given to the Chief Engineers in the matter of removal or dismissal of
Class III servants operates only in case of persons appointed by the Engineerin-Chief
and not where he was appointed by the Chief Engineer of a Command. In the
present case, the respondent was appointed not by Engineer-in-Chief but by the
Chief Engineer, Western Command.
The respondent contended that the order dated
27-4-1956 expressly delegates the power of making first appointments only to
the Chief Engineers of the three commands then in existence and of the 'other
departments specified therein.
In 1956, when the order was made there were
no zonal Chief Enginers, which 594 came into existence in December, 1962 as a
class apart working under the overall administrative control of the Chief
Engineers of Commands. A general delegation of the power in favour of the Chief
Engineers of Commands as a class cannot by any reckoning amount to a delegation
in favour of the Zonal Engineers also working under the control of the Chief
Engineers of Commands. Secondly, the letter dated 23-1-1963 was not issued
under the signature of the Engineer-in-Chief nor can it be construed as a
delegation of the power of appointment under rule 10. Alternatively, the power
delegated by the Engineer-in-Chief to the Chief Engineers was a qualified one
inasmuch as no power was given to them to dismiss or remove a Government
servant of Class III service.
Dismissing the appeal,
HELD: (1 ) Unless a different intention appears
the power to appoint to an office includes the power to dismiss or remove from
that office as provided in s. 16 of General Clauses Act. The post which the
respondent was holding is a post of Class III service and the members of the
service are governed by Central CiVil Services (Classification, Control and
Appeal) Rules, 1965. 1965 Rules repeal the earlier 1952 Rules and any
notification or orders issued there under in so far as they were inconsistent
with the 1965 rules. Under rule 10, appointments to Class III and Class IV
Civilian Service are to be made by the officers empowered by the
Engineer-in-Chief. Thus the appointing authority is competent to delegate the
power of appointment. [596 B, C, G-H, 597D] (2) A perusal of the letter dated
27-4-1956 communicating the order of the Engineer-in-Chief shows that it is
addressed to the Chief Engineers, Southern Command, Eastern Command and Western
Command. On the date of this letter there were only 3 Commands; two Commands
were created subsequently. There were no Zones or Zonal Chief Engineers at that
time. Therefore, the Chief Engineers to whom the powers have been delegated
under this letter could only be the Chief Engineers of the Commands as a class
and it would cover Chief Engineers of the Commands which were subsequently
created. But it would not include the Chief Engineers of Zone. Zonal Chief
Engineers have, to work under the Command and technical control of Chief
Engineers of Commands. Zonal Chief Engineers are a class apart from the Chief Engineers
of Commands. They are under the administrative control of the Chief Engineers
of Command. Thus the delegation is to the Chief Engineers of Commands and not
to the Zonal Chief Engineers. [600 A-B, F-H 601 A-B] (3) The letter dated
23-1-1963 is not signed by the Engineer-in-Chief. It appears to have been
signed by some other person for Engineer-in-Chief. Nor does it purport to have
been issued pursuant to any separately passed order of the Engineer-in-Chief
expressly delegating the powers of appointment to posts in Class III service
under Rule 10.
There is nothing in the letter to show that
the delegation was to the Zonal Chief Engineers. On the contrary, para 8 of the
letter talks of the Command Chief Engineers. The way in which the Engineer-in-Chief
has construed the letter is not relevant. [601 G-H, 602AB] (4) Brig. Naresh
Prasad, Zonal Chief Engineer was not competent to remove the respondent and as
such, the order sanctioning the prosecution of the respondent was bad in law.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 126 of 1977.
Appeal by Special Leave from the Judgment and
Order dated the 12-1-1976 of the Punjab and Haryana High Court in Crl. A. No.
583/ 72 R.N. Sachthey and H.S. Marwah for the Appellant.
595 Hardyal Hardy and S.K. Sabbarwal for
The Judgment of the Court was delivered by
SARKARIA, J.--This appeal by the State is directed against a judgment of the
Punjab and Haryana High Court setting aside the conviction of the respondent
herein in respect of offences under ss.5(2) read with s.5(1)(d) of the
Prevention of Corruption Act, 1947 and 161, Penal Code on the sole ground that
the sanction for his prosecution had not been accorded by a competent
N.C. Tandon, respondent was a civilian in the
defence service in the rank of temporary Superintendent Building and Roads,
Grade I. It was alleged that he had accepted illegal gratification of Rs. 300/
from one Brij Bhushan Lal, Contractor on 11-3-1971 as a motive or reward for
doing an official act. The Contractor was at the material time doing the
construction of main sewers in Chandigarh Cantonment near Panchkula. The
respondent's duty was to supervise that construction. The respondent, it is
alleged, demanded the bribe as a reward for recording correct measurements.
Brij Bhushan Lal did not, in fact, want to
pay the gratification. He therefore informed the Special Police Establishment
authorities who on 10-11-1971 trapped the accused and allegedly recovered the
tainted money from his possession.
The sanction for the prosecution of the
accused was accorded by Brig. Naresh Prasad, Chief Engineer, North Western
Zone, and Chandigarh on 24-6-1971. The Special Judge, Ambala tried and
convicted the accused on the aforesaid charges and sentenced him to one year's
rigorous imprisonment and a fine of Rs. 1,000/-.
Tandon appealed to the High Court. The appeal
was heard by a learned Single Judge who held that on 24-6-1971, when Brig.
Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction
for prosecution, he had under the relevant Rules, no plenary or delegated power
to appoint to a post in Class III Service and that such a power was delegated
to Chief Engineers of Zones for the first time on 14-1-1972. The learned Judge
noted that the authority competent to appoint the accused-respondent on
24-6-71, was the Chief Engineer Western Command, Simla, and not the Zonal Chief
Engineer. He therefore concluded that the sanction for prosecution of the
accused had not been given by the competent authority. On this short ground,
the High Court allowed Tandon's appeal, without going into the merits of the
At the outset, we may notice the general
principles which govern the sanction for prosecution in such cases.
Sub-section(1) of s. 6 of the Prevention of
Corruption Act says:
"No court shall take cognizance of an
offence punishable under s. 161 (or sec. 164) or section 165 of the Indian
Penal Code, or under sub-section (2) (or sub-section (3A) of section 5 of this
Act, alleged to have been committed by a public servant, except with the
previous sanction of the authorities enumerated in clauses (a) (b) and (c) of
that section." 596 Sub-section (2) of the section provides:
"Where for any reason whatsoever any
doubt arises whether the previous sanction as required under sub-section (1)
should be given by the Central or 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 added) Thus the
test as indicated in this sub-section, for judging the competency of the
authority giving the sanction is, whether at the time of the alleged commission
of the offence, it had the power to remove the public servant from his office.
Another principle to be borne in mind is,
that unless a different intention appears, the power to appoint to an office
includes the power to dismiss or remove from that office (vide s. 16, General
We may further clear the ground and have a
short, swift look at the relevant statutory rules. It is common ground that the
post of Superintendent, Grade I (B & R) which the accused was temporarily
holding, is a post of Class Iii Services, and the members of this Service are
governed by Central Civil Services (Classification, Control and Appeal) Rules,
1965 (for short, hereinafter called 1965 Rules). The 1965 Rules were
promulgated on November 20, 1965. Rule 34 of the 1965 Rules repealed the
earlier Rules of 1952 and any notification or orders issued there under
"in so far as they are inconsistent with (the 1965 Rules)".
One of the provisions of the 1952 Rules,
which is relevant for our purpose, and which has substantially been reproduced
in the 1965 Rules, is Rule 10. It reads as under:
"10. All first appointments to Class I
and Class II Services shall be made by the Government. All first appointments
to Class III and Class IV services shall be made by the authorities specified
in column 3 of Schedule IV in respect of posts mentioned against them or by
officers empowered in this behalf by such authorities." (emphasis added).
schedule IV reffered to in the rule ran as
"Schedule IV (Vide Rules, 10, 11, 12, 14
SI. Posts Appointing AuthAuthority em No.
orities in respect powered to im of Class III and pose penalties Class IV posts
(i),(ii),(iv) (vide rule 10) and (v) of rule 13 for Class II officers (Vide r.
14) 1 to 7 . . . . . . . . .
8. Posts in lower for E-in-C C. Es. of the
mation under E-in-C's Commands.
Branch X X X." 597 The former Rule 10 as
recast into Rule 9 of the 1965 Rules reads as below:
"9(1) All appointments to Central Civil
Services (other than General Civil Service) Class II, Class. III and Class IV
shall be made by the authorities specified in this behalf in the Schedule.
Provided that in respect of Class III and
Class IV Civilian Services, or civilian posts in the Defence Services
appointments may be made by officers powered in this behalf by the aforesaid
(emphasis added) (2) All appointments to the
Central Civil Posts, Class II, Class III and Class IV included in the General
Central Civil Service shall be made by the authorities specified in this behalf
by a general or special order made, by the authorities specified in this behalf
in the Schedule." It may be noted that both under the old Rule 10 and the
Proviso to new Rule 9(1), the appointing authority is competent to delegate the
power of appointment in respect of Class III Service.
Rule 13 enumerated these penalties which
could be imposed upon the servants subject to the Rules:
(ii) Withholding of increments or promotion.
(iii) Reduction to a lower post or time-scale
or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part
of any pecuniary loss caused to Government by negligence or breach of orders
(vi) Removal from the civil service of the
Government, which does not disqualify from future employment.
(Vii) Dismissal from the civil service of the
Government which ordinarily disqualifies from future employment.
(viii) Compulsory retirement .... " Rule
14 of 1952 Rules specified who-could impose these penalties. It provided :"14(1)
Any of the penalties specified in rule 13 may be imposed on any person subject
to these rules by the Government or by the appointing authority.
598 (2) Without prejudice to the provisions
of sub-rule (1), any of the penalties specified in clauses (i), (ii), (iv) or
(v) of rule 13 may be imposed.
(b) in the case of members of Class III and
IV services by the authority empowered in this behalf by the appointing
Explanation.--In this rule the expression
"appointing authority" includes an officer empowered under Rule 10 to
make first appointments to Class III and Class IV Services." Rules 11 and
12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material
aspects, excepting two, namely, (1) Suspension has been taken out of the category
of penalties, and (2) the Explanation appended to Rule 14 has been omitted
because in the 1965 Rules, the subject matter of that Explanation has been made
a part of the definition of "Appointing Authority" given in Rule
The main submission of Mr. Sachthey learned
Counsel for the appellant is that by an order communicated per letter, dated
27-4-1956, made under Rule 10 of the 1956 Rules, (.subsequently reiterated in
letter dated 23-1-1963) the Engineer-in-Chief had empowered all Chief Engineers
in Military Engineering Service to make first appointments, inter alia, to
posts in Class III Service, and that the operation of the aforesaid order was
preserved and continued by the saving clause in Rule 34(1) of the 1965 Rules.
On these premises, it is maintained, that the
High Court was wrong in holding that the Chief Engineer of the North Western
Zone, Chandigarh. was not the 'appointing authority competent to remove the
accused from service.
As against this, Mr. Hardyal Hardy, learned
Counsel for the respondent submits that the order, dated 27-4-56, expressly
delegates the power of making first appointments.
only to the Chief Engineers of the three
Commands, then in existence, and to the other authorities specified therein.
It is pointed out that in 1956 when this
order was made, there were no Zonal Chief Engineers which came into existence
on reorganization in December 1962, as a class apart, working under the orerail
administrative control of the Chief Engineers of Commands. The point pressed
into arguments is that a general delegation of the power in favour of Chief
Engineers of Commands, as a class, cannot, by any reckoning, amount to a
delegation in favour of the Zonal Chief Engineers, also, working under the
control of the Chief Engineers of Commands.
Mr. Hardy has further submitted that the
letter dated 23-1-1963 has not been issued under the signature of the
Engineer-in-Chief, nor can it, by any stretch of language, be construed as a
delegation of the power of appointment under Rule 10. In the alternative, it is
submitted the power delegated by the Engineer-in-Chief to the Chief Engineers
was a qualified one inasmuch as no power was given to them to dismiss 599 or
remove a Government servant of Class III Service. It is maintained that by the
aforesaid letter, the Chief Engineers were empowered to impose only minor
penalties other than that of dismissal and removal. It is urged, in view of
this restricted delegation in the matter of inflicting.
penalties, it cannot be said that on the principle
underlying Sec. 16 of the General Clauses Act power of appointment will
automatically include the power to remove the person appointed from his office.
In reply, Mr. Sachthey has pointed out that
the fetter placed on the power given to the Chief Engineers by the letter dated
27-4-56, in the matter of removal or dismissal of Class III servants, operates
only in case of persons appointed by the Engineer-in-Chief, and not where he
was appointed by the Chief Engineer of a Command. It is pointed out that in the
instant case, the accused was appointed not by E-in-C but by the Chief
Engineer, Western Command, Simla.
The main question that falls to be considered
is whether the E-in-C's order communicated through letter, dated 27-4-1956, can
be construed as a valid delegation of the power of appointment tO posts in
Class III Service to Zonal Chief Engineers, which came into existence on reorganization
in December, 1962 ? The material part of this letter reads as under:
"TO The Chief Engineer, Southern Command,
Poona Eastern Command, Lucknow Western Command, Simla X X X Subject: Civilians
in DefenCe Services (Classification, Control and Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in
Defence Services (Classification, Control and Appeal) Rules, 1962, I hereby
authorise the authorities mentioned hereunder to make first appointments to
Class III and IV Services to the extent indicated below:
Authority Posts (a) Chief Engineers . . . . .
All posts with the excepetion of per(b) CWO, NDES . . . . . manent appointments
to the following categories:
(i) Superintendent, B/R Grade I.
* * *
2. Under Rule 14(b) of CDS (CC&A) Rules,
1952 the undermentioned authorities are empowered to impose penalties referred
to in Rule 13 ibid, to the extent indicated below :(a) Chief Engineers and
Penalties at (i), (ii), (iv) and (v) of Rule 13 on Class III employees in
respect of whom E-in-C is the appointing authority," 600 A perusal of this
letter will show that it is (among others) addressed to the Chief Engineers,
Southern Command, Eastern Command, Lucknow, and Western Command, Simla. On the
date of this letter there were only three Commands; two commands were created
subsequently. There were no Zones or Zonal Chief Engineers at that time.
Therefore, the Chief Engineers to whom the powers have been delegated under
this letter could only be the Chief Engineers of the Commands, as a class.
Since the delegation has been to the Chief Engineers of the Commands, as a
class, it will cover the Chief Engineers of these Commands, also, which were
subsequently created. But, the question is will it take in Chief Engineer of
Zones and amount to a delegation of power in their favour, too, on their
creation six years later in 1962 ? Answer to this question will depend on
whether the Chief Engineers of Zones belong to the same class holding the same
rank and exercising same administrative powers and control as the Chief
Engineers of Commands ? At the final hearing, we had asked Shri Sachthey, to
make available to us the official order, regulations and like material throwing
light on this aspect of the problem-From the material furnished by him, it
appears that the decision to reorganize the Military Engineering Service was
taken by the Government in December, 1962. Pursuant to that decision, the Zones
were created and Engineering Services in each Zone were placed under the charge
of a Chief Engineer, of that Zone. Chandigarh area was also made North-Western
Zone, for this purpose.
This reorganisation took effect from January
The main object of creation of Zonal Chief
Engineers as stated in C-in-C's letter No. 66161/II/E2A, dated 13-121962, was
to "effect maximum possible decentralisation and thereby achieve speed and
efficiency in the planning and execution of work services." As is apparent
from the letter dated 22/26-12-1962 from the Engineer-in-Chief, the Zonal Chief
Engineers have to work "under the command and technical control of CEs Commands
for the planning and execution of works." E-in-C's letter, No.
6161/II/E2A, dated December 13, 1962 addressed to the Chief Engineers, Commands
and others, also, makes it clear that under the re-organized set up, "C.E.
located at each Command H.Q. will be responsible for all engineer matters in
the Command, administration and training of engineer troops and for the
coordination of works. Under the Command and technical control of this Chief
Engineer there will be number of CEs/CSWE...on zonal basis." These two
letters unmistakably show that the zonal Chief Engineers are a class apart from
the Chief Engineers of Commands. Although extensive financial powers have been
delegated to the Zonal Chief Engineers, which are almost the same as that of
the Chief Engineers of the Commands, the fact remains that they are under the
overall administrative control of the Chief Engineer of the Commands concerned.
601 In this view of the matter the scope of
the delegation of the powers made under the letter dated 27-4-1956, must be
construed as a delegation only to the Chief Engineers of Commands, as
distinguished from the Chief Engineers of Zones which were then not even in
This takes us to the letter dated January 23,
1963 from the Army H.Qrs., E-in-C's Branch. In the first place, this letter is
not signed by the E-in-C. It appears to have been signed by some other person
"for E-in-Chief"; secondly it does not purport to have been issued
pursuant to any separately passed order of the E-in-C expressly delegating
under Rule 10, the powers of appointment to posts in Class III Service. The
opening sentence of this letter, no doubt, refers to HQ Letters No.
66161/II-E2A, dated 8 Dec. 1962, para 4 and even No. of 22 Dec. 1962, which we
have already noticed. There is nothing in them which delegates the powers of
appointment to any posts to the Zonal Chief Engineers. On the contrary, para 8
of this letter says "All Class III and IV personnel will be provided by
the Command CE and will continue to be borne on the strength of that Command
for purposes of (a) All documentation (b) Temporary promotion (c) Permanency
(d) Retrenchment and reversion (e) Pension-progress by the Unit but overall
control by the Command CE." (Emphasis added) Mr. Sachthey has placed great
stress on para 12 of this letter which says:
"The normal powers of Chief Engineer in
all matters relating to appointments, punishments etc. vest with each Zonal
Chief Engineer in accordance with this HQ letter No. 27304/ELD(2) dated 27th
April 1956. In exercising these powers it will be necessary to consult CE Command
prior to recruitment and replacements." The argument advanced on behalf of
the appellant is that the very authority that had issued the letter dated April
27, 1956 has construed it as delegating the powers of appointment, punishment
etc. to the Zonal CEs. also, and therefore, the Court should accept that
We are unable to accept this argument. We
have already pointed out that this letter, dated 23-1-63, has not been issued
under the signature of the same authority from which the order, dated 27-4-56,
had emanated. It does not ex facie show that any order, apart from that dated
27-4-56, had been passed by the Engineer-in-Chief under Rule 10. For reasons
given earlier, we have no hesitation in holding that the assumption made in Paragraph
12 of this letter extracted above, to the effect that the Zonal Chief Engineers
were vested with powers of appointments, punishments etc. in accordance with
H.Q. letter dated 27 April 1956 was clearly incorrect, Perhaps, that was why on
14-1-1972, the necessity of making a proper order delegating such powers to
Zonal Chief Engineers and others, under Rule 9 was felt by the
602 No other order of the Engineer-in-Chief
made prior to 24-6-1971 under Rule 10 of 1952 Rules or under Rule 9(1) of the
1965 Rules delegating the power of appointment to posts in Class III Services,
has been placed before us. We have therefore no alternative but to hold that on
24-6-1971, Brig. Naresh Prasad, Zonal Chief Engineer, North Western Zone,
Chandigarh, was not competent to remove the accused-respondent, Tandon, from
the post of Superintendent, B&R Grade I, Chandigarh and as such, the order
sanctioning the prosecution of the respondent was bad in law.
In view of this finding, we do not think it
necessary to examine the alternative contention advanced by Shri Hardy.
The case fails because there is no valid
sanction, as required by the law. Obviously, this does not preclude a fresh
prosecution for the same offence--but it is a matter for the State, in the
circumstances of the case, to consider whether prosecution should be launched
against the respondent or not. We make this observation only to remove a
In the result, the appeal fails and is
P.H.P. Appeal dismissed.