State Through
Anti-Corruption Bureau, Government of Maharash Vs. Krishanch [1996] INSC 616 (25 April 1996)
Jeevan
Reddy, B.P. (J) Jeevan Reddy, B.P. (J) Paripoornan, K.S.(J) B.P.Jeevan Reddy,J.
CITATION:
1996 AIR 1910 1996 SCC (4) 472 JT 1996 (4) 495 1996 SCALE (4)57
ACT:
HEAD NOTE:
Leave
granted.
Heard
counsel for the parties.
Respondent,
K.K.Jagtiani, was an Assistant Engineer in the service of the Municipal
Corporation, Greater Bombay. On the basis of a complaint received, a trap was
laid. The respondent was caught accepting the money. The Municipal Commissioner
granted sanction for prosecuting the respondent and another employee under
Section 5 of the Prevention of Corruption Act, 1947 [the Act] and Sections 161
and 165 of the Indian Penal Code on January 4, 1988. On that date, the
respondent was in receipt of basic minimum salary which was less than Rupees
twelve hundred per month. In due course, a charge-sheet was filed against the
respondent in the court of Special Judge, Greater Bombay under Sections 5(1)(d)
and 5(2) of the Act and Sections 161 and 165 of the Indian Penal Code. The
learned Special Judge took cognizance of the offences and framed charges. The
respondent raised a preliminary objection that the sanction granted by the
Municipal Commissioner without obtaining the previous approval of the Standing
Committee of the Corporation is not valid and competent in law inasmuch as the
Municipal Commissioner by himself was not competent to remove him. The learned
Special Judge over-ruled the objection, which writ challenged by the respondent
by way of a writ petition in the Bombay High Court. A learned Single Judge has
upheld the objection and allowed the writ petition.
Section
6(1)(c) of the Act,insofar as it is relevant, reads:
"6(1).
No Court shall take cognizance of an offence
punishable under Section 161 of the Indian Penal Code or under subsection (2)
of Section 5 of this Act, alleged to have been committed by a public servant,
except with the previous sanction- (c) In the case of any other person of the
authority competent to remove him from his office." Section 83 of the
Bombay Municipal Corporation Act prescribes the authorities competent to impose
various punishments upon its employees. It reads:
"83(1)
Every municipal officer and servant may be fined, reduced, suspended or
dismissed for any breach of departmental rules or discipline or for
carelessness, unfitness, neglect of duty or other misconduct, by the authority
by whom such officer or servant is appointed;
(2)
Provided that –
(a) no
officer appointed to a post, 'The minimum monthly salary exclusive of
allowances of which is rupees one thousand two hundred or more' shall be
dismissed by the Commissioner, without the previous approval of the standing
committee or in the case of an officer appointed for the purposes of clause (q)
of section 61, of the Education Committee;
(b)
any officer appointed by the corporation under section 55,56A,74,75, 76B,77,78A
or 78C may be suspended by the standing committee and any officer appointed by
the corporation under section 76A may be suspended by the Education Committee,
pending in each case an order of the corporation and every such suspension and
the reasons there for shall be forthwith reported to the Corporation;
(c)
any officer appointed by the corporation otherwise than under section
55,56A,74,75,76A,77,78A or 78C may, for any breach of departmental rules or
discipline, or for carelessness, unfitness, neglect of duty or other misconduct
be fined, reduced or surrendered by the Commissioner, or may, with the previous
approval of the standing committee or in the case of an officer appointed for
the purposes of clause (q) of section 61 of the Education Committee, be
dismissed by the Commissioner;
(d)
any officer or servant immediately subordinate to the Municipal Chief Auditor
and drawing a salary not exceeding rupees two hundred and fifty per month
exclusive of allowances may, subject to such conditions and limitations, if
any, as the standing committee may deem fit so prescribe, and subject to a right
of appeal to the standing committee, be fined, reduced or suspended for any
breach of departmental rules or discipline or for carelessness, unfitness,
neglect of duty or other misconduct by the Municipal Chief Auditor." An
analysis of the section - a shining example of bad draftsmanship* - yields the
following propositions: (i) A municipal officer or servant may be fined,
reduced, suspended or dismissed by the authority by whom
------------------------------------------------------------ *There was a good
amount of discussion before us regarding the meaning and ambit of clause (a)
and clause (c) of the proviso [sub-section (2)]. It was also pointed out that
to remove the difficulty - and ambiguity - in understanding these clauses,
clause (a) has been amended later in the years 1989 and in 1990.
such
officer or servant is appointed [Sub-section (1)].
(2) An
officer holding a post, the minimum monthly salary exclusive of allowances is
Rs.1200/- per month or more, can be dismissed by the Commissioner with the previous
approval of the Standing Committee. If he is an officer appointed for the
purposes of Section 61(q), he can be a dismissed by the Commissioner with the
previous approval of the Education Committee [Clause (a) of the proviso which
is styled as sub- section (2)].(3) An officer appointed by the Corporation
under Sections 55,56A,74,75,76B,77,78A or 78C can be suspended by the Standing
Committee pending orders of the Corporation. ["Pending in each case an
order of the Corporation"]. If, however, he is an officer appointed by the
Corporation under Section 76A, he may be suspended by the Education Committee
pending The orders of the Corporation. In either case, the authority suspending
the officer shall report the orders of suspension along with reasons therefor
to the Corporation [Clause (b) of the proviso/sub-section (2)]. (4) In the case
of an officer appointed by the Corporation otherwise than under Sections 55,56A,74,75,
76A,77,78A or 78C, he may be fined reduced or suspended by the Commissioner.
Such an officer can be dismissed by the Commissioner with the previous approval
of the Standing Committee. If he is an officer appointed for the purposes of
Section 61(q), he can be dismissed by the Commissioner with the previous
approval of the Education Committee [Clause (c) of the proviso/sub-section
(2)].
[We
are not setting out the purport of clause (d) of the proviso since it is not
relevant herein.] The respondent herein is an officer whose minimum monthly
salary exclusive of allowances was less than Rs.1200/- at the relevant time. If
so, he does not fall under clause (a) of the proviso. It is agreed by the
counsel for the parties before us that he is also not an officer appointed
under any of the sections mentioned in clause (b) of the proviso. He falls under
clause (c). The contention of the learned counsel for the respondent is that
while the Commissioner can impose a fine, reduce in rank or suspend the
respondent without reference to the Standing Committee, he cannot dismiss him
without the previous approval of the Standing Committee. He submits that in the
case of the respondent, "the authority competent to remove him from his
office" in clause (c) of sub-section (1) of Section 6 of the Act must,
therefore, be construed as Commissioner acting with the previous approval of
the standing Committee and not the Commissioner acting on his own. Inasmuch as
in this case the previous sanction was accorded by the Commissioner without
obtaining the previous approval of the Standing Committee, it is submitted, tho
sanction is invalid and ineffective in law. On the other hand, Sri K.T.S.Tulsi,
learned Additional Solicitor General appearing for the Municipal Corporation,
submits that according to clause (c) of the proviso [sub-section (2) of Section
83], the Commissioner is the competent authority to dismiss the respondent. The
requirement of obtaining the previous approval of the Standing Committee does
not make him any the less the competent authority. It is no doubt a condition
which has to be complied with by the Commissioner before dismissing the
respondent, submits Sri Tulsi, but the said requirement does not make the
Standing Committee the competent authority within the meaning of Section 6(1)(c)
of the Act. The competent authority remains the Commissioner alone who is also
the appointing authority of the respondent within the meaning of sub-section
(1) of Section 83. The learned Additional Solicitor General submits that an
identical question had in fact arisen in the case of K.Veeraswami, former Chief
Justice of the Madras High Court in the decision reported in K.Veeraswami v.
Union of India [1991 (3) S.C.C.655] and that the observations therein support
his contention. That was a case where a former,Chief Justice of a High Court
was charged under offences punishable under Sections 5 and 6 of the Act. The
objection raised by him was that since a Judge of the High Court can be removed
only "by an order of the President of India passed after an address by
each House supported by a majority of the total membership of that House and by
a majority of not less than two-third of the members of that House present and
voting has been presented to the President in the same session for such
removal" [Article 218 read with clause (4) of Article 124 of the
Constitution of India]. The sanction for his prosecution can be accorded by the
President only on the basis of an address by each House of Parliament
prescribed according to Article 124(4). The Constitution Bench which heard the
case did discuss this issue at some length though it was also held that no such
previous sanction was necessary in the case of the appellant therein [K.Veeraswami]
inasmuch as he had ceased to hold the office of Chief Justice/Judge of a High
Court on the date of his prosecution. [It was held that the requirement of
previous sanction contemplated by Section 6(1)(c) of the Act does act apply in
the case of a person who has ceased to hold that office on the date of taking
cognizance of offence by the Court.] The relevant discussion is found at Pages
702-709. [Opinion of K.Jagannatha Shetty,J., speaking for himself and M.N.Venkatachaliah,J.
with whom B.C.Ray,J.
agreed].
The Constitution Bench [majority] was of the opinion that the previous sanction
contemplated by Section 6(1)(c) can be accorded by the President without the
necessity of the Parliament presenting an address [as contemplated by Article
124(4) of the Constitution]. At the same time, they imposed the requirement of
consultation with the Chief Justice of India before according such sanction.
This
requirement was imposed out of concern for and with a view to safeguard the
independence of judiciary. It would be enough for the purpose of this case if
we quote the following observations from the judgment:
"The
construction which would promote the general legislative purpose underlying the
provision in question, is to be preferred to a construction which would not. If
the literal meaning of the legislative language used would lead to results
which would defeat the purpose of the Act, the Court would be justified in
disregarding the literal meaning and adopt a liberal construction which
effectuates the object of the legislature. Section 6 with which we are
concerned indeed requires to be liberally construed. It is not a penal
provision but a measure of protection to public servants in the penal
enactment. It indicates the authorities without whose sanction a public servant
cannot be prosecuted. It is sufficient that the authorities prescribed there under
fall within the fair sense of the language of the section. The expression 'the
authority competent to remove' used in clause (c) of Section 6(1) has to be
construed to mean also an authority without whose order or affirmation the
public servant cannot be removed. In this view, the President can be considered
as the authority to grant sanction for prosecution of a Judge since the order
of the President for the removal of a Judge is mandatory.
The
motion passed by each House of Parliament with the special procedure prescribed
under clause (4) of Article 124 will not proprio vigore operate against the
Judge.
It
will not have the consequence of removing the Judge from the office unless it
is followed by an order of the President [Para
45]..... For the reasons which we have endeavored to outline and subject to the
directions issued, we hold that for the purpose of clause (c) of Section 6(1)
of the Act the President of India is the authority competent to give previous
sanction for the prosecution of a Judge of the Supreme Court and of the High
Court [Para 61]." It is true that the opinion of the Constitution Bench
was also influenced by the fact that the Parliament cannot discuss the conduct
of a Judge of the High Court or of the Supreme court except in a proceeding for
impeachment of the Judge, yet the fact remains that the Constitution Bench did
ultimately opine that the President cen accord sanction for prosecution of a
Judge af a High Court without the requirement of an address being presented by
the Parliament as provided by Section 124(4) of the Constitution. While it is
true that the provisions considered and the very context in which the said
discussion took place is quite different from the one concerned herein, yet the
relevance of the approach adopted by the majority in K.Veeraswami cannot be
denied.
On a
consideration of the relevant provisions and the object underlying the
provisions concerned herein, we are of the opinion that the previous sanction
required by Section 6(1)(c) of the Act was validly granted by the Commissioner
[without the previous approval of the Standing Committee] in the case of the
respondent; it was not necessary that before according such sanction, the
Commissioner should have obtained the previous approval of the Standing
Committee. It must be remembered that the object of Section 6(1)(C) or for that
matter Section 197 of the Criminal Procedure Code is that there should be no
unnecessary harassment of public servant; the idea is to save the public
servant from the harassment which may be caused to him if each and every
aggrieved or disgruntled person is allowed to institute a criminal complaint
against him. The protection is extended against prosecution even by a State
agency but the protection is not absolute or unqualified. If the authority
competent to remove such public servant accords previous sanction, such
prosecution can be instituted and proceeded with. The law presumes - and the
Court must also presume until the contrary is established - that such authority
will act fairly and objectively and will accord sanction only where he is satisfied
that the charge(s) against the public servant requires to be enquired into by a
Court. The authority is presumed to, and expected to, act consistent with
public interest and the interest of law - both of which demand that while a
public servant be not subjected to harassment, genuine charges and allegations
should be allowed to be examined by the Courts. Both the considerations
aforesaid should be present in the mind of the authority while deciding the
question of grant of previous sanction required by Section 6(1)(c) of the Act
or, for that matter, Section 197 of the Criminal Procedure Code.
[See R.S.Nayak
v. A.R.Antulay (1984 <2) B.C.C.183 at 207].
Looked
at from this standpoint, requiring the previous approval of the Standing
Committee at this stage, when the charges or allegations are yet to be enquired
into and established, would be imposing an impractical pre-condition.
One
can understand the Standing Committee considering the matter at the end of a
disciplinary enquiry or a criminal trial, when definite findings would be
available which would enable the Standing Committee to take a decision whether
or not to accord previous approval to the Commissioner to dismiss the
delinquent employee/officer.
But at
the stage of grant of sanction, bringing in Standing Committee may not be
consistent with the object underlying the said provisions. The Standing
Committee admittedly is not the competent authority; competent authority
remains the Municipal Commissioner. The previous approval of the Standing
Committee is only a pre-condition to the exercise of power of dismissal by the
Commissioner. As observed by this Court in K.Veeraswami the provision in
Section 6(1) should be construed liberally and not in a mechanical or pedantic
manner. The check upon dismissal need not be extended to according of previous
sanction; it would be more appropriate to confine it to the stage of dismissal
only. It must also be remembered that so far as the respondent is concerned,
the appointing authority for him is the Commissioner. [See Ground (xi) of the
Special Leave Petition which has not been denied by the respondent in his
counter]. It would, therefore, be reasonable and consistent with the object
underlying the Act as well as the Bombay Municipal Act to hold that the
previous sanction for prosecution contemplated by Section 6(1)(c) of the Act
could have been accorded and was validly accorded by the Commissioner acting by
himself and that the said previous sanction is not invalid or ineffective in
law on the ground that it was not preceded by the previous approval of the
Standing Committee.
It is
brought to our notice that by two Amendment Acts, Maharashtra Act 33 of 1989
and Act 12 of 1990, the proviso in Section 83 has been amended. We need not
refer to the said amendments since in this case we are concerned with the
period prior to the commencement of the said Amendment Acts.
The
appeal is accordingly Allowed, the judgment of the High Court is set aside and
that of the learned Special Judge is restored.
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