M.P. State Vs.
Pradeep Kumar Gupta
A.K. GANGULY, J.
appeal is filed at the instance of the State impugning the order of the High Court
dated 17.12.2004 whereby the High Court in a revision filed before it was
pleased to held that sanction for prosecution which was granted to the respondent,
Sh. Pradeep Kumar Gupta was invalid and High Court was pleased to quash the
coming to the said finding, the High Court, inter alia, held that Sh. Pradeep
Kumar Gupta, (hereinafter called the respondent), was posted as an Engineer in
Municipal Corporation of Ujjain and was a public servant and can be removed
from the said post by the Mayor-in-Council under the relevant provisions of the
Madhya Pradesh Municipal Corporation Act and the sanction for prosecution granted
by the State Government is invalid and incompetent.
support of the said finding, the High Court, inter alia, relied on a judgment
of Ashok Baijal Vs. M.P. Government reported as 1998 Crl. L.J. 3511.
have heard the counsel appearing for the parties. We are of the view that the
conclusions reached by the High Court are not warranted either in facts or in law
for the reasons discussed herein-under.
the order dated 4.10.1983 of the Government of Madhya Pradesh Local Self Government,
it is clear that the respondent was appointed under Section 86(1) of the Madhya
Pradesh Municipality Act and such appointment was made by the State Government in
terms of Rule 17 of the Madhya Pradesh Municipal Service (Executive) Rules, 1973.
It is thus clear that the respondent was appointed by the State Government.
learned counsel for the appellant has also drawn the attention of this Court to
other materials on record from which it appears that the respondent, after such
appointment, was deputed by order dated 9.11.99 of M.P. Local Self Government
in the Municipal Corporation, Khandwa in place of Municipality of Ujjain.
attention is also drawn to the fact that in the course of his employment, the respondent
suffered a penalty of withholding of two increments and the same was also
imposed by the Government. The said order of punishment was filed in the trial
court by the respondent himself. These are admitted facts of the case.
facts were also available before the High Court, but unfortunately, the High Court
has not at all considered these facts.
coming to the legal question, it appears that Section 86 of the M.P. Municipalities
Act, 1961 (hereinafter referred to as the said Act) provides for constitution
of State Municipal Services. In Section 86 it is also made clear that such services
to be constituted by the State Government shall make rules in respect of the recruitment,
qualification, appointment, promotion, etc. and also for dismissal, removal, conduct,
departmental punishment under Section 86(2) of the Act. Section 86(4) also provides
that the State Government may transfer any member of the said municipal service
from one municipal council to another municipal council.
is, therefore, clear that the respondent having been appointed under Section 86
of the said Act, has been appointed by the State Government and remains under the
control of the State Government throughout his service. The relevant rule in this
connection is the Madhya Pradesh Municipal Service (Executive) Rules, 1973. Under
Rule 2(b) of the said Rules, Appointing Authority has been defined as follows: (b)
"Appointing Authority" means State Government in respect to Select
Grades, Class I, Class II and Class III Chief Municipal Officers
under Rule 2(i) service has been defined as follows: (i) "Service" means
the Municipal Service for the State constituted under sub-section (i) of
Section 86 of the Act.
32 of the said Rule provides as follows: 32. Authorities who may impose
penalties - (1) Subject to the provisions of the Act and these rules the penalties
mentioned in clauses (I) to (ii) of Rule 31 may be imposed on a member of the service
by the [appointing authority or Divisional Commissioner or Director]. 4 (2) Subject
to the provisions of the Act and these rules, the penalties mentioned in clauses
(iv) to (vi) of Rule 31 shall not be imposed on a member of the service except
by the appointing authority and in consultation with the Public Service
is clear from the aforesaid Rules that the State Government is the Appointing
Authority and the State Government can impose on the members of the State Service
penalties mentioned in clause (i) to (vi) of such Rule. Therefore, State Government
being the Appointing Authority and being the Authority to impose punishment on the
employee is also the Authority who can remove an employee from the service.
being the position, it is clear from the provisions of Section 19 of the
Prevention of Corruption Act, 1988 that the Authority who is competent to remove
the person concerned is competent to grant sanction. Unfortunately, the High Court,
without considering these aspects of the Act and Rules, relied only on the judgment
of Ashok Baijal (supra) in coming to an erroneous finding. Provision of Section
19(1) of Prevention of Corruption Act, 1988 is set out hereunder: Previous sanction
necessary for prosecution - (1) No court shall take cognizance of an offence
punishable under sections 7, 10, 11, 13 and 15 alleged to have been committed by
a public servant, except with the previous sanction, -
a. in the case of a person
who is employed in connection with the affairs of the Union and is not
removable from his office save by or with the sanction of the Central
Government, of that Government;
b. in the case of a
person who is employed with the affairs of a State and is not removable from
his office save by or with the sanction of the State Government, of that
c. in the case of any other
person, of the authority competent to remove him from his office.
views have been expressed in the case of State of Tamil Nadu Vs. T. Thulasingam
and others reported in AIR 1975 Supreme Court
are, however, not called upon to decide the correctness of the decision rendered
in Ashok Baijal case (supra). We further make it clear that the decision is Ashok
Baijal case (supra) is not attracted to the facts and circumstances of this case.
However, we do not express any opinion on the correctness of the proposition
laid down in Ashok Baijal case (supra).
appeal is allowed, the order of the High Court is set aside and the trial of the
case of the respondent may proceed in accordance with law.
(ASOK KUMAR GANGULY)
J (DEEPAK VERMA)
M.P. State Vs.
Pradeep Kumar Gupta
This Appeal was
called on for hearing today.
CORAM : HON'BLE MR.
JUSTICE ASOK KUMAR GANGULY
HON'BLE MR. JUSTICE
DEEPAK VERMA (VACATION BENCH)
Mr. S.K. Dubey, Sr.
Mr. Vikas Bansal,
Ms. Vibha Datta
Mr. Jitendra Mohan
UPON hearing counsel
the Court made the following
O R D E R
The appeal is allowed
in terms of the signed order.
COURT MASTER (NAVEEN
KUMAR) COURT MASTER (RENU DIWAN)
(Signed order is placed on the file) (Signed order is placed on the file)