Held:- In our opinion, office means a position which requires the
person holding it to perform certain duties and discharge certain obligations
and removal from his office would mean to snap that permanently. By
repatriation, the person holding the office on deputation may not be required
to perform that duty and discharge the obligation of that office, but
nonetheless he continues to hold office and by virtue thereof performs certain
other duties and discharge certain other obligations. Therefore the power to
repatriate does not embrace within itself the power of removal from office as
envisaged under Section 19(1)(c) of the Act. The term removal means the act of
removing from office or putting an end to an employment. The distinction
between dismissal and removal from service is that former ordinarily
disqualifies from future employment but the latter does not.
REPORTABLE
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
CRIMINAL
APPEAL NO. 459 OF 2013
(@SPECIAL
LEAVE PETITION (CRIMINAL) No. 1593 of 2007)
STATE
OF UTTARAKHAND …
APPELLANT
VERSUS
YOGENDRA
NATH ARORA & ANR .
…RESPONDENTS
J U D G M E N T :
CHANDRAMAULI KR. PRASAD, J.
Yogendra Nath Arora (hereinafter referred to as “the Accused”) was
earlier employed as Deputy General Manager in U.P. Industrial Consultants, an undertaking
of the State of Uttar Pradesh. Consequent upon reorganization of the State of
Uttar Pradesh, he was taken on deputation on 23rd January, 2003 and posted as
Deputy General Manager of the State Industrial Development Corporation, (hereinafter referred to as “SIDCUL”), a
Government undertaking of the State of Uttarakhand. While working as the Deputy
General Manager of SIDCUL, a trap was laid on 30th of June, 2004 and he was arrested
while accepting an illegal gratification of Rs.30,000/-. This led to lodging of
Criminal Case No. 168 of 2004 at Police Station Dalanwala, District Dehradun
under Section 7 read with Section 13(1)(d) and 13(2) of the Prevention of
Corruption Act, 1988 (hereinafter referred to as “the Act”). The accused was
repatriated on the same day to his parent organization by the State Government
of Uttarakhand. It also granted sanction for his prosecution on 23rd
of August, 2004 and the charge sheet was submitted on 25th of August, 2004 in
the Court of Special Judge, Anti-Corruption-II, Nainital. Accused prayed for discharge,
inter alia contending that the materials on record are not sufficient for
framing of the charge and further, in the absence of valid sanction from the
competent authority, as required under Section 19(1)(c) of the Act, the trial
can not legally proceed. The Special Judge, by his order dated 18th of August,
2005 rejected his contention, inter alia, observing that there is sufficient material
on record for framing of the charge. As regard the plea of absence of sanction,
the learned Judge observed as follows:
“…the
question of sanction being merely an incident to the trial of the case is not
to be considered at this stage. It is undoubtedly true, that the accused was an
employee of the State of Uttar Pradesh
and was on deputation to the State of Uttaranchal and under the subordination
and administrative control of the State of Uttaranchal. Thus, the question of
sanction being incident to the trial of the case and on perusal of the record,
there is a sufficient material on record to charge the accused, the accused
shall be charged under Section 7 read with Section 13(a)(d) and 13(2) of the
Prevention of Corruption Act, 1988.”
Accordingly, the Special Judge rejected
the prayer of the accused.
Aggrieved
by the same, the accused preferred an application under Section 482 of the
Criminal Procedure Code before the High Court challenging the aforesaid order.
It was contended before the High Court that the accused being an employee of an
undertaking of the State Government of Uttar Pradesh, the State Government of
Uttarakhand is not competent to grant sanction. This submission found favour
with the High Court. The High Court held that the accused being an employee of
an undertaking of the State Government of Uttar Pradesh and having been
repatriated to his parent department, it is the State Government of the Uttar
Pradesh which is competent to remove him and to grant necessary sanction.
Accordingly, the High Court quashed the prosecution of the accused being
without valid sanction and, while doing so, observed that the State Government
of Uttarakhand shall be at liberty to prosecute the accused after obtaining
valid sanction from the State Government of Uttar Pradesh.
Aggrieved by the aforesaid order, the State of Uttarakhand has filed the present special
leave petition.
Leave granted.
It is common ground that without prejudice to the contention raised in
the present appeal, the State Government of Uttarakhand has written to the State
Government of Uttar Pradesh for granting sanction. But, till date no decision
has been communicated.
Ms. Rachana Srivastava, learned counsel representing the State of Uttarakhand concedes that sanction by the competent
State Government is necessary for prosecution of an accused for an offence
punishable under Section 7 and 13 of the Act. She points out that the accused
being on deputation to an undertaking of the State Government of Uttarakhand,
it had the power to repatriate him which would mean the power of removal from
office by the State Government of Uttarakhand. According to her, dislodging an accused
from an office and repatriating him would mean removal from his office. Removal
from office, according to her, would not mean the removal from service. She
emphasizes that the expression used in Section 19(1)(c) is ‘removal from his
office’ and not ‘removal from service’. Section 19(1)(c) of the Act which is relevant for the purpose
reads as follows:
“19. 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) xxx xxx
xxx
(b) xxx xxx
xxx
(c)in the case of any other person, of the
authority competent to remove him from his office.”
In support of the submission reliance has been placed to a Constitution
Bench judgment of this Court in the case of R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 and our attention has
been drawn to the following passage from paragraph 23 of the judgment which
reads as follows:
“…Each of
the three clauses of subsection(1) of Section 6 uses the expression ‘office’
and the power to grant sanction is conferred on the authority competent to
remove the public servant from his office and Section 6 requires a sanction
before taking cognizance of offences committed by public servant. The offence
would be committed by the public servant by misusing or abusing the power of
office and it is from that office, the authority must be competent to remove
him so as to be entitled to grant sanction. The removal would bring about
cessation of interrelation between the office and abuse by the holder of the
office. The link between power with opportunity to abuse and the holder of
office would be severed by removal from office. Therefore, when a public
servant is accused of an offence of taking gratification other than legal remuneration
for doing or forbearing to do an official act (Section 161 IPC) or as a public
servant abets offences punishable under Sections 161 and 163 (Section 164 IPC)
or as public servant obtains a valuable thing without consideration from person
concerned in any proceeding or business transacted by such public servant (Section
165 IPC) or commits criminal misconduct as defined in Section 5 of the 1947
Act, it is implicit in the various offences that the public servant has misused
or abused the power of office held by him as public servant. The expression ‘office’
in the three sub-clauses of Section 6(1) would clearly denote that office which
the public servant misused or abused for corrupt motives for which he is to be
prosecuted and in respect of which a sanction to prosecute him is necessary by the
competent authority entitled to remove him from that office which he has
abused. This interrelation between the office and its abuse if severed would
render Section 6 devoid of any meaning. And this interrelation clearly provides
a clue to the understanding of the provision in Section 6 providing for
sanction by a competent authority who would be able to judge the action of the
public servant before removing the bar, by granting sanction, to the taking of
the cognizance of offences by the court against the public servant. Therefore,
it unquestionably follows that the sanction to prosecute can be given by an
authority competent to remove the public servant from the office which he has
misused or abused because that authority alone would be able to know whether
there has been a misuse or abuse of the office by the public servant and not
some rank outsider.”
In fairness to her, she concedes that power to remove the accused from
service is with the State Government of Uttar Pradesh and if her contention
that power to repatriate would mean the power to remove from service does not
find favour, it shall be the State Government of Uttar Pradesh which would be
competent to grant sanction.
Mr. R.G. Srivastava, learned counsel representing the accused, however,
contends that the expression removal from office would mean termination from
service and un disputably in the facts of the present case it was the State Government
of Uttar Pradesh which was competent to terminate the service of the accused.
According to him, removal from office would mean removal from permanent
employment.
In view of the rival submissions, the question which falls for
determination is as to whether the expression removal from his office would
mean dislodging him from holding that office and shifting him to another
office. In other words, the power of the State Government of Uttarakhand to
repatriate the accused would mean that it has power to remove. In our opinion, office
means a position which requires the person holding it to perform certain duties
and discharge certain obligations and removal from his office would mean to
snap that permanently. By repatriation, the person holding the office on deputation
may not be required to perform that duty and discharge the obligation of that
office, but nonetheless he continues to hold office and by virtue thereof
performs certain other duties and discharge certain other obligations.
Therefore the power to repatriate does not embrace within itself the power of
removal from office as envisaged under Section 19(1)(c) of the Act. The term removal
means the act of removing from office or putting an end to an employment. The
distinction between dismissal and removal from service is that former
ordinarily disqualifies from future employment but the latter does not. Hence,
we reject this submission of Ms. Srivastava.
The view which we have taken finds support from the decision of this
Court in the case of V.K. Sharma v.
State (Delhi Admn.), 1975 (1) SCC 784 in which it has been held as follows:
“…..The
purport of taking the sanction from the authority competent to remove a corrupt
government servant from his office is not only to remove him from his temporary
office but to remove him from government service.”
We are told by Ms. Srivastava that the request of the State Government
of Uttarakhand for sanction of prosecution of the accused is still pending
before the State Government of Uttar Pradesh. Hence, we deem it expedient that
the latter takes decision on the request so made, if already not taken, within
8 weeks from the date of communication of this order. It is made clear that we
are not expressing any opinion in regard to the merit of the request made by
the State Government of Uttarakhand and it shall be decided by the State
Government of Uttar Pradesh on its own merit in accordance with law.
Let a copy of this order be
forwarded to the Chief Secretary of the State Government of Uttar Pradesh for
appropriate action forthwith.
In the result, we do not
find any merit in this appeal and it is dismissed accordingly with the
aforesaid observation.
…………………………………………………………J.
(CHANDRAMAULI
KR. PRASAD)
…………….………………………………………J.
(V. GOPALA
GOWDA)
NEW
DELHI,
MARCH
18,2013
