Monday 1 December 2014

Whether power to repatriate embrace within itself power to remove govt servant from service?

  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. 
REPORTABLE
                 IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 459 OF 2013

           

STATE OF UTTARAKHAND  Vs YOGENDRA NATH ARORA 

Citation;(2013) 14 SCC 299



       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 sub-section(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 undisputably 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

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