Judgment:
CWP No.11002 of 1990 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ***** CWP No.11002 of 1990 (O&M) Date of Decision:10.02.2014 ***** Vishav Kant Garg .
.Petitioner Versus The Punjab State Electricity Board, Patiala and others .
.
Respondents ***** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN ***** Present: Mr.S.P.Jain, Sr.Advocate, with Mr.Dheeraj Jain, Advocate, and Mr.Vijay Kumar Chaudhary, Advocate, for the petitioner.
Mr.S.S.Brar, Advocate, for the respondent.
Ms.Deipa Singh, Addl.
A.G.Punjab.
***** RAKESH KUMAR JAIN, J.
The petitioner has prayed for a writ in the nature of certiorari for quashing order dated 25.6.1990 (Annexure P-11) by which respondent No.2 has granted permission for prosecution of the petitioner in FIR No.398 dated 26.12.1985 registered under Section 5(2) 47 of the Prevention of Corruption Act, 1988 [for short ‘the Act’].and Section 161 of the Indian Penal Code.
The case pleaded by the petitioner is that he was working as S.D.O (D/S).Sub Division, Rupana since CWP No.11002 of 1990 -2- 4.10.1985.
He was on casual leave on 23.12.1985 and 24.12.1985 and station leave from 23.12.1985 to 25.12.1985.
He has been involved in a false case by one Massa Singh son of Bhag Singh under Section 5(2) 47 of the Act when he came to know about the registration of false case, he made a representation to respondent No.2 on 2.1.1986 to hold a departmental enquiry before taking any action or granting permission for prosecution.
When he did not get any reply, he sent a reminder on 8.7.1986.
He was also provisionally promoted and regularized by the department on 3.5.1988 and with the promotion his appointing and punishing authority has changed because while working as SDEO his appointing and punishing authority was Administrative Member but after his promotion his appointing and punishing authority became Chairman of the Board.
The department, after taking into consideration the FIR as well as representation of the petitioner, found that he was falsely implicated.
The report from the field staff and from the DIG/D&S, PSEB Patiala was also taken and considering all the facts and circumstances of the case the competent authority concluded that it was not a fit case for granting sanction for prosecution and in that regard a letter was written by the Deputy Secretary (Service-II) to the Chief Director, Vigilance Bureau, Punjab on 28.6.1988.
The petitioner remained under suspension from 26.12.1985 to 31.12.1985 as he was arrested by the Police in CWP No.11002 of 1990 -3- the said case.
He was reinstated w.e.f.1.1.1986 after which he sent a representation to the respondents on 3.8.1988 for regularizing the period of suspension and sanction of increments.
In response to the representation, he received a letter dated 17.11.1988 that decision regarding regularization of suspension period would be taken by the department after receipt of decision from the Punjab Government.
It is further the case of the petitioner that in the year 1989, the matter was again taken up by the Punjab Government with the PSEB.
Although the competent authority had no power to review the decision but still it was re-considered and the Administrative Member came to the conclusion that it was not a fit case for prosecution and the decision taken by the predecessor was just and fair.
A letter in that regard was sent to the Government on 5.7.1989.
The Government was not satisfied and the Administrative Member was summoned by the Financial Commissioner on 12.6.1990 vide letter dated 5.6.1990 and on the basis thereof, the 3rd review order was passed on 25.6.1990 granting sanction of prosecution of the petitioner which has led to the filing of the present writ petition.
The written statement has been filed by respondent No.3 in which it is alleged that the Administrative Member has passed the order of sanction of prosecution of CWP No.11002 of 1990 -4- the petitioner because true facts were not brought to his knowledge.
Learned counsel for the petitioner has submitted that though there is no vested power of review with the respondents as the review could only be ordered if there is an error apparent on the face of the record regarding the facts but still if it is presumed though not admitted, the power of review is there, it could be exercised only if there is some additional material before the reviewing authority and not on the earlier material on the basis of which the sanction was not granted.
In support of his submission, he has relied upon a judgment of the Supreme Court in the case of “State of Himachal Pradesh versus Nishant Sareen”.
2010 (14) SCC527 decisions of this Court in the cases of “Harbans Lal versus State of Punjab and another”.
2009 (2) RCR (Criminal) 305, “Mohammed Iqbal Bhatti versus State of Punjab”.
2006(2) RCR (Criminal) 430, “Dr.
Jaswinder Kaur versus State of Punjab and another”.
2001(2) RCR (Criminal) 58, “Harmesh Kumar versus State of Punjab”.
1999(2) RCR (Criminal) 351 and “Harlochan Singh versus State of Punjab”.
2010(2) RCR (Criminal) 358.
On the point of delay, learned counsel for the petitioner has also referred to the judgment of the Supreme Court in the case of “Mansukhlal Vithaldas Chauhan versus State of Gujarat”.
1997 (4) RCR (Criminal) 236.
CWP No.11002 of 1990 -5- On the other hand, learned counsel for the respondents has submitted that the allegation against the petitioner is that he was caught red handed at the time of taking bribe and once sanction has been granted by the impugned order, the validity of sanction can only be raised during the trial and not at this stage.
He has relied upon a judgment of the Supreme Court in the case of “A.K.Singh and others versus Uttarakhand Jan Morcha and others”.
1999 (3) SC414and a decision of this Court in CWP No.10055 of 2010 titled as “Vijay Kumar janjua versus State of Punjab and another”.
decided on 24.1.2014.
I have heard learned counsel for the parties and examined the record.
It may be pertinent to mention that the question of grant of sanction was fiRs.decided by the respondents on 28.6.1988 wherein it has been observed that “after consideration of the facts contained in the enquiry report of S.P.Vigilance Bureau, Ferozepore and in the enquiry report of DIG/V&S, PSEB, Patiala, and witnesses, have decided not to grant sanction for prosecution of Dr.
V.K.Garg, AE.
The competent authority also gathered true facts in this case from the field officers and also a report from DIG/V&S, PSEB, Patiala.
From all the facts as collected and received in this office it has been found that Er.
Vishav Kant Garg, AE/DS, PSEB, Rupana has been falsely implicated in this case.
It was CWP No.11002 of 1990 -6- further observed that the following two pointes were sufficient to prove that the officer is innocent and falsely implicated:- “i) The complainant in the FIR has stated that he had met the SDO at Rupana bus stand on 24.12.1985 when the latter demanded money.
But the SDO was on station leave from 23.12.1985 to 25.12.1985 and his presence at Bhatinda on 24.12.1985 has been confirmed as per report of our Vigilance Wing.
ii) The SDO had already approved the case of Sh.
Massa Singh before the raid was conducted on 26.12.1985, as would be evident from the Estimate Register and consumer case file which have been seized by the Police.
If the SDO wanted money for allowing the R.C.O.he would not have approved the same without getting the money.
The case was put up to him on 24.12.1985 on which date he was on leave.
He returned on 25.12.1985 and approved the case on the same day without any delay.”
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CWP No.11002 of 1990 -7- The question of grant of sanction was reviewed and it was reiterated by the Chairman of the PSEB to the Government vide letter dated 5.7.1989 observing thus: - “The competency to grant sanction in such cases rests with the Administrative Member.
After considering the matter carefully alongwith the Administrative Member came to the conclusion that this was not a fit case for the grant of permission to prosecute the officer, namely, V.K.Garg.
The Chief Director, Vigilanec Bureau, Punjab was informed accordingly, vide letter No.111271/C/4731 dated 28.1.1988 (copy enclosed).”
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The case has again been reviewed by the Administrative member.
He has also come to the conclusion that the decision taken by his predecessor was just and fair”.
However, the sanction has been granted vide impugned order dated 25.6.1990 (Annexure P-11) without there being any fresh material available with the respondents because all that has been argued before this Court is that the impugned order has been passed as earlier complete record CWP No.11002 of 1990 -8- was not produced whereas in the order dated 28.6.1988, the Administrative Officer has specifically made a reference to the report of S.P.Vigilance Bureau, Ferozepore, enquiry report of DIG/V&S, PSEB, Patiala and from the field officeRs.It has also been found that the petitioner had already approved the case of Mansa Singh before the raid was conducted in which it is alleged that he has been found in receipt of `400/- as bribe.
It has been observed that if he wanted money for allowing the R.C.O, he would not have approved the same without getting the money.
In any case, from the various judgments cited by learned counsel for the petitioner, the law is well settled that the sanction of prosecution cannot be reviewed in the absence of any fresh material with the respondents.
It has been categorically held in the case of Mohammed Iqbal Bhatti (Supra) by Division Bench of this Court that the authority cannot review its order on the same material though it could review on new material but it should be absolutely new which was not under consideration earlier.
Similarly in the case of State of Himachal Pradesh (Supra).the Supreme Court held that in a case where the respondent was caught red handed accepting bribe from the complainant, where the sanction is refused and the Vigilance Department took up the matter again with Principal Secretary for grant of sanction, the competent authority cannot reconsider the matter for CWP No.11002 of 1990 -9- grant of sanction of the prosecution in the absence of any fresh material available for further consideration.
It has been held that the power of sanctioning authority, being not of continuing character, could have been exercised only once on same material.
Even otherwise, there is a delay in this case as the instance is of 1985 and in the meantime, the petitioner has also been promoted.
The judgments relied upon by the learned counsel for the respondents are not applicable to the facts and circumstances of the present case because in the case of A.K.Singh and others (Supra).it was held that once a sanction has been granted and the trial is going on, the High Court should not interfere on the question of sanctioning rather it should be left to be decided by the trial Court but in the present case, the petitioner has come to this Court before the matter could have been taken up by the trial Court and at the time of admission further proceedings were stayed on 18.8.1990.
Since, it is not a case set up by the respondents that the impugned order has been passed on the basis of fresh material, which has not been considered earlier when the sanction was declined twice, the impugned order cannot be sustained in view of the catena of judgments which have already been referred above on this issue that in the absence of any fresh material, sanction cannot be reviewed as held by CWP No.11002 of 1990 - 10 - the Supreme Court in the case of State of Himachal Pradesh (Supra).that power of sanctioning authority, being not of continuing character, could have been exercised only once on the same materials and not thereafter.
In view of the aforesaid discussion, I find merit in the present writ petition and the same is thus, hereby allowed and the impugned order dated 25.6.1990 (Annexure P-11) is quashed.
(RAKESH KUMAR JAIN) 10.02.2014 JUDGE Vivek Pahwa Vivek 2014.02.13 11:42 I attest to the accuracy and integrity of this document