MATHUR, J. - (1.) THE petitioners are in employment of the State of Rajasthan and having their lien with the department of irrigation. THE Chief Engineer, Water Resources (North Zone), Hanumangarh Junction, is the authority competent to remove the petitioners from service, thus, as per provisions of Section 19(l)(c) of the Prevention of Corruption Act, 1988 (hereinafter to be referred to as, "the Act of 1988") by an order dated 11.1.2010 he granted sanction to prosecute the petitioners for the offences punishable under Section 13(l)(d)(e) and Section 13(2) of the Act of 1988 and also placed them under suspension vide order dated 13.1.2010. To question the correctness of the orders aforesaid this petition for writ is preferred.
(2.) IN brief, facts of the case are that the officials of the Anti-Corruption Bureau, Sriganganagar by acting upon some information, visited the office of Executive Engineer, Rajasthan State Water Resources Project, Sriganganagar and Executive Engineer, Gang Nahar, Link Channel Division, Sriganganagar, and on making certain search they recovered a sum of Rs.4635 from the petitioner Subhash Bhatia, a sum of Rs. 10,000/-, Rs.34,000/-, Rs.7275A, Rs.7270/-, Rs.3920/- and Rs.2460/- from petitioners Nanak Chand, Laxmi Narayan, Raj Bux, Mohan Singh Rajvi, Lalit Kumar and Hanuman Sahai respectively. On recovery of the amount aforesaid explanation was tendered by the petitioners, however, the officers of the Anti-Corruption Bureau registered a criminal case (FIR No.207/2006) on 2.8.2006 at Outpost Sriganganagar, Principal Police Station, Jaipur. The Supdt. of Police, Anti Corruption Bureau by letter dated 19.11.2007 requested the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction to consider and grant the sanction for prosecution of the petitioners. IN pursuant to the communication aforesaid the competent authority i.e. respondent No.3 considered the matter and after having deliberations with the investigating officer reached at the conclusion that no case was made out to prosecute the petitioners, though there may be a case to initiate disciplinary action, as per the provisions of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. An opinion was accordingly forwarded under a letter dated 20.2.2009 to the Chief Engineer, Water Resources Department, Rajasthan, Jaipur. The office of the Chief Engineer, Water Resources Department, Government of Rajasthan, Jaipur under a letter dated 16.4.2009 remitted the matter to the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction to take appropriate decision at his own level being the authority competent, as per the Act of 1988. On receipt of the letter dated 16.4.2009 the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction again referred the matter to Chief Engineer, Water Resources Department, Jaipur detailing therein that in view of the Department of Personnel Circular dated 30.5.2001 an action was required to be taken at department level and not at the level of zone. The Chief Engineer, Water Resources Department again sent entire record to the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction with advice to forward the matter to the Secretary to the Government of Rajasthan. Accordingly, a detailed report was sent to the Deputy Secretary, Water Resources Department under a letter dated 31.7.2009. On receiving the letter aforesaid the Deputy Secretary by his letter dated 10.82009 sought comments in the matter from the Chief Engineer, Bisalpur Project, however, he refused to make any comment in view of the fact that necessary comments were already made by the Chief Engineer, Water Resources (North Zone), Hanumangarh Junction. IN such circumstances, under a letter dated 5.11.2009 the Deputy Secretary to the Government of Rajasthan, Department of Water Resources remitted the matter to the Chief Engineer, Water Resources (North Zone) for reconsideration. The authority competent i.e. Chief Engineer (North Zone), Hanumangarh Junction under a letter dated 1.12.2009 after examining the material available reiterated his earlier opinion. On receipt of the letter dated 1.12.2009 the Deputy Secretary under a letter dated 31.12.2009 directed the Chief Engineer, Water Resources (North Zone) to grant the sanction for prosecution of the petitioners immediately. The letter dated 31.12.2009 reads as under: - JUDGEMENT_1015_RAJLW2_2011Image1.jpg JUDGEMENT_1015_RAJLW2_2011Image2.jpg In pursuant to the letter dated 31.12.2009 the Chief Engineer, Water Resources (North Zone), Hanurnangarh Junction granted sanction to prosecute the petitioners under a letter dated 11.1.2010 that reads as under:- JUDGEMENT_1015_RAJLW2_2011Image3.jpg The Chief Engineer, Water Resources (North Zone), Hanurnangarh Junction after granting sanction for prosecuting the petitioners, also placed them under suspension vide order dated 13.1.2010. While challenging the order dated 11.1.2010 the contention of learned counsel for the petitioner is that as per Section 19(l)(c) of the Act of 1988 sanction for prosecution is required to be given by the authority competent to remove the public servant concerned from service, however, in the instant matter such sanction has been granted by the authority competent without application of his mind and just by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan, Department of Water Resources. It is asserted that the instant one is a case where the powers of the authority competent have been abducted by the Deputy Secretary. As such, the sanction granted is not in accordance with the true spirit of the provisions of Section 9(l)(c) of the Act of 1988. To substantiate the contention reliance is placed by learned counsel for the petitioner upon the judgment of Hon'ble Supreme Court in State of Karnataka vs. Ameerjan (reported in 2008 (1) SCC (Cri.) Page 130). In the case aforesaid Hon'ble Supreme Court held as under:- "that an order of sanction should not be construed in a pedantic manner. But, it is also well settled that the purpose for which an order of sanction is required to be passed should always be borne in mind. Ordinarily, the sanctioning authority is the best person to judge as to whether the public servant concerned should receive the protection under the Act by refusing to accord sanction for his prosecution or not. 10. For the aforementioned purpose, indisputably, application of mind on the part of the sanctioning authority is imperative. The order granted sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority." Reliance is also placed upon a Single Bench Judgment of this Court in Kishan Lal vs. State of Rajasthan & Ors. In the case aforesaid this Court while dealing with the issue regarding application of mind by the authority competent at the time of granting sanction as per provisions of Section 19(1)(c) of the Act of 1988 held as under:- "Section 19(l)(c) of the Act of 1988 provides that no court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant except with previous sanction for any person not covered under Section 19(1) (a) and 19(1)(b) by the authority competent to remove him from his office. In the instant matter admittedly the authority competent to remove the petitioner from office Is the Chief Engineer, Department of Irrigation. The Chief Engineer, Department of Irrigation on 19.12.1997 after considering all necessary facts reached at a definite conclusion regarding non-involvement of the petitioner with regard to any deal relating to the complainant Sh. Shankar Lal. Accordingly, a conscious decision was taken after consulting Addl. Superintendent of Police, Rajasthan State Investigation Bureau, Sriganganagar and Superintendent of Police (Third), Rajasthan State investigation Bureau, Jaipur for not granting sanction for prosecution of the petitioner. It is only the Deputy Secretary to the Government of Rajasthan who instructed, the Chief Engineer to issue sanction required for prosecution of the petitioner under Prevention of Corruption Act, 1988. The Chief Engineer by the order dated 15.10.1999 simply by acting upon the instructions given by the Deputy Secretary to the Government of Rajasthan under the letter dated 23.9.1999 granted sanction for prosecution of the petitioner. The order dated 15.10.1999 no where reflects application of mind by the authority competent. The Chief Engineer being the authority competent for grant of sanction to prosecute the petitioner for the offences punishable under the Act of 1988 was required to apply his mind objectively before granting sanction for prosecution of the petitioner. He is not supposed to act merely as an orderly to execute command of an administrative officer. "By a statute an important power is conferred upon him and such power must be exercised objectively, independently and by due application of mind. In the present case a conscious decision was taken by the competent authority on 19.12.1997 after making necessary consultation with responsible Police Officers for not granting sanction to prosecute the petitioner. Such an important decision stood altered by the Chief Engineer in highly casual manner just on receiving instructions from Deputy Secretary to the Government of Rajasthan. May this alteration be due to fear psychosis or due to a tendency to accept every instruction given by the administrative authorities, even by ignoring statutory obligations but the resultant is abduction of powers of the competent authority by Deputy Secretary of the Government. The Government, if was not satisfied with the decision taken by the competent authority, could have suggested its view with cogent reasons to reconsider the decision, but in no event it was proper to give command to the authority competent having statutory power for granting sanction for prosecution. The irritating feature of the case is that the competent authority has given sanction to prosecute the petitioner without application of mind just by acting upon instruction given by a person who is otherwise stranger, so far as the requirement of statute is concerned. Therefore, such order can very well be termed as an order without jurisdiction."
(3.) WHILE meeting with the arguments advanced by learned counsel for the petitioner it is submitted on behalf of the respondents that before granting sanction under order dated 11.1.2010 the authority competent adequately applied its mind by going through the entire record available. The stand of the respondents as averred in reply to the writ petition reads as follows:- "That the contents of para 23 of the writ petition are not admitted as alleged hence denied. It is wrong to say that order dated 11.01.2010 has been passed by the disciplinary Authority without any application of mind. The Chief Engineer, Water Resources (North) Hanumangarh is competent to pass such orders. As the Anti corruption bureau had leveled charges of corruption against these employees as such there was a prima facia case against them so the instructions of the administrative department were complied with as per rules. 24. That the contents of para 24 of the writ petition are not admitted as alleged hence denied. The matter was investigated by the Chief Engineer Water Resources (North) Hanumangarh the same was conveyed to the Administrative Department. The report of the Chief Engineer, Water Resources (north) Hanumangarh was analysed by the administrative department and the administrative department found that the sanction to grant permission for prosecution must be issued. The Administrative Department is controlling office so the instruction so issued is not in contravention to any rule or law." Learned counsel for the respondents also placed reliance upon a judgment of Hon'ble Supreme Court in Supdt. of Police (CBI) vs. Deepak Chowdhary (reported in AIR 1996 SC Page 186) with assertion that the grant of sanction is an administrative act, and as such, there is no need to adhere the principles of natural justice while considering a case for grant of sanction to prosecute a public servant. Reliance is also placed by learned counsel for the respondents upon a judgment of Hon'ble Apex Court in State of Bihar & Anr. vs. P.P. Sharma & Anr. (reported in AIR 1991 SC 1260) to substantiate the contention that the High Court can not examine merits of a criminal case while exercising powers under Article 226 of the Constitution of India. Heard counsel for the parties. ;