Temporary Discharge Order Not Manifestly Illegal: Punjab & Haryana HC Dismisses Petition Against IAS Officer Accused Of Corruption

The Punjab and Haryana High Court held that the temporary discharge order of Respondent no. 2 is not manifestly illegal.

The Court disposed of the Criminal Petition challenging the discharge order of Respondent No. 2 (An IAS Officer) by the Special Court under the Prevention of Corruption Act, 1988 (PC Act). The State Government had granted a sanction to prosecute but later withdrew the request as the state government was not the competent authority. Therefore, the Special Court temporarily discharged Respondent no 2.

Justice Anupinder Singh Grewal noted, “Therefore, there does not seem to be any legal infirmity in discharging the respondent No.2 for the time being for want of sanction from the competent authority”.

Advocate Vaibhav Sehgal appeared for the Petitioner, Deputy Advocate General Luvinder Sofat appeared for the State, Senior Advocate Anmol Rattan Sidhu appeared for Respondent no 2, and Additional Solicitor General Satyapal Jain appeared for Respondent no. 3.

A case has been filed against Respondent No.2 for violating Sections 7 and 13(2) of the PC Act. The allegations state that while Respondent No.2 was the Director of the Department of Industries and Commerce (DDIC), he received an illegal gratification of Rs.2 lacs. It was claimed that Respondent No.2 demanded Rs.6 lacs for allotting a vacant plot beside the Petitioner's broiler factory. The deal was settled at Rs.5 lacs, and the Petitioner paid Rs.2 lacs to Respondent No.2, who allegedly accepted it. Two witnesses were present during the recovery. The Governor of Punjab granted permission to prosecute under Section 19 of the PC Act. Respondent No.2 challenged the order, but the Single Bench upheld it, allowing Respondent No.2 to raise the issues before the Trial Court. The Division Bench also dismissed Respondent No.2's challenge, upholding the Single Bench's order. Charges were not framed then, so Respondent No.2 was free to raise the points taken therein before the Trial Court. The State Government communicated with the Central Government to obtain permission to prosecute Respondent No.2. The Special Court temporarily discharged Respondent No.2, citing that the Central Government was the competent authority to grant permission to prosecute an IAS officer. In contrast, the State Government had granted it. However, the Special Court observed that the case against Respondent No.2 could be revived when the competent authority accords a valid sanction and the matter was pending consideration before the Central Government.

A Criminal Petition was filed before the Court under Section 482 of the Criminal Procedure Code (CrPC) challenging the acquittal order of Respondent No. 2 by the Special Court in a criminal case arising out of FIR registered under Sections 7 and 13(2) of the PC Act.

The Court noted that the first issue to determine was “which is the competent authority to accord sanction to prosecute respondent No.2. Respondent No.2 was a member of the Indian Administrative Service and serving in the State Government as Director, Department of Industries and Commerce, at the time of the alleged incident”.

The Court noted that per Article 311 (1) of the Constitution, the members of the civil service of the Union/State cannot be dismissed or removed by an authority subordinate to the one that appointed them. The Court observed that under Section 19 (1) of the PC Act, the competent authority to grant permission for the prosecution of a public servant is the one that is authorized to remove them from their office. The Court held that the competent authority to accord sanction to prosecute an officer of the Indian Administrative Service (IAS) is the Central Government.

The Court referred to the Supreme Court Judgment in the case of Vijay Rajmohan v Central Bureau of Investigation (Anti Corruption Branch). The Court reiterated that if the sanctioning authority does not decide within four months, it would cause prejudice to the accused, due to non-application of mind. However, the Court also reiterated that if the mandatory period is not complied with, it would not automatically quash the criminal proceedings, as prosecuting a public servant for corruption has an element of public interest that directly affects the rule of law. Additionally, the Court emphasized that the complainant or victim has no other remedy for judicial redressal if the criminal proceedings are automatically quashed.

Furthermore, the Court assessed the consequences of an invalid sanction or sanction granted by an incompetent authority. The Court reiterated that it's necessary to have authorization from a competent authority to prosecute a public servant. If this authorization is absent, any subsequent prosecution will be flawed. The Court emphasized that the public servant can raise concerns about the validity or absence of a valid authorization during the Trial, but they cannot disrupt the Trial itself. The authorization requirement protects public servants from unfounded and fabricated accusations and enables them to carry out their duties confidently. Therefore, there is no legal issue in temporarily discharging Respondent No.2 due to the lack of authorization from a competent authority.

“There is no denying the proposition of law laid down that sanction to prosecute from competent authority is necessary before prosecuting a public servant. Prosecution in absence of sanction would be vitiated. The public servant may take objections with regard to validity or absence of a valid sanction at cognizance stage but after the commencement of the trial he may take objections at the time of conclusion of the trial, but the trial shall not be scuttled in the midst. The necessity to obtain sanction before prosecuting public servants is to ensure that they are protected from frivolous, vexatious and concocted complaints otherwise it will be difficult for the public servants to discharge their function fearlessly”, the Court noted.

The Court noted that the sanctioning authority's responsibility is only to determine whether there is a prima facie case for committing an offense. The Court observed that the allegations can only be proven beyond a reasonable doubt after the Trial Court has assessed the evidence at the end of the trial. The Court further reiterated that once the competent authority has issued an order under Section 19 of the PC Act, it is not permissible for the sanctioning authority to reconsider the issue on the same grounds. However, the sanctioning authority may reconsider the matter only in light of new evidence.

The Court observed, “It is noteworthy that the sanctioning authority has to only see, whether a prima facie case for commission of offence is made out or not. The allegations can be proved beyond reasonable doubt only after appreciation of evidence by the trial Court at the conclusion of the trial… Even otherwise, it is well settled that once an order has been passed by the competent authority under Section 19 of the PC Act, it is not permissible for the sanctioning authority to review or reconsider the matter on the same material again. However, the matter can be reconsidered by the sanctioning authority only in the light of fresh material”.

The Court observed that government employees' salaries have increased significantly, but corruption persists due to limitless human greed. The social stigma attached to corruption is also decreasing, and the risk of engaging in corrupt practices must be increased as a deterrent. The Court emphasized that corruption seems to be a low-risk, high-profit business, but it must eventually become a low-profit, high-risk venture to be eradicated. A zero-tolerance approach to corruption is critical at this time. The Court observed that it is the solemn duty of courts to uphold the rule of law, and any leniency shown in corruption cases would shake the common man's trust in the rule of law.

The Court held that the order of temporary discharge was not illegal. Nevertheless, the Court directed the State of Punjab to send all documents related to the consideration for granting permission to prosecute to the Central Government. The Court further directed the competent authority to consider the issue and make a final decision in accordance with the law within three months.

Accordingly, the Court disposed of the Petition.

Cause Title: Tulsi Ram Mishra v State of Punjab and others

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