JUDGMENT Vinod Prasad, J.
1. Om Prakash Tripathi, the petitioner, a Regional Employment Officer, Allahabad, has questioned the validity of sanction order No. CM-96/36-5-2007-1(28)/06 dated 28.11.2007 accorded by The Governor, State of Uttar Pradesh, and communicated by the Chief Secretary, by which sanction has been accorded by the sanctioning authority to prosecute the petitioner for offences under Sections 13(1)(d) read with Section 13(2) Prevention Of Corruption Act 1988 (herein after referred to as the 'Act') along with Section 5(1) of Uttar Pradesh (Reservation Of Schedule Caste, Schedule Tribe &Other backward Classes) Act 1994 (U.P. Act No. 4 of 1994) relating to police station cantt/Sadar district Gorakhpur.
2. A resume of background facts resulting in filing of this petition are briefly stated herein after.
The petitioner joined his services as Regional Employment Officer in 1981 and since then he is working on the said post and is presently posted in Allahabad. While he was posted in district Gorakhpur a first information report, annexure No. 1, was registered against him on 24.10.2003, as Crime No. 1619 of 2003 under Sections (13)(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (Act No. 49 of 1988) as well as under Section 5(1) of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes & Other backward Classes) Act 1994, at Police Station Cantt, district Gorakhpur. The charges which were levelled against the petitioner were that in between the period 3.11.1997 to 3.12.1998, he made fifty five appointments of Class III and Class IV employees of sweepers and Chowkidars ignoring provisions of Act No. 4 of 1994 and the instructions issued by the Government and hence all those appointments were illegal and thereby he has committed afore mentioned offences.
3. Aggrieved by the registration of FIR accused petitioner instituted Criminal Misc. Writ Petition No. 8073 of 2003 in this court with the prayer to quash the said FIR with ancillary prayer of stay of his arrest in the said crime number. A division bench of this court while calling for a counter affidavit in that petition stayed the arrest of the petitioner until further orders vide it's order dated 15.12.2003 (annexure No. 2). The aforesaid writ petition preferred by the petitioner was, however, dismissed in default on 6.4.2004 against which a restoration application was filed by the petitioner which is still pending consideration.
4. Interregnum petitioner was suspended on 3.7.2004 in contemplation of a departmental proceeding and Senior Director, (Prashikshan Evem Seva Yojan), Uttar Pradesh, Lucknow was appointed as Enquiry Officer to enquiry into the above charge levelled against the petitioner. By enquiry report dated 19.12.2005 the petitioner was found guilty and he was awarded the punishment of permanent stoppage of his three salary increments with cumulative effect alongwith recording of an adverse entry into his character roll vide annexure No. 3. Attour vide order dated 25.10.2004 an order for realisation of an amount of Rs. 6,62,868, was also passed against the petitioner which amount was illegally paid to the illegally appointed employees to reimburse the State exchequer. The said amount are now being realised in instalments from the petitioner.
5. On the other hand against the terminated Class III and Class IV employees departmental proceedings commenced and a FIR was also lodged. Those employees preferred several Civil Misc. Writ Petitions before this Hon'ble court, the number of some of those writ petitions are Civil Misc. Writ Petition Nos. 5969 of 1999, 5972 of 1999 and 5813 of 1999 etc. The above and the connected writ petitions were allowed by different benches of this court setting aside the termination orders of the petitioners in those writ petitions and directing respondent authorities to pass fresh orders in accordance with law after complying with the principles of natural justice of hearing the employees. The order passed by this Hon'ble Court in one of such writ petition No. 5974 of 1999 dated 26.5.2004 has been appended as annexure -5 to the present writ petition. Inspite of the directions by this court respondent authorities did not pass fresh orders and hence Contempt Petition No. 1688 of 2005 was filed by the employee in the above writ petition. After notices were issued to the respondents they complied with the orders passed by this court and now the terminated employees are allowed to join duties and they are functioning. It is also to be noted here that Special Appeal No. 401 of 2005 has been filed on 30.5.2005 challenging the order dated 26.5.2004 and thus in all the matters there are seven Special Appeals filed and are pending in this court.
6. However, on the FIR of Crime No. 1619 of 2003 investigation was taken up by the Vigilance Department, Gorakhpur which concluded the investigation and finding a prima facie case being disclosed against the petitioner applied for sanction to prosecute him under the aforementioned offences, which sanction, under Section 19 of the Act, was granted vide impugned order dated 28.11.2007 for prosecution for offences under Sections (13)(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 as well as under Section 5(1) of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes & Other backward Classes) Act 1994 (U.P. Act No. 4 of 1994) which order the petitioner received on 26.12.2007, Copy of the impugned sanction order has been appended as annexure -9.
7. On the aforesaid facts we have heard Sri M.D. Singh Shekhar, Senior Advocate and learned A.G.A. for the State for and against this petition.
8. Sri Shekhar in support of the petitioner's case vehemently argued that the impugned sanction order, annexure -9, is a mechanical order without any application of mind and is bereft of the necessary details and therefore it should be quashed. According to him, the sanction order has been passed without looking into the proper papers and the facts of the case or at least the sanction order does not indicate that the sanctioning authority has applied his mind while granting sanction. Sri Shekhar further contended that recovery of Rs. 6 lacs plus had already been ordered which amount is now being deducted from the salary of the petitioner besides order for stoppage of three salary increments with cumulative effect and recording of adverse entry penalties has already been passed against the petitioner and therefore his further prosecution on the same criminal charges is an exercise in malafides and therefore sanction should not have been granted as the petitioner cannot be allowed to suffer three punishments for one and the same charges alongwith his prosecution. Sri Shekhar further based his argument on annexure -7 to canvass that the terminated employees have been re-instated in service and therefore further prosecution of the petitioner will only be his harassment and therefore sanction order be quashed which has been accorded to save the skin of the higher authorities. Learned Counsel concludingly submitted that neither the facts of the case nor the evidence collected during investigation have been cogitated by the sanctioning authority while granting impugned sanction and therefore sanction order is a mechanical one without any application of mind and deserves to be quashed by issuing a writ of certiorari and the present writ petition deserves to be allowed. In support of his case learned Counsel has relied upon two judgments of the apex court in Prakash Singh Badal and Ors. v. State of Punjab and Ors. ; and Mohd. Iqbql Ahmad v. State Of Andhra Pradesh . We will deal with both theses judgments later on.
9. Refuting the arguments of learned Counsel for the petitioner learned A.G.A. contrarily submitted that the sanction order itself indicates that the sanctioning authority has taken into consideration all the aspects of the matter and after considering pros and cons of the prosecution version and the charges levelled against the petitioner and evidences collected for the same that the Governor has granted sanction which order has been communicated to the petitioner through Chief Secretary and therefore, this writ petition is bereft of merit and deserves to be dismissed. In support of his contentions, AGA invited our attention on the impugned sanction order itself. He further contended that whether the sanction has been given after due application of mind or not is a disputed question of fact which has to be adjudicated during the trial after giving full opportunity to the rival sides. According to learned A.G.A. the sanction order need not be an epic order. He further contended that if the perusal of the sanction order indicates that the same has been granted after consideration of the materials supplied to the sanctioning authority then it has to be upheld and therefore there is nothing in this writ petition for this court to interfere in such an administrative exercise by the sanctioning authority. Learned A.G.A. further contended that promiscuously it is perceptible from the impugned sanction order that the same has been granted after due application of mind and the present writ petition being bereft of any merit deserves dismissal.
10. We have considered the arguments raised by both sides and have pondered over the law and facts of the case. The point which has been mooted for our consideration is as to whether impugned sanction order dated 28.11.2007, annexure No. 9, suffers from the vice of non application of mind or not? It is undisputed that power to grant sanction is vested in the appointing authority or an authority superior to it and grant of sanction is an administrative exercise undertaken by it. Grant of sanction is not an empty formality. Indispensable legal requirements for grant of sanction, which lifts the veil from prosecution of the delinquent employee, are that the act complained of must have done in the discharge of official duty with the ambit of legal power and must have been performed in the official capacity. The requirement of grant of sanction has been incorporated in the statute books to protect the government servants from being maliciously prosecuted with the salutary object that they should not be under any fear while discharging their responsibilities in accordance with law within the purview of their powers. So long as a government servant acts in accordance with the provisions of law in discharging his official duties within the ambit of his powers, he should not be prosecuted unless the sanction is granted. Thus the scheme of grant of pre prosecution sanction has been enacted to repose confidence in the minds of government servants that if they are discharging their responsibilities within the area of their office in consonance with law and power they will not be harassed through malicious prosecution.
11. From the above point of view when we examine the case of the petitioner and critically examine impugned sanction order, we find that the sanction order clearly indicates that the sanctioning authority had applied his mind on the facts placed before him and it was only after due application of mind that he has granted the sanction. The opening paragraph of the sanction order clearly indicates that the petitioner had flouted the government order dated 20.8.1991 and 11.3.1997 while posted as Regional Employment Officer district Gorakhpur and in between the period from 3.11.1997 to 31.12.1998, on his whims, has made appointments ignoring the procedure for selection and has illegally appointed 55 persons in class III and IV posts of peons and Chowkidars. It is further recorded their in that in payment of salaries to those illegally appointed employees, the State exchequer was relieved of Rs. 6,62,868. It further records that prima facie, therefore, the petitioner is guilty of offence under Section (13)(1)(d) readwith Section 13(2) of the Prevention of Corruption Act, 1988 (Act No. 49 of 1988) as well as under Section 5(1) of U.P. Public Services (Reservation For Scheduled Castes, Scheduled Tribes & Other backward Classes) Act 1994 (U.P. Act No. 4 of 1994). It is also mentioned in the sanction order that the investigation into the aforesaid offences was carried out by the Vigilance Department, Gorakhpur. In paragraph 2 of the sanction order, it is mentioned that on the basis of various facts and evidence collected, those offences which are mentioned above are perceptibly, prima facie, made out against the petitioner. In paragraph 3 of the sanction order it is mentioned that the material produced has been carefully scanned and after looking into the surrounding circumstances and the facts of the case, sanctioning authority is satisfied and has reached the conclusion that a prosecution be instituted against the petitioner (O.P. Singh) for committing the aforementioned offences in a proper court. After mentioning the aforesaid fact that it is mentioned in paragraph 4 of the sanction order that the Governor is pleased to accord sanction for the prosecution of the petitioner for the offences referred to above.
12. Thus, it is perceptibly clear from the above narration of facts that the sanctioning authority before according sanction has looked into the evidences and materials collected by the Vigilance Department and has considered the surrounding circumstances and facts of the case and only then has granted sanction. In such a view, the contention of learned Senior Counsel for the petitioner that the sanction order suffers from the vice of non application of mind cannot be accepted on the face of it. It is not the law that the sanction order has to be pen down in great detail mentioning all the evidences collected by the investigating agency. A sanction order need not to be a detailed one. It is sufficient if from a bare perusal of the sanction order it transpires that the sanctioning authority has applied his mind on the materials produced before him and has then granted the sanction which is the case before us.
13. Now coming to the two judgments of the Apex Court relied upon by the learned senior Counsel for the petitioner. Coming the first judgment of Prakash Singh Badal's case (Supra) we have carefully scanned it. Not to go into the details, we say that the aforesaid judgment is of no help to the petitioner. No where in the said judgment it is averred that the sanction order must be a detailed one. What has been held in the aforesaid judgment is that the sanctioning authority who is entitled to grant sanction must apply his mind to the facts of the case, evidence collected and other incidental facts before according sanction. Learned Counsel has relied upon the following observations of the apex court:
grant of sanction is not an idle formality but a solemn and sacrosanct act which removes the umbrella of protection of of government servants against frivolous prosecutions and the aforesaid requirements must therefore be strictly complied with before any prosecution could be launched against public servants.
14. However the aforesaid observation of the apex court as is mentioned in paragraph 16 has to be read in conjunction with paragraph 46 to 48 of the said judgment wherein it has been observed by the apex court as follows:
46. It is the stand of the State that the appellant Prakash Singh Badal was the fulcrum around which the entire corruption was woven by the members of his family and others and it was his office of Chief Ministereship which had been abused. Therefore, Sections 8 and 9 of the Act would not be applicable to him and would apply only to his wife, son and others. It is the stand of the appellants that in the documents filed only Section 13(1) has been mentioned and not the exact alleged infraction. It is to be noted that the offence of criminal misconduct is defined in Section 13. Five Clauses contained in the said provision represent different types of infraction under which the offence can be said to have been committed. If there is material to show that the alleged offence falls in any of the aforesaid categories, it is not necessary at the stage of filing of the charge-sheet to specify as to which particular Clause covers the alleged offence. It is the stand of the respondent State that Clauses (a), (b), (d) and (e) are all attracted and not Clause (c). Therefore, the sanctioning authority has rightly referred to Section 13(1) and that does not make the sanction order vulnerable.
47. The sanctioning authority is not required to separately specify each of the offences against the accused public servant. This is required to be done at the stage of framing of charge. Law requires that before the sanctioning authority materials must be placed so that the sanctioning authority can apply his mind and take a decision. Whether there is an application of mind or not would depend on the facts and circumstances of each case and there cannot be any generalised guidelines in that regard.
48. The sanction in the instant case related to the offences relatable to the Act. There is a distinction between the absence of sanction and the alleged invalidity on account of non-application of mind. The former question can be agitated at the threshold but the later is a question which has to be raised during trial.
15. The above observation of the Apex Court makes it clear that while granting sanction, application of mind is a question of fact which is to be proved. Without affording an opportunity to the sanctioning authority, it cannot be said that he has not applied his mind while passing sanction order . Before an authority who is charged with a statutory responsibility is alleged to have defaulted in discharging his said responsibility, he must be afforded an opportunity in accordance with the basic principle of law of natural justice. In slipshod manner, on an affidavit, a finding cannot be recorded that the sanctioning authority (in the present case the Governor of Uttar Pradesh) has not applied his mind when the sanction order itself clearly indicates otherwise.
16. In view of the aforesaid discussion, the aforesaid ruling of Prakash Singh Badal's case (supra) is of no help to the petitioner.
Coming to the second judgment of the Apex Court in Mohd. Iqbal Ahmad (supra) we only observe this much that the said judgment is wholly out of context. That was a case where after full trial, in which both the sides were afforded complete opportunity to lead evidence, that the matter had reached the apex court. It was not a case which was decided by the Apex Court at the very inception of the prosecution and, therefore, we are of the opinion that the said judgment also can not rescue the petitioner.
17. The notable feature of the present case is that the petitioner has prayed for quashing of the sanction order at its very inception. No prosecution of a public servant can be quashed on the ground that the sanction order is not a detailed one. It is not the requirement of law that the sanction should be accorded by mentioning all the necessary evidence and the detailed facts. Sine- qua-non for grant of sanction is placement of complete material before the sanctioning authority against the delinquent accused for his consideration and it should be perceptibly clear from the sanction order, on the face of it that the sanctioning authority has taken into consideration those materials.
18. In view of what we have stated above and from the materials and the arguments placed before us, we are of the opinion that no exception can be taken to the impugned sanction order which in our view does not suffer from any infirmity of law and illegality.
The present writ petition is bereft of merit and is hereby dismissed.