K.S DHARMADATAN versus CENTRAL GOVERNMENT AND ORS.

K. S. DHARMADATAN

CENTRAL GOVERNMENT AND ORS.

May 1, 1979

[S. MURTAZA FAZAL ALI AND P. S. KAILASAM, JJ.]

Prevention of Corruption Act, 1947, Section 6 scope of-Whether sanction of competent authority is necessary for prosecution when in fact on the said date the employee was out of service, but on appeal in departmental enquiry, he is ordered to be reinstated with retrospective efject--Construction of deeming -provision.

The appellant was being prosecuted for offences under sections 120-B, 420, 471 and 468 read with section 34 I P.C., Section 167 (72) of the Sea Customs Act and Section 5(2) read with section 5(l)(d) of the Prevention of Corrup-tion Act 1947. At the time when the charge sheet was filed and the special judge took cognizance agains.t th'e appellant sometime in October, 1970, the appellant ceased to be public servant and, therefore, no sanction under Section 6 of the Prevention of Corruption Act, 1947 was obtained. The depa.rtmental enquiry against th'e appellant ended in his dismissal but the President of India allowed his appeal ailld set aside the order of removal from service passed by the Collector of Customs against him with directiolli'! to treat the period of absence from 5-9-1967 till the date of reinstatement as und'er suspension, and to institute de novo proceedings against the appellant after rectifying the defect in the charge sheet.

While the departmental proceedings were going on, the trial against the appeliant proceeded to its logical end except the arguments being heard. The appellant on being reinstated filed an application before the special Judge pray-ing that all furth'er proceedings be dropped as the prosecution against the appel-lant was initiated in the absence of proper and valid sanction haivi'=lg been obtained under Section 6 of the Prevention of Corruption Act. The special Judge rejected it and the High Court confirm'ed' the rejection.

Dismissing the appeal by special leave, the Court

HELD : 1. Section 6(1) of the Prevention of Corruption Act, 1947 applies only where at the time wh'en the offence WM committed the offender was acting as public servant. If the offender had ceased to b'e public servant then section 6 would have no application at aU. Furthermore, the point of time when the sanction has to be tc..ken must be the time when the Court takes cognizance of an offence and not before or after. If at the relevant time, the offender was public servant no sanction under section 6 was necessary at alI. [835E-FJ

In the instant case, no sanction under section 6 of the Act was n'ecessary, as the appellant had ceased to be public servant at the time when the cogniz~ ance of the case was taken against him by the special Judge. [836E]

S. A. Venkataraman v. The State, [1958] SCR 1037; C. R. Bansi v. State of Maharashtra, [1971] 3 SCR 236 followed.

2. deeming provision cannot be pushed too far as to result in mof.t anamolous or absurd position. deeming provision should be confined only for the purpose for it is meant. [837C, 838A]

Commissioner of Sales Tax, U.P. v. The Modi Sugar Mills Ltd., [1961] 2 SCR 189; Braithwaite & ·co. India Ltd. v. Employees' State Insurance Corpo-ration, [1968] 1 SCR.771; Bengal Immunity Co. Ltd. v. State of Bihar and Ors., (1955] 2 S.C.R. 603; Commissioner of Income Tax, Bombay City v. Elphinstone Spinning and JVeaving Mills Co. Ltd., 40 I.T.R. 142; applied.

3. In the instant case :

(a) Th'e order of the Pre&ident reinstating the appellant and creating legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension were concen.1ed and could not be carried too far as to project it even in cases where actions had already been taken [838A-B]

(b) Th'e dismissal was not nullity so as to vitiate all proceedings. The order passed by the President was not an order on merits. It was merely an order passed by the President in an appeal M departmental enquiry and the '3:ppellant succ~eded because of manifest defect in the charge sheet. The President n'ever intended that the appellant should be deemed to have been reinstated even for the purpose of section 6 of the POCA, 1947 so as to nullify acticns completed, consequences ensued or transactions closed. In fact when the President observed that the appellant shall b'e deemed to have been placed under suspension from the date of the original order of dismissal it merely meant that for the purpose of certain civil consequences flowing from the order of the President namely the grant of subsistence allowa!lce or other benefits the order would be deemed to be retroactive in character. [837A-C]

(c) At the time when actual cognizance by the Court was taken the appel~ lant ceased to be public serva.nt having be'en removed from service. If some years later h'e had be£.n reinstated that would not make the cognizance which was validly taken by the Court in October, 1970, nullity or render it nuga-1ory, so 26 to necessitate the taking of fresh sanction. [838B-C]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 362 of 1975. ' 1 < i

Appeal by Special Leave from the Judgment and Order dated the 1 lth July, 1975 of the Kerala High Court in Criminal Revision Petition No. 73 of 1975.

S. Govind Swaminadhan, E. V. Rangam and N. S. Sivam for the Appellant.

Soli J. Sorabjee, Add!. Sol. Genl. of India, R. N. Sachthey and E. C. Aga1wala for the Respondent.

The Judgment of the Court was delivered by

FAZAL ALI, J.-This appeal by special leave is directed against the judgment and order of the High Court of Kerala dated lilth July, 1975

dismissing criminal revision petition filed by the appellant before the High Court.

The point involved in the present appeal lies within very narrow compass. The appellant was being prosecuted for offences under sec-tions 120-B, 420, 471 and 468 read with section 34 I.P.C., section 167 (72) of the Sea Customs Act and section 5 (2) read with section 5(1 )(d} of the Prevention of Corrnption Act. At the time when the charge-sheet was filed and the Special Judge took cognizance against the appel-lant sometime in October, 1970 the appellant ceased to be public ser-vant and, therefore, no sanction under section 6 of the Prevention of 0Jrruption Act (herein>after referred to as the Act) was obtained It appears that in pursuance of departmental enquiry held against the appellant he was charge-sheeted and ultimately dismissed by the appoint-ing authority. Thereafter, the appellant filed an appeal before the President of India on 18-10-1967 against his removal from service. After comuiting the Union Public Service Commission the President by his order dated 25-9-1972 allowed the appeal and set aside the order of removal from service passed by the Collector of Customs against '.he appellant. The order of the President further directed that the period of absence from 5-9-1967 till the date of reinstatement was to be treated as under suspension. The appeal appears to have been allowed by the President mainly on the gmund that there was some defect in the )'.'.harge-sheet served by the disciplinary authority. The disciplinary authority was directed to institute de nova proceedings against the ap-pellant after rectifying the defect in the charge-sheet. While these pro-ceedings before the President were going on, the trial against the ap-pellant proceeded to its logical end and we now understand that evi-dence has already been led and the arguments have to be heard.

The appellant on being reinstated by the President filed an applica-tion before the special Judge praying that all further proceedings be dropped inasmuch as the prosecution against the appellant was initiated in the absence of proper and valid sanction having been obtained under section 6 of the Act. The special Judge, however, rejected the petition as result of which the appellant moved the High Court but was not successful there.

The only point raised by the appellant before the High Court a's also before us was that in view of the order of the President reinstating the appellant retrospectively, the appellant must be deemed to be in service with effect from the date from which the departmental proceed-ings were started against him, and, therefore, he would be public ser-vant at the· time when cognizance was taken by the special Judge, and

as no sanction under section 6 of the Act WaS obtained, the entire pro-. ceedings became void abinitio. Mr. Sorabjee appearing for the res-pondents has submitted that admittedly aud factually at the point of time when the special Judge took cognizance of the case on 14-10-1970 the appellant having been dismissed from service was no longer public servant, and, therefore, section 6 of the Act had no application. Sec-tion 6 of the Act runs .thu·s :-

"6( 1) No court shall take cognizance of an offence punish-able under section 161 or section 164 or section 165 of the Indian Penal Code, or under sub-section (2) or sub-section (3A) of section 5 of this Act, alleged to have been committed by public servant, except with the previous sanction.

(a) in the case of person who is employed in connec-tion with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government or of the Central Government;

(b) in the case of person who is employed in connection with the affairs of State and is not removable from his office save by or with the sanction of the; Central Government or of the State Government;

( c) in the case of any other person, of .the authority com-petent to remove him from his office."

perusal of this section would clearly disclose that the section applies only where at the time when the offence was committed the offender was acting as public servant. If the offender had ceased to be public servant then section 6 would have no applicat10n at all. Further more, it is also manifest from the perusal of section 6 that the point of time when the sanction has to be taken must be the time when the court takes cognizance of an offence and not before or after. If at the relevant time, as indicated above, the offender was not public ser-vant no sanction nn4er section 6 was necessary at all.

Construing section 6 of the Act this Court in the case of S. A. Venkataraman v. The State(') pointed out as follows:-

"When the provisions of s. 6 of the Act are examined it is manifest that the two conditions must be fulfilled before its provisions become applicable. One is that the offences men-tioned therein must be committed by public servant and the other 1s that that person is employed in connection with the affairs of the Union or State and is not removable from his

1) [1958] S.C.R. 1037.

office save by or with the sanction of the Central Government or the State Government or is public servant who is remova-ble from his office by any other competent authority. Both these conditions must be present to prevent court from tak-ing cognizance of an offence mentioned in the section with-out the previous sanction of the Central Government or the State Government or the authority competent to remove the public servant from his office. If either of these conditions is lacking, the essential requirements of the section are wanting and the provisions of the section do not stand in the way of court taking cognizance without a. previous sanction ..... . ........... Conversely, if an offence under s. 161 of the Indian Penal Code was committed by public servant, but, at the time court was asked to take cognizance of the offence, that person had ceased to be public servant one of the two requirements to make s. 6 of the Act applicable would be lacking and previous sanction would be unnecessary. The words in s. 6 (1) of the Act are clear enough and they must be given eff<.tt to".

To the same effect is later decision of this Court in the ca.e of C. R. Bansi v. State of Maharashtra(')

In view of the observations referred to above, it is manifest that as the appellant had ceased to be public servant at the time when the cognizance of the mse was taken against him by the Special Judge no sanction under section 6 of the Act was necessary.

It was, however, argued by Mr. Swaminadhan, learned counsel for the appellant that the logical consequence of the order of the President reinstating the appellant was that he would be deemed to have been put 'rack into service on the date the charge-sheet was submitted againsr him, and, therefore, he must be deemed to be public servant within the meaning of section 6 of the Act. In other words, the learned counsel wanted us to import legal fiction arising from the Presidential order by which even though factually the appellant may not have been public servant at the time when the cognizance was taken, he would be deemed to be so by virtue of the Presidential order even though the Presidential order may have been passed years after the cognizance was taken. We are however unable to agree with the somewhat broad arguments advanced by the learned counsel for the appellant.

(I) [19711 3 S.C.R. 236.

To begin with, the dismissal of the appellant was not nullity so as to vitiate all proceedings previous or subsequent. It was merely an order passed by the President iu an appeal and the appellant succeeded because of manifest defect in the charge-sheet. The mder passed by the President was therefore not an order on merits. There is nothing to show that the President ever intended that the appellant should be deemed to have been reinstated even for the purpose of section 6 of the Act so as to nullify actions completed, consequences ensued or trans• actions closed. In fact, when the President observed that the appellant shall be deemed to have been placed under suspension from the date of the original order of dismissal it merely meant that for the purpose of certain civil con·sequences flowing from the order of the President, .namely, the grant of subsistence allowance or other benefits the order would be deemed to be retroactive in character. It is well settled that deeming provision cannot be pushed too far so as to result in most anamolous or absurd position.

In the case of Commissioner of Sales Tax, Uttar Pradesh v. TM Modi Sugar Mills Ltd.(') while laying down the principles on the basis of which deeming provision should be construed this Court observed as follows :-

"A legal fiction must be limited to the purpose·s for which it has been created and cannot be extended beyond its legitimate field".

Similarly in the case of Braithwaite & Co. (India) Ltd. v. Emplo-yees' State Insurance Corporation(') this Court further amplifying the principle of the construction of deeming provision observed thus :-

"A legal fiction is adopted -in law for limited and definite' purpose only and there is no justification for extending it be-yond the purpose for which the legislature adopted''.

In the Bengal Immunity Co.1Ltd. v. State of Bihar and Ors.(•) this Court pointed out that "explanation should be limited to the purpose the Constitution-makers had and legal fictions are created only for some definite purpose''.

In the case of Commissioner of Income Tax Bombay City v. Elphins~ tone Spinning and Weaving Mills Co. Ltd.(') this court observed as follows :-

(!) [1961] 2 S.C.R. 189. (2) [1968] I S.C.R. 771. (3) [1955] 2 S.C.R. 603. 4) 40 I.T.R. 142.

"As we have already stated, this fiction cannot be carried further than what it is intended for".

Thus, it is well settled that deeming fiction should be confined only for the purpose for it is meant. In the instant case, the order of the President reinstating the appellant and creating legal fiction regarding the period of ·suspension mnst be limited only so far as the period of and the incidents of suspension were concerned and could not be carried too far so as to project it even in cases where actions had already b~en taken and closed. In other words, the position seems to be that at the time when actual cognizance by the court was taken the appellant had ceased to be public servant having been removed from service'. If some years later he had been reinstated that would not make the cognizance which was validly taken by the court in October, 1970 nullity or render it nugatory so as to necessitate the taking of fresh sanction. We, there-fore, entirely agree with the view taken by the High Court that in the facts and circumstances of the present case legal fiction arising out of the Presidential Order cannot be carried to nullify the order of cogni-zance taken by the special Judge. The argument of the learned coun-sel for the appellant is, thernfore, overruled. No other point was pressed before us. The appeal being without merit is accordingly dis-missed. The special Judge would now hear the arguments of the parties and dispose of the case as expeditiously as possible. Let the re-cords be sent back to the special Judge immediately.

Appeal dismissed.

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