THE HON’BLE SRI JUSTICE K.C.BHANU WRIT PETITION No. 15542 of 2011 ORDER : 1. This Writ Petition is filed seeking to declare G.O.Ms.No.43, Animal Husbandry Dairy Development and Fisheries (VS.2) Department, dated 19.05.2011, according sanction for prosecution of the petitioner for the offences punishable under Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 as illegal, arbitrary and without authority. 2. The averments, in brief, stated in the affidavit filed in support of this Writ Petition may be stated as follows. The petitioner was appointed as Civil Supervisor in Andhra Pradesh Fisheries Corporation Limited in December, 1978, got promoted as Deputy Executive Engineer and thereafter as Executive Engineer in the year 1993 and shifted to Fisheries Department on deputation in the year 1995. He married Smt. Venkata Krishna Bhavani, who is only daughter of Sri T.Gangaraju, a landlord, in the year 1983. His father-in-law purchased properties in the name of his daughter on love and affection. Anti Corruption Bureau (ACB.) registered a case against him by showing excess value of the properties. When the petitioner was placed under suspension in exercise of powers conferred by Rule 8 (1) of the Andhra Pradesh Civil Services (Classification, Control and Appeal) Rules, 1991 (for short, ‘CCA Rules’), he filed Writ Petition No.14942 of 2003, and by judgment dated 12.8.2003, a Division Bench of this Court held that the Government has no jurisdiction to place the petitioner under suspension, and no appeal or review has been filed against the said judgment. Writ Petition No.17537 of 2009 filed by the petitioner challenging G.O.Ms.No.122, AHDD & F Department, dated 17.12.2008 keeping him under suspension, was allowed by judgment dated 4.11.2009. Against the said judgment, the Government filed Writ Appeal No.1470 of 2009, wherein interim suspension was granted. Against G.O.Ms.No.116, AH & Fisheries Department, dated 28.10.1998, repatriating the petitioner to A.P. Fisheries Corporation Limited, the petitioner filed O.A.528 of 2001, Writ Petition NO.18886 of 2001 and finally Civil Appeal Nos. 2605 to 2607 of 2003, which were dismissed, and therefore it attained finality. Apprehending his repatriation to his parent department, which is under liquidation, as per the said G.O., the petitioner filed Writ Petition No.3824 of 2010, wherein this Court vide order dated 15.6.2010 directed the respondents to obtain suitable orders in the Writ Appeal said to be pending, if they want to repatriate the petitioner to the Corporation during pendency of departmental proceedings against him. The Government filed Writ Appeal No.73 of 2011 against the order in Writ Appeal No.3824 of 2010, wherein the operation of the impugned order was stayed. Thus, the repatriation of the petitioner ordered in G.O.Ms.No.116, dated 28.10.1998, which attained finality, remained in tact, subject to outcome of Writ Appeal No.73 of 2011, and the suspension of the petitioner vide G.O.Ms. NO.122, dated 17.12.2008 is also intact, subject to outcome of Writ Appeal No.1470 of 2009. In so far the repatriation of the petitioner is concerned, as recorded in judgment in Writ Petition No.17537 of 2009, the learned Advocate General, inter alia, raised a contention that since the Corporation is wound up, service regulations of the Corporation are no more existing. Thereafter, the first respondent issued G.O.Ms.No.43, Animal Husbandry Dairy Development and Fisheries (V.S.2) Department, dated 19.05.2011 according sanction to prosecute the petitioner for the offences punishable under Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988, which is illegal, arbitrary and without authority or jurisdiction. Hence, the Writ Petition. 3. The respondents 1 and 2 filed counter affidavit denying the allegations made in the writ affidavit and stating, inter alia, as follows: The sanction accorded by the Government is proper and legally valid as the petitioner had been discharging public duty in connection with the affairs of the State of Andhra Pradesh and drawing salary from the Government, and that he comes within the ambit of definition of ‘public servant’ under Section 2(c) of the Prevention of Corruption Act, 1988. Since the petitioner worked as Executive Engineer on deputation in Government Department, the Government has power to accord sanction for his prosecution. Basically the petitioner is an employee of the Andhra Pradesh Fisheries Corporation Limited and he was taken on deputation from 1995 and working in the Department since then. As per Rue 31 of CCA Rules, the borrowing authority has power to suspend employees and intimate the lending authority regarding misconduct committed by the said employee. ACB registered case in crime no.17 of 1998 for the offences punishable under Section 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 against the petitioner and he was suspended vide order dated 10.08.2002. The petitioner challenged the said order in Writ Petition No.15266 of 2002 on the ground that the Government has no power to suspend him under the CCA Rules, but the said Writ Petition was dismissed by this Court vide order dated 28.1.2003 holding that the Government has competency and power to suspend him under Rule 8 read with 31 of the CCA Rules. Later, in another disciplinary proceedings in respect of manhandling of tenders for the landing centres by the Engineering Wing in the office of the Commissioner of Fisheries, Andhra Pradesh, the petitioner was placed under suspension pending enquiry vide G.O.Ms.No.26, dated 27.03.2003. He filed Writ Petition 5479 of 2003 challenging the said order, and the same was dismissed by this Court. Again, he filed O.A. No.2974 of 2003 before the Andhra Pradesh Administrative Tribunal challenging the above Government Order and the same was disposed of by the Tribunal. He filed Writ Petition No.4942 of 2003 which was allowed by this Court holding that the Government has no jurisdiction to place him under suspension, and so, he was reinstated into service. On 30.12.2008, another case for the offences punishable under Section 13 (1) (e) read with 13 (2) of the Prevention of Corruption Act, 1988 was registered against the petitioner and he was suspended vide G.O. Ms. No.122, dated 17.12.2008, which was set aside by the High Court in Writ Petition No.17537 of 2009, dated 4.11.2009 following the above order of the Division Bench of this Court. Against the said order, Government filed Writ Appeal No.1470 of 2009 wherein the said order was suspended by a Division Bench, as a result, the suspension order passed by the Government is still subsisting. ACB officials had taken into consideration the explanation offered by the petitioner and the same was considered vis-à-vis the material gathered during the course of investigation. The petitioner, having agitated before various forums opposing his repatriation to the Corporation, while coming to his suspension, he is trying to misrepresent that since he belongs to the Corporation, he cannot be suspended. The ultimate aim of the petitioner in approaching the Courts at every stage is to see that somehow the proceedings against him are stalled. This case involves huge magnitude and scale of the irregularities as also several properties and wealth amassed and acquired by the petitioner during the course of his employment with the Government of Andhra Pradesh and also public interest. The Government has power and authority to issue the impugned Government Order according sanction for prosecution of the petitioner. Hence, the Writ Petition. 4. The learned counsel for the petitioner contended that the petitioner is only removable by the Board of Governors of Andhra Pradesh Fisheries Corporation Limited, and so, giving of sanction for his prosecution by the first respondent vide the impugned Government Order, is illegal; that when the petitioner sought to be absorbed in the government service, his request was not considered by the Government, and that on the earlier occasion, when the petitioner was suspended, a Division Bench of this Court in Writ Petition No.14942 of 2003 held that the Government has no jurisdiction to place the petitioner under suspension by virtue of Rule 3 (c) of the CCA Rules and consequently Rule 31 of the CCA Rules will not apply to the facts of the present case and such is the case, the Government has no authority to give sanction to prosecute the petitioner. Hence, he prays to quash the impugned Government Order. 5. On the other hand, the learned Government Pleader appearing for the respondents 1 and 2 contended that since the petitioner committed the offence while discharging his duties as Executive Engineer with the Government Department, the first respondent rightly gave sanction to prosecute the petitioner exercising its power under Section 19 (1) (b) of the Prevention of Corruption Act, 1988, and therefore the impugned sanction order does not suffer from any infirmities so as to call for interference by this court. 6. It is not in dispute that initially the petitioner was appointed as Civil Supervisor in Andhra Pradesh Fisheries Corporation Limited. He was promoted as Deputy Executive Engineer in the year 1989 and thereafter as Executive Engineer in the year 1992. It is not in dispute that as per G.O. Ms. No.174, Animal Husbandry and Fisheries (Fish.1) Department, dated 1.11.1994 read with G.O. Ms. No.153, dated 8.12.1995, the petitioner was deputed to the Department of Fisheries, Government of Andhra Pradesh for a period of three years and was posted as Executive Engineer, State Project Unit World Bank Aided Project at Kakinada. It is alleged that at the time he was holding the post of Executive Engineer, he alleged to have acquired assets disproportionate to his known sources of income. ACB registered a case in crime no.20/RCA-RJY/2008 for the offences under Sections 13 (2) read with 13 (1) (e) of the Prevention of Corruption Act, 1988 against the petitioner on 11.12.2008. After obtaining necessary search warrant from the competent court, the ACB officials conducted simultaneous searches on the residential houses and office of the petitioner and seized several incriminating material with regard to his assets, income and expenditure. Thereafter, the ACB officials sought sanction from the Government to prosecute the petitioner, and the first respondent, vide the impugned G.O. Ms. No.43, dated 19.5.2011, gave sanction order to prosecute the petitioner by virtue of clause (b) of sub-section (1) of Section 19 of the Prevention of Corruption Act, 1988. Challenging the said sanction, the present Writ Petition is filed. 7. It is not in dispute that the petitioner, formerly Executive Engineer, office of the Commissioner of Fisheries, Fisheries Department, Government of Andhra Pradesh, was allegedly found in possession of assets worth Rs.7,62,31,767/- during the check period in his name and in the name of his family members. So, from the record, it is clear that the petitioner was working as an Executive Engineer in the Government Department during the check period. The contention of the learned counsel for the petitioner is that since the petitioner was removable by the Board of Governors of the Andhra Pradesh Fisheries Corporation Limited, the Government has no power to accord sanction to prosecute him. He placed strong reliance on a decision in R.R.Chari v. State of Uttar Pradesh[1], wherein it is held thus: (para 21) “It would be noticed that the scheme of this section is different from that of S. 197 of the Code of Criminal Procedure. The requirement of the first part of S. 197(1) which constitutes a sort of preamble to the provisions of S. 197(1)(a) and (b) respectively, has been introduced by S. 6 severally in cls. (a) and (b). In other words, under cls. (a) and (b) of S. 197(1) the authority competent to grant the sanction is determined only by reference to one test and that is the test provided by "the affairs in connection with which the public servant is employed" if the said affairs are the affairs of the Federations, the Governor-General grants the sanction; if the said affairs are affairs of a Province, the Governor grants the sanction. That is the position under S. 197 (1) as it then stood. The position under S. 6 of the Prevention of Corruption Act is substantially different, Clauses (a) and (b) of this section deal with persons permanently employed in connection with the affairs of the Federation or in connection with the affairs of the Province respectively, and in regard to them, the appropriate authorities are the Central Government and the Provincial Government. The case of a public servant whose services are loaned by one Government to the other, does not fall either under cl. (a) or under cl. (b) but it falls under cl. (c). Having regard to the scheme of the three clauses of S. 6, it is difficult to construe the word "employed" in cls. (a) and (b) as meaning 'employed for the time being". The said words, in the context, must mean "permanetely employed". It is not disputed that if the services of a public servant permanently employed by a Provincial Government are loaned to the Central Govt., the authority to remove such public servant from office would not be the borrowing Government but the loaning Government which is the provincial Government, and so, there can be no doubt that the employment referred to in cls. (a) and (b) must mean the employment of a permanent character and would not include the ad hoc or temporary employment of an officer whose services have been loaned by one Government to the other. Therefore, the appellant's case for the purpose of sanction under S. 6 will fall under cl. (c) and that inevitably means that it is only the Provincial Government of Assam which would have given a valid sanction under S. 6. At the relevant time, S. 6 had come into operation, and S. 6 expressly bars the cognizance of offences under S. 161 unless a valid sanction had been obtained as required by it. Therefore, in the absence of a valid sanction, the charge against the appellant under S. 161 and S. 165 could not have been tried and that renders the proceedings against the appellant in respect of those two charges without jurisdiction.” The word ‘employed’ referred to in clauses (a) and (b) of Section 6 of 1947 was construed as ‘permanently employed’ and would not include adhoc or temporary employment of an officer. The word ‘office’ in the same clauses is not fallen for consideration before the Hon’ble Supreme Court. Further, the appellant therein is permanent employee of the Government of Assam. His services were lent to Government of India. While working in Central Government, the appellant therein allegedly committed the offences under Section 6 of 1947 Act. In those circumstances, it was held by Supreme Court that the case of a public servant whose services are loaned by one Government to the other does not fall under clause (a) or under clause (b), but it falls under clause (c). In the present case, deputation from Corporation completely owned and controlled by the Government of Andhra Pradesh to the Government department of Andhra Pradesh. Hence, the above decision has no application to the present facts of the case. 8. Section 19 (1) (b) of the Prevention of Corruption Act, 1988 reads thus: “No Court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction – (a) …. (b) in case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government. (c) …” Admittedly, the petitioner was holding the office of the Executive Engineer in the Government Department at the time of committing certain offences under the Prevention of Corruption Act, 1988. From the above provision, it is clear that in case of a person, who is employed in connection with the affairs of the State and is not removable from his office save by or with the sanction of the State Government, no court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 of the Act except with the previous sanction of that Government. It is not in dispute that the petitioner was employed in connection with the affairs of the State because the Andhra Pradesh Fisheries Corporation Limited is completely controlled and owned by the Government of Andhra Pradesh. Though he can be removable by the Board of Governors of the Fisheries Corporation, in case of misconduct, at the same time, the alleged offence under the provisions of the Prevention of Corruption Act, 1988 was alleged to have committed by him while he was discharging his official duties as Executive Engineer of the Fisheries Department, which is admittedly a Government Department of the State of Andhra Pradesh. At the time of committing the alleged offence, the petitioner was holding the office of the Executive Engineer. It is not in dispute that the Executive Engineer of Fisheries Department of Government of Andhra Pradesh can only be removable by the Government of Andhra Pradesh. Therefore, clause (c) of sub-section (1) of Section 19 of the Prevention of Corruption Act, 1988 is not relevant for the purpose of deciding that the Board of Governors are competent to remove him from his office. Clause (c) comes into play only when the offence was committed by any person as a holder of office in any capacity in the Fisheries Corporation. 9. On this aspect, it is pertinent to refer to a decision in R.S. Nayak v. A.R. Antulay,[2] wherein it is held thus: (paras 25 and 26) “Support was sought to be drawn for the submission from the decision of the Andhra Pradesh High Court in Air Commodore Kailash Chand v. The State (S.P.E., Hyderabad, (1973) 2 Andh WR 263) and the affirmance of that decision by this Court in The State (S. P. E., Hyderabad) v. Air Commodore Kailash Chand, (1980) 2 SCR 697 : (AIR 1980 SC 522). In that cast accused Kailash Chand was a member of the Indian Air Force having entered the service on 17/11/1941. He retired from the service on 15/06/1965, but was re- employed for a period of 2 years with effect from 16/06/1965. On 7/09/1966, the respondent was transferred to the Regular Air Force Reserve with effect from 16/06/1965 to Ju 15/06/1970 i.e. for a period of 5 years. On 13/03/1968, the re-employment given to the respondent ceased and his service was terminated with effect from 1/04/1969. A charge-sheet was submitted against him for having committed an offence under S. 5 (2) of the Prevention of Corruption Act, 1947 during the period 29/03/1965 to Mar 16/03/1967. A contention was raised on behalf of the accused that the Court could not take cognizance of the offence is the absence of a valid sanction of the authority competent to remove him from the office held by him as a public servant. The learned Special Judge negatived the contention. In the revision petition filed by the accused in the High Court, the learned single Judge held that on the date of taking cognizance of the offence, the accused was a member of the Regular Air Force Reserve set up under the Reserve and Auxiliary Air Force, 1952 and the rules made thereunder. Accordingly, it was held that a sanction to prosecute him was necessary and in the absence of which the Court could not take cognizance of the offences and the prosecution was quashed. In the appeal by certificate, this Court upheld the decision of the High Court. This Court held following the decision in S. A. Venkataraman's case (AIR 1959 SC 107) that if the public servant had ceased to be a public servant at the time of taking cognizance of the offence, S. 6 is not attracted. Thereafter the Court proceeded to examine whether the accused was a public servant on the date when the Court took cognizance of the offence and concluded that once the accused was transferred to the Auxiliary Air Force, be retained, his character as a public servant because he was required to undergo training and to be called up for service as and when required. The Court further held that as such the accused was a public servant as an active member of the Indian Air Force and a sanction to prosecute him under Section 6 was necessary. This decision is of no assistance for the obvious reason that nowhere it was contended before the Court, which office was alleged to have been abused by the accused and whether the two offices were separate and distinct. It is not made clear whether the accused continued to hold the office which was alleged to have been abused or misused even at the time of taking cognizance of' the offence. But that could not be so because the service of the accused was terminated on 1/04/1968 while the cognizance was sought to be taken in June, 1969. Indisputably, the accused had ceased to hold that office as public servant which he was alleged to have misused or abused. The Court was however, not invited to consider the contention canvassed before us. Nor was the Court informed specifically whether the subsequent office held by the accused in that case was the same from which his service was terminated meaning thereby be was re- employed to the same office. The decision appears to proceed on the facts of the case. We would however, like to make it abundantly, clear that if the two decisions purport to lay down that even if a public servant has ceased to hold that office as public servant which be is alleged to have abused or misused for corrupt motives, but on the date of taking cognizance of an offence alleged to have been committed by him as a public servant which he ceased to be and holds an entirely different public office which he is neither alleged to have misused or abused for corrupt motives, yet the sanction of authority competent to remove him from such latter office would be necessary before taking cognizance of the offence alleged to have been committed by the public servant while holding an office which he is alleged to have abused or misused and which he has ceased to hold, the decisions in our opinion, do not lay down the correct law and cannot be accepted as making a correct interpretation of S. 6. Therefore, upon a true construction of Sec. 6, it is implicit therein that sanction of that competent authority alone would be necessary which is competent to remove the public servant from the office which he is alleged to have misused or abused for corrupt motive and for which a prosecution is intended to be launched against him.” While dealing with Section 6 of the Prevention of Corruption Act, 1947, the said observation was made by a Constitutional Bench of the Hon’ble Supreme Court. Section 6 of the Prevention of Corruption At, 1947 is pari materia of Section 19 of the Prevention of Corruption Act, 1988. So, from the above decision, it is clear that the authority who is empowered to remove a person from the office is the competent authority to give a sanction for prosecution of the employee. A public servant holding an office of the Executive Engineer, Fisheries Department can be removable by the Government of Andhra Pradesh. Therefore, the Government of Andhra Pradesh alone is competent to give sanction to prosecution the petitioner. 10. The word ‘office’ used in clauses (a), (b) and (c) of sub-section (1) of Section 19 of the Prevention of Corruption Act, 1988 means a position which requires the person holding it to perform certain duties and discharge certain obligations. In other words, a position or place to which certain duties are attached more or less of a public character. Admittedly, the petitioner was holding the office of the Executive Engineer in the State Government. The crucial question is whether the acts constituting the offence committed by a person in his capacity as a public servant while holding an office. In which capacity a person holding an office is