1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Ganga Ram vs. State of Rajasthan & Ors. S. B . CIVIL WRIT PETITION NO.9599/2009 Date of Order :: 13.12.2010 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Ramesh Purohit, for the petitioner. Mr. Rajkamal Soni, Addl. Government Counsel. .... BY THE COURT : On 15.4.2004, a surprise check was made by Anti Corruption Bureau at Check post, Bharudi Khanpur where the petitioner was posted at Nakedar. At the time of checking, the petitioner was not found at the check post, however, the receipt book issued to him was found with a private person, accordingly, the Assistant Mining Engineer, Jalore on receiving the information about absence of the petitioner on check post placed him under suspension under an order dated 26.7.2004. The suspension aforesaid came to be revoked vide order dated 2 29.11.2005. The petitioner was also subjected to an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules of 1958' hereinafter) under a memorandum dated 23.3.2006. The enquiry officer after holding the regular enquiry held the petitioner guilty for negligence in handing-over the Government receipts to an unauthorised person. No decision is yet taken by the disciplinary authority regarding imposition of penalty on basis of the findings given by the enquiry officer. However, for the same incident, an FIR was also lodged by the Anti Corruption Bureau and the authority competent i.e. the Director, Department of Mines and Geology, Udaipur on 31.7.2009 has granted sanction as per provision of Section 19(1)(c) of the Prevention of Corruption Act, 1988 (for short 'the Act of 1988' hereinafter) to prosecute the petitioner for the offence punishable under Section 13(1)(c)(d) and Section 13(2) of the Act of 1988 read with Sections 420, 120-B I.P.C. An order of suspension is also passed on 10.8.2009 by the Director, Department of Mines and Geology, Udaipur after granting sanction to prosecute the petitioner. Being aggrieved by the suspension order dated 10.8.2009 and the order dated 31.7.2009, this petition for writ is preferred. The contention of learned counsel for the petitioner is that 3 at the first instance, a draft prosecution sanction was received by the Director, Department of Mines and Geology, Udaipur from the Anti Corruption Bureau and the Director, without application of his mind, just by putting his name at the blank space shown in second last para of the draft prosecution sanction, granted the sanction to prosecute the petitioner. It is asserted that as a matter of fact, the entire process of granting sanction was made in mechanical manner and the non-application of mind while doing so is apparent. While placing reliance upon the judgment of Hon'ble Supreme Court in the case of State of Karnataka Vs. Ameerjan (reported in 2008(1) SCC (Cr.) Page. 130), it is asserted by learned counsel for the petitioner that the order granting 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 the judgment of this Court in Kishan Lal Vs. State of Rajasthan and Ors. holding therein that the statutory power given to the authority competent is required to be exercised by that authority by adequate application of mind. 4 While meeting with the arguments advanced, the contention of learned counsel for the respondent is that the competent authority prescribed under Section 19(1)(c) of the Act of 1988 adequately considered the matter and this only granted sanction to prosecute the petitioner. Heard learned counsel for the parties. The petitioner has placed on record the draft prosecution sanction (Annex.-7) as remitted to the Director, Department of Mines and Geology, Udaipur by the Anti Corruption Bureau. The order granting sanction to prosecute the petitioner dated 31.7.2009 is also available on record as Annexure-9. On comparison of both the documents, it is apparent that the sanctioning order is at verbatim to the draft as remitted by the Anti Corruption Bureau for grant of prosecution sanction. From examination of the entire reply to the writ petition, it nowhere reveals that as to how the competent authority independently applied its mind on the record, on basis of which prosecution of the petitioner is desired. On the contrary, it is apparent that the competent authority accepted the draft prosecution report ipse-dixit. It is well settled that the competent authority is required to apply its own mind while 5 considering the issue regarding the grant of prosecution sanction. This Court in its recent judgment in Subhash Bhatia and ors. Vs. State of Rajasthan and ors. (S.B.Civil Writ Petition No.590/2010) decided on 10.12.2010, while dealing with the issue relating to the responsibility of the competent authority while granting sanction for prosecution held as under:- “The authority competent to remove a public servant from service is clothed with the power to grant sanction for prosecution to such public servant by the Legislature with a definite intention as that authority being having administrative and disciplinary control on the person concerned is in a position to assess and weigh the accusation on basis of intimate knowledge of the work and conduct and also having day to day knowledge of overall administrative interest of the department. The sanction for prosecution represent a deliberate decision and that requires objective satisfaction of the competent authority about a prima facie case against the person facing accusation. The authority competent while granting sanction is also required to record reasons for launching prosecution and is further required to specify its need in public interest. This important duty can be discharged only on independent application of mind to all the relevant facts on basis of which prosecution is proposed. If any 6 extraneous pressure is mounted on the authority competent then there shall be all chances of frivolous and malicious prosecution. To maintain the spirit of the provisions for the grant of sanction to prosecute a public servant, the authority competent is required to act independently, objectively and with an intention for not saving a culprit from prosecution but at the same time with a view to afford a reasonable protection to a public servant from unnecessary harassment and undue hardship through vexatious prosecution. Keeping in mind, the above mentioned intention of the Legislature, Hon'ble Supreme Court in State of Karnataka Vs. Ameerjan (supra) authoritatively held that the order granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority. For the same reason, this Court too in the case of Kishan Lal (supra) held that the statutory power given to the authority competent is required to be exercised by the authority concerned and not by any body else.” In view of the factual and legal position discussed above, it is apparent that in the instant matter, the competent authority just acted upon the instructions given by the Anti Corruption 7 Bureau, without any independent application of mind at his own part. Such mechanical exercise of powers is not at all permissible while granting sanction to prosecute the public servant as per provision of Section 19(1)(c) of the Act of 1988. As such, the grant of sanction under the order impugned dated 31.7.2009 is bad. The order of suspension dated 10.8.2009 is solely based on the grant of sanction to prosecute the petitioner under the order dated 31.7.2009. It is stated by learned counsel for the respondents that certain instructions are given by the State Government to place an incumbent under suspension immediately on grant of sanction for his prosecution under the Prevention of Corruption Act. This Court had an occasion in Samrath Singh Vs. State of Rajasthan {reported in 2010(2) RLW Page 1670} to examine correctness of such kind of instructions given to place an incumbent under suspension mandatorily. The view taken in the case aforesaid deserves to be quoted as under:- “True it is, suspension of a civil servant is an administrative action and the government is having ample power to provide necessary guidelines to the competent authorities for exercising powers as per Rule 13, but at the same 8 time it is also well settled that the administrative instructions can always be given to fill up the unoccupied field, however, such instructions in no way encroach the space already under occupation of an statute. In the present case the circular dated 10.8.2001 nowhere provides instructions to the competent authority as to how powers under Rule 13 are required to be exercised, but it imposes mandate upon the discretion of the competent authority. Such imposition of a mandate over statutory discretion is not permissible under administrative jurisprudence. The State Government would have been right in providing guidelines or a mode to exercise discretion under Rule 13 of the Rules of 1958. The State Government could have given instances and instructions to the competent authority to exercise its discretion to place an incumbent under suspension in particular circumstances but not an order to place government servant under suspension mandatorily in specific cases. It is for the competent authority to examine facts of each and every case and to settle desirability to place an incumbent under suspension by applying objective discretion. The suspension of an employee, looking to the facts and circumstances of the case may be desired urgently or on emergent basis but in those circumstances also the competent authority must record its satisfaction for exercising powers under Rule 13. If such satisfaction is not recorded and suspension is made merely on basis of the instructions given in 9 circulars or merely by a word of mouth or by slip of pen, then that is nothing but colourable exercise of power.” In the case in hand, the petitioner has been placed under suspension without adequate application of mind and just by acting upon the mandatory instructions issued by the State Government. In view of it, and also in view of the fact that the sanction granted for prosecution too is bad, the order of suspension also deserves to be quashed. Accordingly, this petition for writ is allowed. The order dated 31.7.2009 passed by the Director, Department of Mines and Geology, Udaipur granting sanction to prosecute the petitioner is declared illegal, and therefore, the same is quashed. The order of suspension dated 10.8.2009 passed by the Director, Department of Mines and Geology, Udaipur placing the petitioner under suspension as a consequent to grant of sanction under the order dated 31.7.2009 is also declared illegal and the same is also quashed. However, this order shall not preclude the authority competent to reconsider the matter afresh at his own level in accordance with law for grant of sanction to prosecute the petitioner. No order as to costs. ( GOVIND MATHUR ),J. rm/