PETITIONER:
STATE OF HARYANA
Vs.
RESPONDENT:
N. C. TANDON
DATE OF JUDGMENT14/04/1977
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1977 AIR 1793 1977 SCR (3) 593
1977 SCC (3) 56
ACT
Prevention of Corruption Act, Section 6(1)(2)--Sanction
for prosecution--Validity of--Authority empowered to sanc-
tion--Delegation of power to sanction.
Central Civil Services (Classification, Control and
appeal) Rules 1965-Rule 10---Power delegated to the Chief
Engineer of Command--Whether can be exercised by the zonal
Chief Engineer.
HEADNOTE
The respondent was convicted for an offence under section
5(2) read with s. 5(1)(d) of the Prevention of Corruption
Act, 1947 and section 161 of the I.P.C. The conviction was
set aside by the High Court on the sole ground that the
sanction for his prosecution was not accorded by a competent
authority. The respondent was a Civilian in the Defence
Services in the rank of temporary Superintendent, Building
and oRads Grade I. The prosecution case was that he had
accepted illegal gratification of Rs. 300/- from one Brij
Bhushan Lal,Contractor, as a motive or reward for doing an
official act.The sanction for the prosecution of the re-
spondent was accorded by Brig. Naresh Prasad Chief Engineer,
North Western Zone, Chandigarh.
The High Court held that Brig. Naresh Prasad had no
authority under the relevant rules either plenary or dele-
gated to appoint a person to a post in class III service at
the time when he passed the order for sanction of prose-
cution. That such a power was delegated to him subsequent-
ly. The learned Judge held that the authority was the Chief
Engineer, Western Command and not the Zonal Chief Engineer.
Section 6(1) of the Prevention of Corruption Act pro-
vides that no Court shall take cognizance of the offence
in question alleged to have been committed by a public
servant except with the previous sanction of the officer
enumerated in clauses (a), (b) and (c) of that section.
Sub-section 2 of section 6 further provides that where for
any reason whatsoever any doubt arises whether the previous
sanction as required under sub-section (1) should be given
by the Central or State Government or any other authority
such sanction shall be given by that Government or authority
which would have been competent to remove the public servant
from his office at the time when the offence was alleged to
have been committed.
The appellant contended that by an order communicated by
letter dated 27-4-1956 (subsequently reiterated in letter
dr. 23-1-1963) made under rule 10 the Engineer-in-Chief had
empowered all Chief Engineers in Military Engg. Service to
make first appointments and that the operation of the said
order was preserved by the saving clause in rule 34(1) of
the 1965 Rules. The appellant further contended that the
fetter placed on the power given to the Chief Engineers in
the matter of removal or dismissal of Class III servants
operates only in case of persons appointed by the Engineer-
in-Chief and not where he was appointed by the Chief Engi-
neer of a Command. In the present case, the respondent was
appointed not by Engineer-in-Chief but by the Chief Engi-
neer, Western Command.
The respondent contended that the order dated 27-4-1956
expressly delegates the power of making first appointments
only to the Chief Engineers of the three commands then in
existence and of the ’other departments specified therein.
In 1956, when the order was made there were no zonal Chief
Enginers, which
594
came into existence in December, 1962 as a class apart
working under the overall administrative control of the
Chief Engineers of Commands. A general delegation of the
power in favour of the Chief Engineers of Commands as a
class cannot by any reckoning amount to a delegation in
favour of the Zonal Engineers also working under the control
of the Chief Engineers of Commands. Secondly, the letter
dated 23-1-1963 was not issued under the signature of the
Engineer-in-Chief nor can it be construed as a delegation of
the power of appointment under rule 10. Alternatively, the
power delegated by the Engineer-in-Chief to the Chief Engi-
neers was a qualified one inasmuch as no power was given to
them to dismiss or remove a Government servant of Class III
service.
Dismissing the appeal,
HELD: (1 ) Unless a different intention appears the
power to appoint to an office includes the power to dis-
miss or remove from that office as provided in s. 16 of
General Clauses Act. The post which the respondent was
holding is a post of Class III service and the members of
the service are governed by Central CiVil Services (Classi-
fication, Control and Appeal) Rules, 1965. 1965 Rules repeal
the earlier 1952 Rules and any notification or orders issued
thereunder in so far as they were inconsistent with the 1965
rules. Under rule 10, appointments to Class III and Class
IV Civilian Service are to be made by the officers empowered
by the Engineer-in-Chief. Thus the appointing authority is
competent to delegate the power of appointment. [596 B, C,
G-H, 597D]
(2) A perusal of the letter dated 27-4-1956 communicat-
ing the order of the Engineer-in-Chief shows that it is
addressed to the Chief Engineers, Southern Command, Eastern
Command and Western Command. On the date of this letter
there were only 3 Commands; two Commands were created subse-
quently. There were no Zones or Zonal Chief Engineers at
that time. Therefore, the Chief Engineers to whom the
powers have been delegated under this letter could only be
the Chief Engineers of the Commands as a class and it would
cover Chief Engineers of the Commands which were subsequent-
ly created. But it would not include the Chief Engineers
of Zone. Zonal Chief Engineers have, to work under the
Command and technical control of Chief Engineers of Com-
mands. Zonal Chief Engineers are a class apart from the
Chief Engineers of Commands. They are under the administra-
tive control of the Chief Engineers of Command. Thus the
delegation is to the Chief Engineers of Commands and not to
the Zonal Chief Engineers. [600 A-B, F-H 601 A-B]
(3) The letter dated 23-1-1963 is not signed by the
Engineer-in-Chief. It appears to have been signed by some
other person for Engineer-in-Chief. Nor does it purport to
have been issued pursuant to any separately passed order of
the Engineer-in-Chief expressly delegating the powers of
appointment to posts in Class III service under Rule 10.
There is nothing in the letter to show that the delegation
was to the Zonal Chief Engineers. On the contrary, para 8
of the letter talks of the Command Chief Engineers. The way
in which the Engineer-in-Chief has construed the letter is
not relevant. [601 G-H, 602AB]
(4) Brig. Naresh Prasad, Zonal Chief Engineer was not
competent to remove the respondent and as such, the order
sanctioning the prosecution of the respondent was bad in
law. [602 C]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 126
of 1977.
Appeal by Special Leave from the Judgment and Order
dated the 12-1-1976 of the Punjab and Haryana High Court in
Crl. A. No. 583/ 72
R.N. Sachthey and H.S. Marwah for the Appellant.
595
Hardyal Hardy and S.K. Sabbarwal for Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.--This appeal by the State is directed
against a judgment of the Punjab and Haryana High Court
setting aside the conviction of the respondent herein in
respect of offences under ss.5(2) read with s.5(1)(d) of the
Prevention of Corruption Act, 1947 and 161, Penal Code on
the sole ground that the sanction for his prosecution had
not been accorded by a competent authority.
N.C. Tandon, respondent Was a civilian in the defence
service in the rank of temporary Superintendent Building and
Roads, Grade I. It was alleged that he had accepted illegal
gratification of Rs. 300/ from one Brij Bhushan Lal, Con-
tractor on 11-3-1971 as a motive or reward for doing an
official act. The Contractor was at the material time doing
the construction of main sewers in Chandigarh Cantonment
near Panchkula. The respondent’s duty was to supervise
that construction. The respondent, it is alleged, demanded
the bribe as a reward for recording correct measurements.
Brij Bhushan Lal did not, in fact, want to pay the gratifi-
cation. He therefore informed the Special Police Establish-
ment authorities who on 10-11-1971 trapped the accused and
allegedly recovered the tainted money from his possession.
The sanction for the prosecution of the accused was
accorded by Brig. Naresh Prasad, Chief Engineer, North
Western Zone, Chandigarh on 24-6-1971. The Special Judge,
Ambala tried and convicted the accused on the aforesaid
charges and sentenced him to one year’s rigorous imprison-
ment and a fine of Rs. 1,000/-.
Tandon appealed to the High Court. The appeal was heard
by a learned Single Judge who held that on 24-6-1971, when
Brig. Naresh Prasad Chief Engineer, North Western Zone
passed the order of sanction for prosecution, he had under
the relevant Rules, no plenary or delegated power to appoint
to a post in Class III Service and that such a power was
delegated to Chief Engineers of Zones for the first time on
14-1-1972. The learned Judge noted that the authority
competent to appoint the accused-respondent on 24-6-71, was
the Chief Engineer Western Command, Simla, and not the Zonal
Chief Engineer. He therefore concluded that the sanction for
prosecution of the accused had not been given by the compe-
tent authority. On this short ground, the High Court al-
lowed Tandon’s appeal, without going into the merits of the
case.
At the outset, we may notice the general principles
which govern the sanction for prosecution in such cases.
Sub-section(1) of s. 6 of the Prevention of Corruption Act
says:
"No court shall take cognizance of an
offence punishable under s. 161 (or sec. 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 a public servant, except with the
previous sanction of the authorities enumerat-
ed in clauses (a) (b) and (c) of that
section."
596
Sub-section (2) of the section provides:
"Where for any reason whatsoever any
doubt arises whether the previous sanction as
required under sub-section (1) should be given
by the Central or State Government or any
other authority, such sanction’ shall be
given by that Government or authority "which
would have been competent to remove the public
servant from his office at the time when the
Offence was alleged.to have been committed."
(emphasis added)
Thus the test as indicated in this sub-section, for
judging the competency of the authority giving the sanction
is, whether at the time of the alleged commission of the
offence, it had the power to remove the public servant from
his office.
Another principle to be borne in mind is, that unless a
different intention appears, the power to appoint to an
office includes the power to dismiss or remove from that
office (vide s. 16, General Clauses Act).
We may further clear the ground and have a short, swift
look at the relevant statutory rules. It is common ground
that the post of Superintendent, Grade I (B & R) which the
accused was temporarily holding, is a post of Class Iii
Services, and the members of this Service are governed by
Central Civil Services (Classification, Control and
Appeal) Rules, 1965 (for short, hereinafter called 1965
Rules). The 1965 Rules were promulgated on November 20,
1965. Rule 34 of the 1965 Rules repealed the earlier Rules
of 1952 and any notification or orders issued thereunder "in
so far as they are inconsistent with (the 1965 Rules)".
One of the provisions of the 1952 Rules, which is relevant
for our purpose, and which has substantially been repro-
duced in the 1965 Rules, is Rule 10. It reads as under:
"10. All first appointments to Class I and
Class II Services shall be made by the Govern-
ment. All first appointments to Class III and
Class IV services shall be made by the author-
ities specified in column 3 of Schedule IV in
respect of posts mentioned against them or by
officers empowered in this behalf by such
authorities."
(emphasis
added).
schedule IV reffered to in the rule ran as follows:
"Schedule IV (Vide Rules, 10, 11, 12, 14 and 19).
SI. Posts Appointing Auth- Authority em-
No. orities in respect powered to im-
of Class III and pose penalties
Class IV posts (i),(ii),(iv)
(vide rule 10) and (v) of rule
13 for Class II
officers (Vide
r. 14)
1 to 7 . . . . . . . . .
8. Posts in lower for- E-in-C C. Es. of the
mation under E-in-C’s Commands.
Branch
X X X."
597
The former Rule 10 as recast into Rule 9 of the 1965
Rules reads as below:
"9(1) All appointments to Central Civil
Services (other than General Civil Service)
Class II, Class. III and
Class IV shall be made by the authorities
specified
in this behalf in the Schedule.
Provided that in respect of Class
III and Class IV Civilian Services, or civil-
ian posts in the Defence Services appointments
may be made by officers powered in this behalf
by the aforesaid authorities.
(emphasis added)
(2) All appointments to the Central Civil
Posts,Class II, Class III and Class IV includ-
ed in the General Central Civil Service shall
be made by the authorities specified in this
behalf by a general or special order made, by
the authorities specified in this behalf in
the Schedule."
It may be noted that both under the old Rule 10 and the
Proviso to new Rule 9(1), the appointing authority is compe-
tent to delegate the power of appointment in respect of
Class III Service.
Rule 13 enumerated these penalties which could be im-
posed upon the servants subject to the Rules:
(i) Censure.
(ii) Withholding of increments or promotion.
(iii) Reduction to a lower post or time-scale
or to a lower stage in a time-scale.
(iv) Recovery from pay of the whole or part
of any pecuniary loss caused to Government by
negligence or breach of orders
(v) Suspension.
(vi) Removal from the civil service of the
Government, which does not disqualify from
future employment.
(Vii) Dismissal from the civil service of
the Government which ordinarily disqualifies
from future employment.
(viii) Compulsory retirement .... "
Rule 14 of 1952 Rules specified who-could impose these
penalties. It provided :-
"14(1) Any of the penalties specified in
rule 13 may be imposed on any person subject
to these rules by the Government or by the
appointing authority.
598
(2) Without prejudice to the provisions of
sub-rule (1), any of the penalties specified
in clauses (i), (ii), (iv) or (v) of rule 13
may be imposed.
(a) .........
(b) in the case of members of Class III
and IV services by the authority empowered in
this behalf by the appointing authority.
Explanation.--In this rule the expression
"appointing authority" includes an officer
empowered under Rule 10 to make first appoint-
ments to Class III and Class IV Services."
Rules 11 and 12 of the 1965 Rules correspond to Rules 13
and 14 of 1952 in all material aspects, excepting two,
namely, (1) Suspension has been taken out of the category of
penalties, and (2) the Explanation appended to Rule 14 has
been omitted because in the 1965 Rules, the subject matter
of that Explanation has been made a part of the definition
of "Appointing Authority" given in Rule 2(a).
The main submission of Mr. Sachthey learned Counsel for
the appellant is that by an order communicated per letter,
dated 27-4-1956, made under Rule 10 of the 1956 Rules,
(.subsequently reiterated in letter dated 23-1-1963) the
Engineer-in-Chief had empowered all Chief Engineers in
Military Engineering Service to make first appointments,
inter alia, to posts in Class III Service, and that the
operation of the aforesaid order was preserved and contin-
ued by the saving clause in Rule 34(1) of the 1965 Rules.
On these premises, it is maintained, that the High Court
was wrong in holding that the Chief Engineer of the North-
Western Zone, Chandigarh. was not the ’appointing authority
competent to remove the accused from service.
As against this, Mr. Hardyal Hardy, learned Counsel for
the respondent submits that the order, dated 27-4-56, ex-
pressly delegates the power of making first appointments.
only to the Chief Engineers of the three Commands, then in
existence, and to the other authorities specified therein.
It is pointed out that in 1956 when this order was made,
there were no Zonal Chief Engineers which came into exist-
ence on reorganization in December 1962, as a class apart,
working under the orerail administrative control of the
Chief Engineers of Commands. The point pressed into argu-
ments is that a general delegation of the power in favour of
Chief Engineers of Commands, as a class, cannot, by any
reckoning, amount to a delegation in favour of the Zonal
Chief Engineers, also, working under the control of the
Chief Engineers of Commands.
Mr. Hardy has further submitted that the letter dated
23-1-1963 has not been issued under the signature of the
Engineer-in-Chief, nor can it, by any stretch of language,
be construed as a delegation of the power of appointment
under Rule 10. In the alternative, it is submitted the power
delegated by the Engineer-in-Chief to the Chief Engineers
was a qualified one inasmuch as no power was given to them
to dismiss
599
or remove a Government servant of Class III Service. It is
maintained that by the aforesaid letter, the Chief Engineers
were empowered to impose only minor penalties other than
that of dismissal and removal. It is urged, in view of
this restricted delegation in the matter of inflicting.
penalties, it cannot be said that on the principle underly-
ing Sec. 16 of the General Clauses Act power of appointment
will automatically include the power to remove the person
appointed from his office.
In reply, Mr. Sachthey has pointed out that the fetter
placed on the power given to the Chief Engineers by the
letter dated 27-4-56, in the matter of removal or dismissal
of Class III servants, operates only in case of persons
appointed by the Engineer-in-Chief, and not where he was
appointed by the Chief Engineer of a Command. It is pointed
out that in the instant case, the accused was appointed not
by E-in-C but by the Chief Engineer, Western Command, Simla.
The main question that falls to be considered is
whether the E-in-C’s order communicated through letter,
dated 27-4-1956, can be construed as a valid delegation of
the power of appointment tO posts in Class III Service to
Zonal Chief Engineers, which came into existence on re-
organization in December, 1962 ?
The material part of this letter reads as under:
"TO
The Chief Engineer,
Southern Command, Poona
Eastern Command, Lucknow
Western Command, Simla
X X X
Subject: Civilians in DefenCe Services (Classification,
Control and Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in Defence
Services (Classification, Control and Appeal) Rules, 1962, I
hereby authorise the authorities mentioned hereunder to make
first appointments to Class III and IV Services to the
extent indicated below:
Authority Posts
(a) Chief Engineers . . . . . All posts with the
excepetion of per-
(b) CWO, NDES . . . . . manent appointments
to the following
categories:
(i) Superintendent, B/R Grade I.
* * *
2. Under Rule 14(b) of CDS (CC&A) Rules, 1952 the under-
mentioned authorities are empowered to impose penalties
referred to in Rule 13 ibid, to the extent indicated below
:-
(a) Chief Engineers and Penalties at (i), (ii), (iv)
and (v) of Rule 13 on Class
III employees in respect of
whom E-in-C is the appoint-
ing authority,"
600
A perusal of this letter will show that it is (among
others) addressed to the Chief Engineers, Southern Command,
Eastern Command, Lucknow, and Western Command, Simla. On
the date of this letter there were only three Commands; two
commands were created subsequently. There were no Zones or
Zonal Chief Engineers at that time. Therefore, the Chief
Engineers to whom the powers have been delegated under this
letter could only be the Chief Engineers of the Commands, as
a class. Since the delegation has been to the Chief Engi-
neers of the Commands, as a class, it will cover the Chief
Engineers of these Commands, also, which were subsequently
created. But, the question is will it take in Chief Engi-
neer of Zones and amount to a delegation of power in their
favour, too, on their creation six years later in 1962 ?
Answer to this question will depend on whether the Chief
Engineers of Zones belong to the same class holding the same
rank and exercising same administrative powers and control
as the Chief Engineers of Commands ?
At the final hearing, we had asked Shri Sachthey, to make
available to us the official order, regulations and like
material throwing light on this aspect of the problem-From
the material furnished by him, it appears that the decision
to reorganize the Military Engineering Service was taken by
the Government in December, 1962. Pursuant to that deci-
sion, the Zones were created and Engineering Services in
each Zone were placed under the charge of a Chief Engineer,
of that Zone. Chandigarh area was also made North-Western
Zone, for this purpose.
This reorganisation took effect from January 1, 1963.
The main object of creation of Zonal Chief Engineers as
stated in C-in-C’s letter No. 66161/II/E2A, dated 13-12-
1962, was to "effect maximum possible decentralisation and
thereby achieve speed and efficiency in the planning and
execution of work services."
As is apparent from the letter dated 22/26-12-1962 from
the Engineer-in-Chief, the Zonal Chief Engineers have to
work "under the command and technical control of CEs Com-
mands for the planning and execution of works." E-in-C’s
letter, No. 6161/II/E2A, dated December 13, 1962 addressed
to the Chief Engineers, Commands and others, also, makes it
clear that under the re-organized set up, "C.E. located at
each Command H.Q. will be responsible for all engineer
matters in the Command, administration and training of
engineer troops and for the coordination of works. Under the
Command and technical control of this Chief Engineer there
will be number of CEs/CSWE...on zonal basis."
These two letters unmistakably show that the zonal Chief
Engineers are a class apart from the Chief Engineers of Com-
mands. Although extensive financial powers have been dele-
gated to the Zonal Chief Engineers, which are almost the
same as that of the Chief Engineers of the Commands, the
fact remains that they are under the overall administrative
control of the Chief Engineer of the Commands concerned.
601
In this view of the matter the scope of the delegation
of the powers made under the letter dated 27-4-1956, must be
construed as a delegation only to the Chief Engineers of
Commands, as distinguished from the Chief Engineers of Zones
which were then not even in embryo.
This takes us to the letter dated January 23, 1963 from
the Army H.Qrs., E-in-C’s Branch. In the first place, this
letter is not signed by the E-in-C. It appears to have been
signed by some other person "for E-in-Chief"; secondly it
does not purport to have been issued pursuant to any sepa-
rately passed order of the E-in-C expressly delegating under
Rule 10, the powers of appointment to posts in Class III
Service. The opening sentence of this letter, no doubt,
refers to HQ Letters No. 66161/II-E2A, dated 8 Dec. 1962,
para 4 and even No. of 22 Dec. 1962, which we have already
noticed. There is nothing in them which delegates the
powers of appointment to any posts to the Zonal Chief Engi-
neers. On the contrary, para 8 of this letter says "All
Class III and IV personnel will be provided by the Command
CE and will continue to be borne on the strength of that
Command for purposes of (a) All documentation (b) Temporary
promotion (c) Permanency (d) Retrenchment and reversion
(e) Pension-progress by the Unit but overall control by the
Command CE." (Emphasis added)
Mr. Sachthey has placed great stress on para 12 of this
letter which says:
"The normal powers of Chief Engineer in
all matters relating to appointments, punish-
ments etc. vest with each Zonal Chief Engi-
neer in accordance with this HQ letter No.
27304/ELD(2) dated 27th April 1956. In exer-
cising these powers it will be necessary to
consult CE Command prior to recruitment and
replacements."
The argument advanced on behalf of the appellant is that
the very authority that had issued the letter dated April
27, 1956 has construed it as delegating the powers of ap-
pointment, punishment etc. to the Zonal CEs. also, and
therefore, the Court should accept that interpretation.
We are unable to accept this argument. We have already
pointed out that this letter, dated 23-1-63, has not been
issued under the signature of the same authority from which
the order, dated 27-4-56, had emanated. It does not ex
facie show that any order, apart from that dated 27-4-56,
had been passed by the Engineer-in-Chief under Rule 10. For
reasons given earlier, we have no hesitation in holding that
the assumption made in Paragraph 12 of this letter ex-
tracted above, to the effect that the Zonal Chief Engineers
were vested with powers of appointments, punishments etc. in
accordance with H.Q. letter dated 27 April 1956 was clearly
incorrect, Perhaps, that was why on 14-1-1972, the necessity
of making a proper order delegating such powers to Zonal
Chief Engineers and others, under Rule 9 was felt by the
Engineer-in-Chief.
602
No other order of the Engineer-in-Chief made prior to
24-6-1971 under Rule 10 of 1952 Rules or under Rule 9(1) of
the 1965 Rules delegating the power of appointment to posts
in Class III Services, has been placed before us. We have
therefore no alternative but to hold that on 24-6-1971,
Brig. Naresh Prasad, Zonal Chief Engineer, North Western
Zone, Chandigarh, was not competent to remove the
accused-respondent, Tandon, from the post of Superintendent,
B&R Grade I, Chandigarh and as such, the order sanctioning
the prosecution of the respondent was bad in law.
In view of this finding, we do not think it necessary to
examine the alternative contention advanced by Shri Hardy.
The case fails because there is no valid sanction, as re-
quired by the law. Obviously, this does not preclude a
fresh prosecution for the same offence--but it is a matter
for the State, in the circumstances of the case, to consider
whether prosecution should be launched against the respond-
ent or not. We make this observation only to remove a
possible misapprehension.
In the result, the appeal fails and is dismissed.
P.H.P. Appeal dismissed.
603