22 December 2020

Subordinate to the appointing authority can not grant sanction to prosecute

Additional Collector holding charge of District Collector can not give sanction to prosecute in corruption case when employee is appointed by District Collector

    The sanction for prosecution can be granted by the authority competent to remove person. The appointment authority was Collector. PW-4 was subordinate to Collector. He was working as Additional Collector. The prosecution is relying upon the order handing over the charge to PW-4. The documents were produced on re-examination of the witness. The question which arises for consideration is that assuming that the charge was handed over to PW-4, on account of leave of District Collector, whether the charge of according sanction to prosecute the accused stands transferred to him. There is no satisfactory evidence on record to substantiate this fact. The approach of PW-4 appears to be casual. Learned counsel for the appellant has drawn my attention to some provisions of Maharashtra Civil Services Rules to bring home and contended that District Collector was appointing and removing authority.[Para No.21]

    It is submitted that, disciplinary authority cannot be inferior to the appointing authority. In the present case the collector being the appointing authority of the applicant, the additional collector did not have the power to remove him from service. Article 311 (1) of the constitution of India creates a safeguard where in no person who is a member of the Civil services of the Union or the state or an All Indian Service or a civil service or who holds a civil post under the union or State shall be removed by an authority sub ordinate to him. In the present case PW-3 at the relevant time was functioning as the Additional collector of Kolhapur. PW-3 in his examination in Chief makes a positive assertion that the Collector of the District is the Appointing and the removing Authority of the Appellant/accused. The Appointment order of the Appellant was produced on record by the said witness and the same is at (Exh.119). The PW 3 admits in his cross examination that the Post of the Additional Collector and Collector are different. The onus of proving a valid sanction is on the prosecution and hence it was incumbent upon the prosecution to bring on record any documents which would demonstrate that the power of Appointment and the removal of the Appellant vested with the Additional Collector. The prosecution has not produced any documents in this regard. The aforesaid witness was re-examined by the prosecution and the documents at Exh.124 is a charge report dated 11th April, 2006. It can be seen that the Collector holding regular charge was proceedings on leave and hence the Additional Charge of the District was being handed over to the PW-3. In the aforesaid charge report it is no where mentioned that the PW-3 had the authority to remove the Appellant or persons of equivalent rank from service and hence (Exh.124) would not come to the aid and assistance of the prosecution.
Subordinate to the appointing authority can not grant sanction to prosecute
In fact Article 311 (1) does not permit such a delegation of powers and hence assuming without admitting that there was such a delegation, then the same would nonest in the eyes of law and the same would be in conflict with the constitutional safeguard created under Article 311 (1) of the Constitution of India.[Para No.22]

    Learned Advocate relied upon decision of apex Court in the case of KrishnaKumar Vs. Divisional Assistant Electrical Engineer, (Supra). It is observed by apex Court that Article 311(1) of the Constitution of India provides that no person who is a member of civil service of the union or state shall be dismissed or removed by authority subordinate to that by which he was appointed. In the case of Bhauro Manekar Vs. State of Maharashtra, (Supra), it was observed that the Sub-divisional Officer being subordinate to Collctor cannot remove from service officer appointed by Collector. In the case of Mohanlal Keshavlal Vs. State (Supra), this Court has observed that appointing authority and removing authority is General Manager of Railway and sanction by traffic Superintendent is not valid. In the case of Maruti Shinde Vs. State of Maharashtra (Supra), it was observed that Sub-divisional Officer was not competent to accord sanction. The accused was appointed by Asst. Collector and sanction to prosecute was granted by S.D.O. The power to grant sanction to prosecute has to be exercised by person who is not subordinate to appointing authority. Similar view was taken in the case of State of Maharashtra Vs. Bhikan S. Maniyar (Supra) by this Court. I find force in the submission of learned counsel for applicant. The prosecution has not satisfied that PW-3 has authority to accord sanction.[Para No.23]

Bombay High Court

Satish Ganpatrao Suryavanshi
State Of Maharashtra 

Decided on 18/12/2020

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