9911796707
TMI Blog2012 (3) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent/Bank for a period of 33 years under various positions. While he was working as Chief Manager of Indira Nagar Branch, Chennai, in the year 2005, an explanation was called for in respect of some of the commissions and omissions stated to have been committed by him during 2003-2005. At that time, he was working in New Delhi. The appellant has submitted his explanation. Rejecting the said explanation, charges were framed against him and enquiry was conducted and based on the report of the Enquiry Officer, the Employer/Bank, by an order dated 13.11.2008, has imposed a punishment of reduction in basic pay by one stage in the time scale of pay for a period of one year with further direction that he will not earn increment of pay during the period of such reduction and on the expiry of such period, the reduction will have the effect of postponing his future increment of pay. That order of punishment imposed in the departmental proceeding has become final. 3. It appears that after he was transferred from New Delhi Branch, certain complaint has been lodged with the Central Bureau of Investigation, Economic Offence Wing, New Delhi and the same was registered on 24.12.2007 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apply judicial mind and therefore, as and when new materials come to light, the Authority is entitled to change its view and on that basis, it was the case of the respondent/Bank before the learned Single Judge that the writ petition is not maintainable. It is further stated that the Disciplinary Authority has given a finding accepting the report of the Enquiry Officer about the guilt of the appellant and it has prima facie satisfied itself to come to a conclusion that there are sufficient materials available for the purpose of granting sanction and therefore, it is not open to the appellant to say that there were no prima facie materials available. 7. It is also the case of the Bank that simply because on an earlier occasion certain mistakes have been committed by the Authority Competent in declining the grant of sanction, that does not prevent the Authority to take a different decision as long as sufficient materials are available and the action has been taken bona fide giving independent reasons. 8. It is also the case of the respondent/Bank that the decision to grant sanction, even if it is by the same Authority, when compared to earlier two occasions, the same was on i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3)The member has chosen to sanction packing credit limits of ₹ 95 lakhs each to four borrowers without proper verification of KYC of the borrowers concerned and CBI has been able to establish the link between these four parties and Mr.G.D.Bansal. 4) The member has accepted the valuation of nearly ₹ 1.31 crores for a property which was registered with Sub-Registrar for a sum of ₹ 2.55 lacs nine months prior to the date of valuation. In this case, Bank was able to actually realise only ₹ 19.00 lacs after liquidation of their property. Hence, we request you to re-examine the matter and advise your decision. and the letter dated 04.09.2009 of the Central Vigilance Commission is as follows: Dated: 04.09.2009 OFFICE MEMORANDUM SUB:RC4(E)/2007/EOW-II/DLI against Shri G.D.Bansal, R/o 115, Enineer Enclave, Pitampura, New Delhi-34 and Others Case of Shri M.S.Vijay Kumar, SMGS-IV, Indian Overseas Bank. The undersigned is directed to refer to the IOB's letter No.C.208.VIG:GM(V)/305/2009-10 dated 20.05.2009 and subsequent joint meeting held with the SP, CBI and CVO on 21.08.2009 on the subject cited above. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arnataka Vs. Ameerjan, (2007) 11 SCC 273, which contemplates independent application of mind as an imperative character for granting sanction, the learned Judge has concluded that the impugned sanction order is a speaking order. The learned Judge has also held that it can never be contended that for granting the sanction, the Authority has no power of review. What is required is an independent application of mind and materials. The learned Judge has also held that there is no delay on the part of the Authority in granting sanction order, since it was only after the Central Vigilance Commission has brought to the notice of the Sanctioning Authority new materials, which expose the alleged conspiracy between the appellant and G.D.Bansal, the sanction order had to be issued, which cannot be held to be invalid. According to the learned Judge, fresh materials were placed and they gave a new slant and therefore, simply because there is some delay, it cannot be held that the Sanctioning Authority cannot review its earlier order. With that reasoning, the learned Judge has dismissed the writ petition, because of which the writ petitioner has filed the appeal. 11.The main grounds on whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the departmental proceeding has become final. 13. In this case also, like that of the Appellant, wherein the fact was explained about the complaint that was registered, making the petitioner as one of the accused and the Central Bureau of Investigation forwarded a letter on 28.07.2004 to the Authority Competent to grant sanction to prosecute the petitioner for alleged offences under Section 120-B read with Sections 420, 467, 468, 471 of the I.P.C. and under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The General Manager, Central Office, who is the Competent Authority, has rejected the proposal of the Central Bureau of Investigation on 31.08.2004. It appears that there has been some letter on 04.11.2009 from the Central Vigilance Commission requesting the General Manager to grant sanction, stating the necessity of granting sanction for prosecution because of the gravity of the alleged offences, which was once again rejected by the Chairman cum Managing Director on 23.12.2004 reiterating the earlier stand taken by the General Manager on 31.08.2004. It appears that subsequently, based on certain advice of the Central Vigilance Committee dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Sanctioning Authority has no power to review, such power of review is possible when there are new materials. Therefore, there cannot be any review of earlier decision based on the same materials, which were the basis for earlier rejection. To substantiate the same, he would rely upon the latest judgment of the Hon'ble Supreme Court in State of Himachal Pradesh V. Nishant Sareen, AIR 2011 SC 404. 18. On the other hand, it is the contention of Mr.N.G.R.Prasad, learned counsel for respondents 1 and 2 that the sanction order is not a decision, but it is only a statutory requirement. Against the sanction order, no writ petition can be filed. To substantiate that a sanction order is only an administrative act and therefore, it does not require any opportunity to a person against whom the sanction order was to be given or there is no question of principles of natural justice to be followed, he would rely on decision in Superintendent of Police (C.B.I) V. Deepak Chowdhary and others, (1995) 6 SCC 225. 19. Again, to insist on his point that the sanction is only procedural in nature and it does not go to the root of jurisdiction, he would rely upon the decision Paul Vargh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... makar Iron and Steel Company on 10.02.2005 and he has filed a report, in which he states that the value of the collateral security is ₹ 1.31 crores as per the valuer of the Indian Overseas Bank, S.S.K.Bhagat. Further, the stock statements submitted by M/s.Padmakar Iron and Steel Company from time to time, signed by Shri Om Prakash Malik showing a godown address in Narela, New Delhi, has been accepted by the appellant, while such godown does not exist in the said premises. Therefore, by sanctioning such loan facilities to the said party, loss has been caused to the Bank and therefore, the appellant has committed offences under Section 120-B read with Sections 420, 467, 468, 471 of the I.P.C., apart from Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and it is on that basis, the sanction order came to be passed. 24. Likewise, in respect of the writ petition in W.P.No.10569 of 2010, the impugned sanction order states that the petitioner while working as Senior Manager, IOB, T.Nagar Branch from 2001-2002 has entered into agreement with Shri.T.S.R.Vasudevan, Proprietor of M/s.Lalitha Oils, S/Shri.C.Manohar Naidu, R.Muthaiyan, P.Thanigaivelan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to have committed offences punishable under Section 120-B read with Sections 420, 419, 467, 468, 471 of the I.P.C., apart from Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. As stated above, in respect of the writ petitioner, earlier, the General Manager, on the said materials has declined to grant sanction and subsequently, on the CBI approaching the Chairman cum Managing Director, the said stand was reiterated and it was thereafter, the General Manager has granted the impugned sanction order based on the same reasons. 25. Insofar as it relates to the contention raised by the learned Senior Counsel for the appellant as well as the petitioner that the Sanctioning Authority cannot change its opinion and, in fact, there is no power of review available, now the law is well settled that the power of review to the Sanctioning Authority is available, provided that new materials have come to the lime light. While dealing with Section 197 of the Criminal Procedure Code contemplating sanction to prosecute, the Hon'ble Apex Court in the State of Himachal Pradesh V. Nishant Sareen, AIR 2011 Supreme Court 404 has held that the power of the Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any impediment to adopt such course. 26. Therefore, legally it is settled that the power of review is possible only when there is an express provision enabling the Authority to review the earlier stand. It is equally settled that in respect of the grant of sanction to prosecute, when once on certain materials the Sanctioning Authority decides not to grant sanction, certainly on the same materials, the Sanctioning Authority cannot change its opinion. 27. It cannot be said that the sanction order is not an order, as stated by the Hon'ble Apex Court. As reiterated by the Hon'ble Apex Court, the sanctioning order is a statutory order. A statutory order has got a legal force and that is the basis for starting the prosecution against the delinquent officer and therefore, it cannot be lightly taken up. It was held as early as in the year 1984 in R.S.Nayak V. A.R.Antulay, (1984) 2 SCC 183 that granting sanction to prosecute is a sacrosanct act. In that case, the Hon'ble Supreme Court has dealt with Section 6(1) of the Prevention of Corruption Act, 1947, which is in pari materia with Section 19(1) of the Prevention of Corruption Act, 1988. The Hon'ble Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether on the facts alleged, there has been an abuse or misuse of office held by the public servant. That authority would be in a position to know what was the power conferred on the office which the public servant holds, how that power could be abused for corrupt motive and whether prima facie it has been so done. That competent authority alone would know the nature and functions discharged by the public servant holding the office and whether the same has been abused or misused. It is the vertical hierarchy between the authority competent to remove the public servant from that office and the nature of the office held by the public servant against whom sanction is sought which would indicate a hierarchy and which would therefore, permit inference of knowledge about the functions and duties of the office and its misuse or abuse by the public servant. That is why the Legislature clearly provided that that authority alone would be competent to grant sanction which is entitled to remove the public servant against whom sanction is sought from the office. Therefore, the contention of Mr. N.G.R. Prasad and Mr. N. Chandrasekar, learned counsel for the respondents that sanctioning order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be prosecuted. They can refuse sanction on any ground which commends itself to them, for example, that on political or economic grounds they regard a prosecution as inexpedient. Looked at as a matter of substance it is plain that the Government cannot adequately discharge the obligation of deciding whether to give or withhold a sanction without a knowledge of the facts of the case. (emphasis supplied) 16. In Basdeo Agarwalla v. Emperor, AIR 1945 FC 16, it was pointed out that sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. This Court in State through Anti-Corruption Bureau, Govt. of Maharashtra v. Krishanchand Khushalchand Jagtiani, (1996) 4 SCC 472 while considering the provisions of Section 6 of the Act held that one of the guiding principles for sanctioning authority would be the public interest and, therefore, the protection available under Section 6 cannot be said to be absolute. 17. Sanction lifts the bar for prosecution. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Constitution for a writ in the nature of mandamus directing the State Government to grant sanction. In this petition, the Secretary of the Department who, originally was not impleaded, was, subsequently, arrayed as Respondent 7 and a direction was issued to him to grant sanction and the Secretary, acting in pursuance of the order of the High Court, granted the sanction. 21. The question is whether the High Court could issue a mandamus of this nature and whether the order of sanction, in these circumstances, is valid. 22. Mandamus which is a discretionary remedy under Article 226 of the Constitution is requested to be issued, inter alia, to compel performance of public duties which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. Statutory duties, if they are intended to be mandatory in character, are indicated by the use of the words shall or must . But this is not conclusive as shall and must have, sometimes, been interpreted as may . What is determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the scheme of the statute in which the duty has been set out. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch again relates to the sanction under Section 197 of the Code of Criminal Procedure. It was held that the sanction under Section 19(1) of the Prevention of Corruption Act, 1988 does not go into the root of jurisdiction, while it is altogether different under Section 197 of the Code of the Criminal Procedure. The Hon'ble Supreme Court has differentiated the two statutes holding that they are absolutely different. Ultimately, the Hon'ble Supreme Court has held as follows: 10.It may be noted that Section 197 of the Code and Section 19 of the Act operate in conceptually different fields. In cases covered under the Act, in respect of public servants the sanction is of automatic nature and thus factual aspects are of little or no consequence. Conversely, in a case relatable to Section 197 of the Code, the substratum and basic features of the case have to be considered to find out whether the alleged act has any nexus to the discharge of duties. Position is not so in case of Section 19 of the Act. In fact, in the said judgment by referring to the earlier decision in Parkash Singh Badal and another Vs. State of Punjab and others, (2007) 1 SCC 1, the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s initially placed before the Minister of Law who refused to accord sanction after applying his mind to the entire materials and an order to that effect was passed. Subsequent to the same, the appellant retired in the year 1994 and it is only in 1997, the Chief Minister appears to have passed the impugned order. The appellant assailed the legality of the aforesaid order in the High Court, but the High Court having not interfered, he has approached this Court. It is contended on behalf of the appellant that no fresh materials were collected subsequent to the earlier order refusing to sanction prosecution and the appropriate authority having applied its mind and having passed the said order, the subsequent order was wholly uncalled for and unjustified. In the counter-affidavit filed by the State, it has been indicated that before passing the earlier order, the matter had not been referred to the Chief Minister who was the competent authority and, therefore, when the matter was referred to the Chief Minister, the Chief Minister having passed the order there is no infirmity with the order of sanction in question. He also produced the relevant file before us to indicate as to how the fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Credit Limit has been given by the appellant without proper verification of the borrower's status and that the appellant blindly accepted the valuation of nearly ₹ 1.31 Crores, while the property was registered with the Sub-Registrar for a sum of ₹ 2.55 lacs, nine months prior to the date of valuation. The following points which have been insisted by the CVC to the Bank as seen in the letter dated 03.09.2009 are once again extracted hereunder with the risk of repetition: 1.The Bank has lost substantial money by entering into One Time Settlement with the party. 2.In one of the accounts, there is still an outstanding of ₹ 77.46 lakhs which is likely to result in loss to the Bank. 3.The member has chosen to sanction packing credit limits of ₹ 95 lakhs each to four borrowers without proper verification of KYC of the borrowers concerned and CBI has been able to establish the link between these four parties and Mr.G.D.Bansal. 4. The member has accepted the valuation of nearly ₹ 1.31 crores for a property which was registered with Sub-Registrar for a sum of ₹ 2.55 lacs nine months prior to the date of valuation. In this case, Bank was a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
