K. S. Dharmadatan vs Central Government

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1979 Supreme(SC) 279

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND P.S. KAILASAM, JJ.
K. S. Dharmadatan, Appellant
Versus
Central Government and others, Respondents.
Criminal Appeal No. 362 of 1975, D/- 1-5-1979.
Advocates appeared
Mr. S. Govind Swaminandham, Sr. Advocate (M/s. A. V. Rangam and N. S. Sivam, Advocates with him), for Appealant; Mr. Soli J. Sorabjee, Addl. Sol. Genl. (M/s. R. N. Sachthey and E. C. Aggarwal, Advocates with him), for Respondents.

Advocates:
A.V.RANGAM, E.C.AGARWAL, J.V.S.SIVARN, R.N.SACH, S.GOVIND SWAMINATHAN, SOLI J.SORABJI

Headnote:
Indian Penal Code, 1860 – Sections 120, 420, 471, 468, 34 – Sea Customs Act – Section 167 (72) Prevention of Corruption Act – Sections 5, 6 – Removal from Services – Reinstatemnt – Appellant was being prosecuted for offences under Ss. 120B, 420, 471 and 468 read with S. 34, I.P.C. , Sec. 167 (72) of the Sea Customs Act and S. 5(2) read with S. 5 (1) (d) of the Prevention of Corruption Act. – At the time when the charge-sheet was filed and the Special Judge took cognizance against the appellant sometime in Oct., 1970 the appellant ceased to be a public servant, and, thereofore, no sanction under S.6 of the Prevention of Corruption Act was obtained. – It appears that in pursuance of a departmental enquiry held against the appellant he was charge-sheeted and ultimately dismissed by the appointing authority. Thereafter, the appellant filed an appeal before the President of India against his removal from service. – After consulting the Union Public Service Commission the President by his order allowed the appeal and set aside the order of removal from service passed by the Collector of Customs against the appellant. – Order of the President further directed that the period of absence from 5-9-1967 till the date of reinstatement was to be treated as under suspension. – Appeal appears to have been allowed by the President mainly on the ground that there was some defect in the charge-sheet served by the disciplinary authority. – Disciplinary authority was directed to institute de novo proceedings against the appellant after rectifying the defect in the charge-sheet. – While these proceedings before the President were going on, the trial against the appellant proceeded to its logical end and we now understand that evidence has already been led and the arguments have to be heard. – Appellant on being reinstated by the President filed an application before the Special Judge praying that all further proceedings be dropped inasmuch as the prosecution against the appellant was initiated in the absence of a proper and valid sanction having been obtained under S. 6 of the Act. – Special Judge, however, rejected the petition as a result of which the appellant moved the High Court but was not successful there. – Held, It is well settled that deeming fiction should be confined only for the purpose for it is meant – In the instant case, the order of the President reinstating the appellant and creating a legal fiction regarding the period of suspension must be limited only so far as the period of and the incidents of suspension where concerned and could not be carried too far so as to project it even in cases where actions had already been taken and closed – In other words, the position seems to be that at the time when actual cognizance by the Court was taken the appellant had ceased to be a public servant having bee removed from service – If some years later he had been reinstated that would not make the cognizance which was validly taken by the Court in October, 1970 a nullity or render it nugatory so as to necessitate the taking of a fresh sanction – Court, therefore, entirely agree with the view taken by the High Court that in the facts and circumstances of the present case legal fiction arising out of the Presidential Order cannot be carried to nullify the order of cognisance taken by the Special Judge – Argument of the learned counsel for the appellant is, therefore, overruled – No other point was pressed before court – Appeal being without merit is accordingly dismissed – Special Judge would now hear the arguments of the parties and dispose of the case as expeditiously as possible – Let the records be sent back to the Special Judge immediately – Appeal Dismissed

Judgment

FAZAL ALI J.:-This appeal by special leave is directed against the judgment and order of the High Court of Kerala dated 11th July, 1975 dismissing a criminal revision petition filed by the appellant before the High Court.

2. The point involved in the present appeal lies within a very narrow compass. The appellant was being prosecuted for offences under Ss. 120B, 420, 471 and 468 read with S. 34, I.P.C. , Sec. 167 (72) of the Sea Customs Act and S. 5(2) read with S. 5 (1) (d) of the Prevention of Corruption Act. At the time when the charge-sheet was filed and the Special Judge took cognizance against the appellant sometime in Oct., 1970 the appellant ceased to be a public servant, and, thereofore, no sanction under S.6 of the Prevention of Corruption Act (hereinafter referred to as the Act) was obtained. It appears that in pursuance of a departmental enquiry held against the appellant he was charge-sheeted and ultimately dismissed by the appointing authority. Thereafter, the appellant filed an appeal before the President of India on 18-10-1976 against his removal from service. After consulting the Union Public Service Commission the President by his order dated 25-9-1972 allowed the appeal and set aside the order of removal from service passed by the Collector of Customs against the appellant. The order of the President further directed that the period of absence from 5-9-1967 till the date of reinstatement was to be treated as under suspension. The appeal appears to have been allowed by the President mainly on the ground that there was some defect in the charge-sheet served by the disciplinary authority. The disciplinary authority was directed to institute de novo proceedings against the appellant after rectifying the defect in the charge-sheet. While these proceedings before the President were going on, the trial against the appellant proceeded to its logical end and we now understand that evidence has already been led and the arguments have to be heard.

3. The appellant on being reinstated by the President filed an application before the Special Judge praying that all further proceedings be dropped inasmuch as the prosecution against the appellant was initiated in the absence of a proper and valid sanction having been obtained under S. 6 of the Act. The Special Judge, however, rejected the petition as a result of which the appellant moved the High Court but was not successful there.

4. The only point raised by the appellant before the High Court as also before us was that in view of the order of the President reinstating the appellant retrospectively, the appellant must be deemed to be in service with effect from the date from which the departmental proceedings were started against him, and, therefore, he would be a public servant at the time when cognizance was taken by the Special Judge, and as no sanction under S. 6 of the Act was obtained, the entire proceedings became void ab initio. Mr. Sorabjee appearing for the respondents has submitted that admittedly and factually at the point of time when the Special Judge took cognizance of the case on 14-10-1970 the appellant having been dismissed from service was no longer a public servant, and, therefore, S. 6 of the Act had no application. Section 6 of the Act runs thus :

"6 (1) No Court shall take cognizance of an offence punishable under Sec. 161 or S. 164 or S. 165 of the Indian Penal Code, or under sub-sec. (2) or sub-s. (3A) of S. 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction :

(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the State Government or of the Central Government;

(b) in the 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 Central Government or of the State Government;

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1979 Supreme(SC) 279

Cases Referred (6)