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High Court of Judicature at Bombay
V.M. KANADE & P.D. KODE, JJ.
E.S. Sanjeeva Rao
Versus
Central Bureau of Investigation)(C.B.I.), Mumbai & Others
CRIMINAL WRIT PETITION NO. 2637 OF 2010
Decided on : 02-05-2012
If a public servant, accepts a bribe and commits cheating or criminal breach of trust then no sanction for his prosecution required. - Section 197 of the Criminal Procedure Code lays down that sanction to prosecute has to be obtained against the public servant. The Apex Court has in several judgment interpreted the said provision and has held that acceptance of a bribe or cheating or criminal breach of trust is not part of the official duty of a public servant and if he accepts a bribe and commits criminal breach of trust then it cannot be said that he is acting in the discharging of his duty and, therefore, in such cases, the question of taking sanction to prosecute does not arise. Similarly, in cases where a public servant commits murder or such other offence, it cannot be said that he is acting in the discharge of his official duty and, therefore, the question of obtaining sanction does not arise. The Apex Court has accordingly interpreted the term "discharge of official duty" in number of judgments.
EMPLOYEES PROVIDENT FUND AND MISCELLANEOUS PROVISIONS ACT, 1952 - Section 7-A - Judges (Protection) Act, 1985, Section 3(2) - Indian Penal Code, 1860, Section 77 - Protection under Penal Code and Act, 1985.
Protection, as envisaged under Section 77 of Code and Section 3(1) of Act, 1985 is available to officer who passes an order under Section 7-A of Act, 1952.
Judges (Protection) Act, 1985 - Section 3(1) - Indian Penal Code, 1860, Section 77 - EPF & MP Act, 1952, Section 7- A - Protection under IPC and Act, 1985.
Since Regional Provident Fund Commissioner, passing an order under Section 7-A of Act, 1952 falls in category of a "Judge" hence entitled to protection under Code and Act, 1985. - Regional Provident Fund Commissioner, is empowered by law under Section 7-A in a case where a dispute arises regarding the applicability of the Act to establishment, decide such dispute and determine the amount due from the employer under the scheme and for the purpose of conducting inquiry he has been vested with same powers as are vested in the Court for trying a suit under the CPC, 1908 and the said inquiry is also deemed to be a judicial proceeding within the meaning of Sections 193 and 228 and for the purpose of Section 196 of the IPC. The said. Order which is passed is appealable and an appeal can be preferred before the Tribunal and the order passed by the Tribunal attains finality under Section 7-N. The said order passed under Section 7-A can also be reviewed under Section 7-B or redetermined under Section 7-C and, lastly, for non-payment of the said amount, the employer can be prosecuted and, penalty can be imposed under Section 14 and recovery also can be made under the procedure laid down under Section 8.
Therefore, though the Officer who passes an order under Section’ 7-A is not termed as a "Judge", he falls within the definition of Section 19 of the IPC as well as Section 2 of the Judge’s (Protection) Act, 1985 since he is empowered by law to determine the amount and decide the’ dispute and the proceeding is, legal proceeding in view of Section 7-A(2) which in terms lays down that the said inquiry shall be deemed to be judicial proceeding and the Officer shall have all the powers which are vested in Court under the CPC for trying the suit and also that the said inquiry is deemed to be a judicial proceeding within the meaning of Sections 193 and 228 for the purpose of Section 196 of the IPC.
The proceeding, therefore, is a legal proceeding and the order which is passed is a definitive order and if the order is confirmed in appeal, it attains finality and on the basis of the said order recovery can be made and the mode of recovery is similar to the execution of decree as laid down under Section 51 of the IPC which is evident from the provisions of Sections 8-A and 8-B.
This being the position, the Officer who passes an order under Section 7-A is entitled to get the protection as envisaged under Section 77 of the Indian Penal Code and Section 3(1) of the Judges (Protection) Act, 1985.
Based on the provided legal document, the key points are as follows:
The order passed by the Regional Provident Fund Commissioner under Section 7A of the Employees Provident Funds and Miscellaneous Provisions Act, 1952, is considered a judicial proceeding because it involves a determination of the amount due from an employer and includes powers similar to those vested in a court for trying a suit (!) (!) .
The order under Section 7A is a definitive, final order that can be executed against the employer, and its finality is attained once confirmed in appeal or after the expiry of the statutory review periods (!) (!) .
The order passed by the Commissioner under Section 7A falls within the definition of a "judge" under relevant statutes, given that he is empowered by law to give a definitive judgment in a legal proceeding, which qualifies him for protection under laws intended to safeguard judicial acts (!) (!) .
The protection granted to such officers under the relevant laws, including the Judges (Protection) Act, and Section 77 of the Indian Penal Code, is applicable when acts are performed in good faith during the discharge of official or judicial duties (!) (!) .
The protection is not absolute; it does not cover acts done outside the scope of official duties or on extraneous considerations, especially if there is material indicating such misconduct or improper influence (!) (!) .
The averments in the FIR, which are based on the judicial order and the calculation of dues, do not constitute an offence if accepted at face value, because they are protected by the legal shield provided to judicial acts (!) (!) .
The FIR’s foundation on the order passed under Section 7A, without any appeal or review, is a strong indicator of malafide intention, and such an FIR can be quashed if it is found to be based on a protected judicial act (!) (!) .
The scope of Sections 3(1) and 3(2) of the Judges (Protection) Act, 1985, indicates that acts performed in good faith within the jurisdiction of a judicial or quasi-judicial authority are protected, but acts outside this scope or on extraneous considerations are not covered (!) (!) .
The protection under these laws is intended to preserve judicial independence, but it is subject to the condition that acts are performed in good faith and within the bounds of jurisdiction (!) (!) .
The legal framework and statutory provisions, including the relevant definitions and protections, support the view that acts performed by officers empowered by law to decide disputes under statutes like the EPF & MP Act are protected from criminal prosecution if done in good faith during their official duties (!) (!) .
The FIR, which is based solely on the order passed under Section 7A and the calculation of dues, does not constitute an offence, especially when no appeal, review, or redetermination has been sought against the order, indicating the absence of malafide intent (!) (!) .
The court emphasizes the importance of harmoniously interpreting statutory provisions to avoid rendering any part of the law redundant, especially regarding protections granted to judicial or quasi-judicial officers (!) (!) .
In summary, the legal document underscores that acts carried out by officers empowered under the relevant statutes, in accordance with their duties and in good faith, are protected from criminal prosecution, and FIRs based on such acts are liable to be quashed.
(Per V.M. Kanade, J.)
1. By this Petition filed under Article 226 of the Constitution of India, Petitioner is seeking a writ, order or direction for quashing and setting aside FIR no. 26(A)/2010 which is registered by the Central Bureau of Investigation for the offences punishable under section 120B read with section 420 of the Indian Penal Code and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (For short "PC Act")
2. Brief facts are as under:-
FACTS
3. Petitioner was initially appointed as Assistant Provident Fund Commissioner in the year 1997 and was later on promoted to the post of Regional Provident Fund Commissioner on 03/02/2005 with effect from 23/10/2003.
4. Sometime in 2008, one Mr. Vijay Patil, President, Maharashtra Kamgar Ekta Union made a complaint to the Petitioner regarding evasion of employees provident fund contribution of 2000 employees of M/s Pratibha Industries Limited. An inquiry was initiated by the Petitioner on the complaint under section 7A of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (For Short "EPF & MP Act") against the establishment during the year 2008. Record was called from the Enforcement Officer, SRO, Vashi under the EPF & MP Act, 1952. Shri D.M. Ambokar, the Enforcement Officer, submitted inspection report on 03/03/2009 stating therein that the EPF dues of M/s Pratibha Industries Limited were to the tune of Rs 6,72,455/-for the period October, 2003 to January, 2009 and this was on account of non-payment of provident fund contribution in respect of 475 non-enrolled workers of the Company. Relying on this report, Petitioner passed the order under section 7A on 20/03/2009 for the aforesaid period.
5. According to the Petitioner, Respondent - CBI and its Officers - Respondent Nos. 2 and 3 scrutinized the assessment order passed by the Petitioner in the matter of M/s Pratibha Industries Limited and came to the conclusion that the order passed by the Petitioner was wrong and it must have been passed to favour M/s Pratibha Industries Limited. According to the Petitioner, Respondent No.3, who was the Deputy Director (Vigilance) raided the Sub- Regional Office at Vashi and seized 15 files relating to the construction industries from the Vashi Office without informing the Petitioner and the raid continued for about three days and 15 files were carried away on 13/09/2008 by the said three Assistant Directors (Vigilance) at around 8.00 P.M. Copies of seized files were not left in the Office. The seizure memo was made dated 13/09/2008.
6. Thereafter, on 08/04/2009, Respondent No.3 sent one Rayappa, Assistant Director (Vigilance) to the Petitioner's Vashi Office calling for the file related to M/s Pratibha Industries Ltd. The Petitioner wrote a letter dated 20/04/2009 to the Central Provident Fund Commissioner informing him about the unwarranted action by Respondent No.3. There was correspondence thereafter between the Petitioner and the Central Provident Fund Commissioner. He also met him personally and made a grievance about the functioning of the Vigilance Wing of EPFO. Thereafter, Respondent No.3 came in the Office of the Petitioner at Vashi in May, 2009 and informed that there was complaint of non-enrollment of workers which was filed with Respondent No.1. A copy of the complaint was not given to the Petitioner. A fictitious complaint was filed against the Petitioner by one Suren Nayak. A Committee was constituted to inquire into the said complaint which came to the conclusion that the said Suren Nayak was a fictitious person. Even, thereafter, according to the Petitioner, harassment by Respondent No.3 continued. He, therefore, filed a complaint with the Central Provident Fund Commissioner dated 17/07/2009. Petitioner was then transferred to the Regional Office, Thane. Petitioner wrote a letter dated 05/10/2009 to Respondent No.3 to submit the material available with Respondent No.3 with regard to the alleged left over employe
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