1997 Supreme(Guj) 153

Gujarat High Court
Judgename :D.G.Karia, K.J.VAIDYA
DIVISIONAL CONTROLER GUJARAT STATE ROAD TRANSPORT CORPORATION - Appellant
Versus
STATE OF gujarat - Respondent
MISC.CRI.APPLN. 471 of 1997
Decided On : 03/17/1997

Headnote:(a) Rule of Law — How caught & surrounded by stormy cyclonic winds — A graphic analysis of facts & circumstances — Stated.

       The "Rule of Law" to quite some large extent has been caught surrounded by the stormy cyclonic winds of gross misconduct, indiscipline and abuse of power demonstrating the `Rule of Utter Lawlessness by some top Government officials dangerously blowing across the public administration violating, may rooting out the law at their sweet will, whims and caprice suiting to their selfish exigencies and expendiencies helping out the accused releasing them from the clutches of law ! Now, taking into consideration the startling fact that in some serious cases wherein after the sanction was granted, the corruption cases against some influential public servants came to be withdrawn at the instance of the Home Department in the name of State, leaves no manner of doubt that to the said extent the torch of "Rule of law" stands extintguished in the State of Gujarat ! This is simply unbelievable yet when brought to the notice, on seeing it one has got to believe it ! It is under these demoralizing circumstances that this Court, as a Constitutional Functionary, has been constrained and called upon to decide the points raised hereunder to save, protect "Law", the "Rule of Law" and ultimately thereby "Democracy", for which our hundreds and thousands of our forefathers had laid down their precious lives at the alter of independence struggle to win freedom !

       [Para 1]

       Court hopes that whatever has been brought on the record is a tip only and not the tip of the ice-berg ! As said by SOLON- Laws are like spiders webs; if some poor weak creature come up against them, it is caught; but a bigger one can break through and get away." In such a darkest hour of the crisis of integrity in the public administration, throwing the "Rule of Law" to the winds, if we also remain passive spectator, that may, in the first instance, strengthen the belief that `Law governs the poor and weak and the rich and influentials govern the law. Small talati or clerk or peon taking bribe of Rs. 10/= or so can be prosecuted and tried, and big shots can be saved and protected, and in the second instance, be the dooms day for the law and constitution for which we as a constitutional functionaries have taken oath to uphold and protect the same without fear or favour at any cost. Having come to know this shocking, shameful state of affairs, not to nip this in a bud, it will spoil and destroy the culture of "Rule of Law" and "Democracy" which we as a High Court are bound to take care of, else it may leave behind the guilty feelings of accomplice of and alongwith the law breakers. With this background of unpleasant scenerio, we are afraid to quite some extent that the unavoidable observations made on the pages of this judgment are more or less on the verge of vote of no confidence against the concerned officers of the State, involved in an episode of playing foul with law ! All these unavoidable observations naturally arises out of the uncontroverted shocking facts-situation undermining the `Rule of Law.

       [Para 1]

       (b) Criminal Trial — Sanction for prosecution in corruption cases — Delay can not be excused under pretex of inter departmental disputes — On the contrary same may amount to contempt of the Court.

       Under the clever pretext and/or cover of two departments being part and parcel of the Government set-up, on such vital issues like delay in granting sanction and/or withdrawal of the same and for that purpose withdrawl of prosecution cases against the accused can not be said to be mere inter-departmental dispute. In a way, this can as well amount to the contempt of the court also, obstructing the course of justice by preventing the material collected by the Investigating Agency duly sanctioned from being placed before and tried by the competent court. When in number of cases under the Corruption Act on the one hand issuance of Circular by the Government and thereafter on the other hand reminders by the Director, ACB if the competent authority does not pass appropriate order of sanction within two months time and/or thereafter even if sanction is granted, but is withdrawn and in some cases, even chargesheet to be withdrawn regarding which the petitioner has drawn attention of the concerned Department, no blame can be placed at the door of the petitioner Director of Anti-Corruption Bureau. The wilful default in enforcement of law when that crisis of character and integrity is the issue, that can never be equated with mere simplicitor departmental disputes, as no body has indeed any right to back- stab, defuse and not to enforce the law enacted by the Parliament.

       [Para 8.1A]

       (c) Rules of Business — Binding force — Good as far as not in direct conflict with the Law & Constitution — Same can be exploited to provide shelter to illegal & unconstitutional acts of however high a person may be — As no man is above Law & Constitution.

       May be, by virtue of `Rules of Business, any Head of the Department or the officers at the respective stages in ordinary lawful routinal matters, ordinarily, would be bound to uphold and carry out the commands and orders of the higher-ups and for that purpose even that of the Minister, but in cases of some patent, unconstitutional and persistent breaches of law, passing palpably wrong and illegal orders or not passing proper orders according to law within the time, setting at naught the investigation of the case by withdrawing the cases is something which can not be permitted because in the given case if ultimately it is the Ministers who has passed the order, he having also taken oath to act according to law and Constitution not authorised to pass illegal, unconstitutional orders contrary to the oath he has taken. In this view of the matter, `Rules of Business are good as far as they are not in direct conflict with the law and constitution and properly repects the same. But moment the respect for law and Constitution comes to an end, the authority of concerned and for that purpose the duty officers also comes to an end. The `Rules of Business can not provide shelter to the illegal and unconstitutional acts of howsoever high a person may be, as he is not and cannot be above law and the constitution ! If this is permitted, it would simply amount to putting the clock of law back and the justice denied thereby, denying the promise of the Constitution.

       [Para 8.1-A]

       Court shall not allow anybody to humiliate and back- stab the law enacted by the Parliament illegaly letting-off the accused of the hook and clutches of law. We make it further clear that the defence of having acted or passed any order by virtue of the binding effect of Rule of Business would not be available to them. No rules of business can ask subrodinate to do or act in any manner against the law and constitution. Further when ordinarily the orders are passed in strict confidentility in chambers and action taken pursuant thereto, no body outside the government would ever know or if knows then so soon to challenge the same to save the law and rule of law before the court. Accordingly, it is in view of this constraint also rules of business cannot be permitted to provide umbrella to illegal unconstitutional things.

       [Para8.1A]

       (d) Vigilance Manual — Provision under Sub-paras (vi) & (vii) of Para 4 of the Manual — Whether ultra vires to provisions of corruption Act more particularly Sec. 19 of said Act — Held, provisions under Vigilance Manual makes serious inroads on the power of statutory functionary viz competent authority which amounts violation of the provisions contained in Secs. 13, 17 & 19 of the Act — Contention that vigilance Commission was acting in a limited advisory capacity & its advice is not binding stands self condemned — That apart to grant sanction or withhold sanction depends on subjective satisfaction of competent authority under the Act which could not be subjected to any advice — Held, Sub-paras (vi) & (vii)(a) of Vigilance Manual being indirect conflict overriding statutory powers under Secs. 7, 13, 17 & 19 of Act, they are declared ultra vires.

       It is clear that no authority for that purpose even the Vigilance Commission has any right to advice the sanctioning authority in the matter of granting sanction, as discretion to grant sanction is exclusively and absolutely vested in the sanctioning authority. We are governed by `Rule of Law i.e. whatever is required to be done, that can be done in the manner and way prescribed under the law and under only and only by the particular authority so entrusted with that particularly with duty. No person or authority howsoever high he may be, has any discretion or privilege to impose himself and carry out its wishes or orders unless it is backed by the statute. This being the ultimate position, the State Government has indeed no business to have any backdoor-entry over-riding the statutory functionaries and accordingly anything done to the contrary by framing rules or passing the resolution, orders, withdrawing sanctions, cases filed before the Court, etc. etc. are ex-facie ultra-vires of the Act, redundant, non-est and nullity to the said extent.

       [Para 10]

       Under the Corruption Act once the competent authority has been vested with the special power of sanction, with all wisdom at the command of the Legislature, then it is none of the business of any of the authority to make inroads by asking the ACB to forward the final report before the sanction is granted. Yes, a case can not be ruled out where in a given case wherein despite definite allegation where the sanction was must and accordingly required to be granted and still the same was not granted then in that case, if ACB brings it to the notice of the Vigilance Commission, that despite tell-tale day light clear facts, the sanctioning authority was delaying or not granting or the Government had withdrawn the sanction then that would certainly stand on altogether different footing. Here in such cases, the Vigilance Commission has to play quite positive and the effective role to take appropriate action against the concerned sanctioning authority who has acted illegally because this clearly falls within the perview of the Vigilance Manual. Likewise, para 4 (vi); 4 (vii) (a) also makes serious inroads on the powers of the statutory functionary viz., competent authority under section 19 (i) (c) of the Act. In this view of the matter any attempt on the part of the Vigilance Commission under the guise of acting under advising capacity to foist its authority upon the statutory functionaries under the Corruption Act amounts to clear inroad and violation of the provisions contained in Sections 13,17 and 19 of the Corruption Act.

       [Para 10.6]

       In view of the aforesaid discussion, sub-paras (vi) & (vii) (a) of the Vigilance Manual being in direct conflict over-riding statutory powers under Sections 7, 13, 17 and 19 of the Corruption Act, they are hereby declared to be ultra vires.

       [Para 12.2]

       (e) Prevention of Corruption Act, 1988 — Sec. 19 — Sanction for prosecution — Delay in according sanction — Direction to pass appropriate orders for sanction with in two months & comply with directions given in State of Gujarat vs. M.M. Damor or to render liable for departmental action.

       Court accordingly, by this judgment hereby direct all the competent authorities under section 19 of the Corruption Act to strictly comply with firstly the circulars issued by the Government to avoid delay and pass appropriate order for sanction within two months and secondly to comply with the direction given by this court in a decision rendered in case of State of Gujarat vs. M.M. Damor, (1996) 2 GLH 782 failing which, they shall be held liable for the departmental action and also for contempt of court proceedings and the resultant punishment. We also thirdly further direct that while forwarding the draft memo of the sanction, the Director ACB and or the Investigating Officer shall bring it to the notice of the concerned competent authorities the possible departmental and contempt proceedings for their wilful default in not complying with the directions just given above. Be it a case under the Corruption Act, and/or for that purpose any other Acts, where without the necessary sanction to prosecute, the Court cannot take cognizance of an offence, it shall be the duty of the Sanctioning Authority to expeditiously consider the same and pass appropriate orders.

       [Para 14.1]

       (f) Vade Mecum — Sanctioning authorities — Expectations where without the necessary sanction to prosecute the court can not take cognizance of an offence — Duties & directions — Stated.

       The sanctioning authority must always and invariably remember that they are the creature of the statute and are expected to respect and serve the law which has created, empowered and bestowed the honour giving them the statutory identity and existence as statutory functionaries. Accordingly, the sanctioning authority is bound to know and understand one most important thing by heart that it is a statutory functionary first. The Parliament has vested important discretion to grant or not to grant sanction under the Corruption Act in him only. None other howsoever high he may be, has any right, power to dictate and influence him !! He accordingly is accountable to the Parliament, to the cause of people first and not to any higher ups sitting in the Secretariat, including the Vigilance Commission (except for the limited purpose where it has been pointed out by the Director, ACB or the Investigating Officer that despite the fact that investigation papers constitute an offence under the Corruption Act, with ulterior motive sanction was not granted by the concerned statutory authority or for that purpose, even the Minister). and accordingly, we hope and trust, and further, direct that henceforth whenever sanctioning authority feels any extraneous pressure, embarassment, he without any fear or favour shall discharge his duty according to the voice of his conscience and mandate of law, towards the object underlying the Corruption Act as boldly and fearlessly as Mr. Joseph has done and discharged his duty in the present case. The sanctioning authority is not supposed to be chicken hearted. perturbed, embarassed, suppressed and succumb to some extraneous illegal and unjust pressures with their respective statutory powers from any higher up and accordingly standing firm and resolute like a rock has to take bold and independent decision, howsoever unpalatable that may be to "that those concerned" in the government with a spirit of `come what may, Not to respect and serve the law where the positive duty obligation is cast upon it to act lawfully under the Act, and succumbing to the dictates of superior officers itself is the corruption of worst type than other forms of corruptions enumerated in the Corruption Act which in turn undoubtedly amounts to grave `misconduct liable to departmentally proceedings with the consequential punishment.

       [Para 15]

       Thus, not to discharge the statutory duty and that too under the Corruption Act is a serious dereliction of duty, gross-misconduct and the corruption worst than any corruption cases enumerated under the Corruption Act. Even taking unduly long time to pass appropriate order regarding the sanction after the receipt of the investigation papers in total definace of various circulars instructing to grant sanction within two months, is also a manifest lack of devotion to duty liable to be punished under the relevant service Act and rules made thereunder. This is over and above the contempt proceedings that this Court may institute

       [Para 15]

       Back to the point of delay in granting sanction, infact, if after forwarding the papers for obtaining sanction, the appropriate order is not received within 15 days, on the 16th day and thereafter every week office of ACB must send reminders to the concerned sanctioning authorities. If sanction does not come at the end of the month, the Investigating Officer should contact the concerned competent authority and personally hand deliver the reminder and request him when should he come or send his subordinate officer to collect the order regarding sanction. If this is also not responded well, then the Director ACB should report it to the Vigilance Commission, inaction on the part of the sanctioning authority. This is absolutely necessary for quite obvious reasons.

       [Para 16.1]

       (g) Criminal Trial — Corruption cases — Withdrawal of prosecution — Propriety of — Action of withdrawal of prosecution goes to the very root, shaking the very foundation of the Rule of Law — Concerned officer who has misconducted himself in defying the statutory provisions by withdrawing cases in clear violation of the Act deserves to be prosecuted & also departmentaly proceeded with.

       Whatever reasons the concerned officer who has misconducted himself in defying the statutory provisions by withdrawing cases in clear violation of the Corruption Act deserves to be unquestionably prosecuted and also departmentally proceeded with. When as a result of the investigation a case is registered against any person and the law has started taking its due course leading towards the trial, any attempt even to interfere and abort the same and that too by the keepers of the law-law enforcing agency, the same is clearly an aggravated form of the crime, unpardonable. As stated somewhere above, this is clearly an offence under Sec. 186 of the Indian Penal Code which pertains to obstructing public servant in discharge of functions. That shall be the subsequent thing, but before that we hereby direct that the fact of the concerned officers have misconducted themselves, shall be kept in their confidential file to be taken into consideration as hurdle while considering their future promotions and other service benefits.

       [Para 21]

       In such gross cases if the offenders are let off without any punishment, the public administration will never be cleaned up and accordingly further as long as the public administration manned by the big officers is not cleaned, it will go on denying the fruits of independence and the rights guaranteed under the Constitution to the people, while deciding anything on such vital points, strict enforcement of the Rule of law and taking care of the public grievance, the Government is required to bear in mind, that under no circumstances, the Secretary can take shelter under the plea that by virtue of Rule of Business he had no alternative but to succumb to the orders of the Minister by passing the impugned orders. If he does so, he will do so only at his own costs, risk and peril. The reason is none can ever be permitted to do illegal and unconstitutional acts and then taking convenient shelter under the defence that they did so as they had no alternative but to so abide by virtue of Rules of Business. No Rules of Business can ever direct and bind any officer to succumb to illegal and unconstitutional orders. Infact, in any case, whenever illegal and unconstitutional orders are directed to be passed by any superior public servants, he should be clear and forthright enough in unquestionable terms pointing out even pointing out to the Ministers (in a given case) that the proposed recommendations/directions to pass order and or consequential action persuant thereto was illegal and unconstitutional. This should invariably reflect in the nothings in the contemporaneous record.

       [Para 21.1]

       (h) Prevention of Corruption Act, 1988 — Sec. 19 — Sanction to prosecution — Subsequent withdrawal of — No provision in the Act for the Govt. to interfere with the due process of law — Such order of withdrawal of sanction or withdrawal of the prosecution exfacie illegal & unconstitutional & accordingly absolutely nullity & non-est — Question of hearing of accused resulting in violation of principle of natural justice has no relevance.

       When Corruption Act nowhere provides for either withdrawal of sanction or withdrawal of the prosecution-any order subsequently withdrawing sanction to prosecute or the chargesheet being ex-facie illegal and unconstitutional and accordingly is clear and absolute nullity and nonest. When there is no provision in the Act itself, on what basis indeed, the Government can interfere with the due process of law that rising of the statutory right of the Investigating Agency and the sanctioning authority under the Corruption Act frustrating the statute, obstructing its due course to be tried by the Court? This miscarriage of justice is simply unthinkable/unimaginable and unpardonable!! In this view of the matter, since illegal withdrawal of sanction to prosecute or charge sheet and thereby ultimately the case before the Court does not vest any right in accused, there is no question of hearing him!! The withdrawal of sanction, chargesheet etc., are purely at procedural level where accused has indeed no right to say anything at that stage. This aspect, that is to say withdrawal of sanction to prosecute or the cases in which sanction is granted but wherein ultimately the cases are withdrawn are not the cases decided on merit vesting any right in the accused to be heard. Apart this, the principle of Audi part Alterm in other words the principles of natural justice cannot be stretched to such an unreasonable and absurd extent where in name of natural justice.

       [Para 23]

       (i) Administrative Law — Govt. circular dated 13.6.86 — Effecting revocation of earlier circular dated 13.5.85 prescribing procedure to be followed on detecting corruption case — In circular dated 13.6.86 even provision with regard to registering the offence & conducting investigation done away with and procedure prescribed in Govt. Resolution dated 17.4.64 & circulars dated 15.4.66 is required to follow — Held, it is exfacie overriding & in blatant disregard of the provisions of Corruption Act — Hence, declared ultra vires of the Act.

       In the circular dated 13-6-1986, even the provisions with regard to registering the offence and conducting the investigation in the event of a criminal act regarding corruption being detected after preliminary inquiry has been done away with and the procedure as required and prescribed in the Government Resolution dated 17-4-1964 and circulars dated 15-4-1966, is required to be followed. In our opinion, this is ex facie over-riding and in blatant disregard of the provisions of the Corruption Act. This is simply tracherous on the part of executive committing the extra-ordinary breach of trust of Parliament where it was expected to enforce the law with all sincerity of purpose. According to Mr. Shelat, Government has the overall control over the investigation. When the statutory functionary is not exercising powers vested in it or was likely to abuse the power, then in such cases, the Government must see that the concerned officers do not go beyond the statute. Therefore, according to Mr. Shelat, the GR should be taken into consideration and the Court should not strike down the GR at the instance of the petitioner. We are quite conscious of the fact that the GR cannot be considered or cancelled at the request of Mr. Joseph but at the sametime, when the Court finds it on the face of it ultra vires, it is duty of the Court to declare the same as ultra vires. The reason is as a Constitutional functionary, we owe a duty to protect the law enacted by the Parliament and if we are not doing that, we will be failing in our duty, having taken oath under the Constitution.

       [Para 24]

       (j) High Court — Constitutional Functionary — Duty bound to fully protect the Constitution & Rule of Law — Steps to Protect them from infringement of the same — Indicated.

       It can never be disputed that the High Court Judges being the constitutional functionaries, they are indeed duty bound to fully protect the Constitution and the law enacted by the Parliament and to take all possible steps to protect them from the infringement of the same, disrespecting, dishonouring the same. If the Law and `Rule of Law are not protected, and permitted to be trounced having so brought to our notice, it means that we do not want a civilized culture, and once the civilized culture is lost, the net result would be chaos, disorder and anarchy, where might would be right and there would be a `Rule of Jungle ney the `Rule of some dishonest politicians and corrupt bureaucrats replacing the Rule of Law. Under the circumstances, if we as a Constitutional functionaries allow the lawlessness of the type in the present case, committed by concerned higher ups in the Government, it means in other words we ourselves signing death warrant of our own powers nay the Constitution! Let there be no mistake in understanding that the Constitutional powers of the High Court and Rule of Law is invariably and instrincally one and the same either both coexist or face co-destruction. In fact, for this purpose, the first duty of ours is to give direction with a view to see that some such things do not happen in future to the greatest prejudice of the relevant `law and the `Rule of Law.

       [Para 27]