G S MATHARAOO Vs. C B I

JUDGEMENT

(1.) THE grievance of the Petitioner in the present petition is to the incompetency of the authority granting sanction for prosecution against him for offences under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act (POC Act) in RC EOU-1 2005 A 0005 and thus the initiation of proceedings against the Petitioner is illegal and void ab initio be set aside.

(2.) LEARNED counsel for the Petitioner contends that in terms of the Regulations as empowered to be framed under Section 480 of the Delhi Municipal Corporation Act, 1957 (in short "DMC Act"), the authority competent to remove the Petitioner is the Corporation, however, in the case of the Petitioner the sanction has been granted by the Commissioner, MCD, who is not the authority competent to remove him. He further contends that as per Section 2(7) of the DMC Act, "Corporation" means the Municipal Corporation of Delhi established under the Act. Section 44 provides for the municipal authorities for the efficient performance of the Corporation and the Commissioner, MCD is one of the authorities. Section 59 of the DMC Act provides for the functions of the Commissioner and the main function of the Commissioner is executive in nature. Section 59(d) of the DMC Act provides that subject to any Regulation that may be made in this behalf, the Commissioner will be the disciplinary authority in relation to all municipal officers and other municipal employees. Section 95 of the DMC Act further provides that an employee can be removed by such authority as may be prescribed by the Regulations. Thus, on a conjoint reading of Section 59(d) and Section 95 of the DMC Act, the power of the Commissioner to be the disciplinary authority of the employees of the Corporation is subject to Regulations. In terms of Section 92, DMC Act, the Commissioner, MCD does not have unbridled power of being the appointing authority of all municipal officers and municipal employees as the same is subject to Section 89 and the Standing Committee or its delegatee is the appointing authority of municipal employees under Group "B" and "C" below the Municipal Secretary or the Municipal Chief Auditor. It is stated that in exercise of said power under Section 480 of the DMC Act, under Regulation 7 vide Notification dated 15th December, 1976 the authority competent to impose all penalties for Group "A" posts is the Corporation and the Central Government is the appellate authority. Only minor penalties against Group "A"employees can be imposed by the Deputy Commissioner and for the said purpose the Commissioner is the appellate authority. It is contended that the Petitioner is a Group "A" employee and thus, the only authority competent to remove him is the Corporation. The Corporation being the authority competent to remove the Petitioner, the sanction for prosecution under Section 19 of the POC Act could be granted only by the Corporation. Relying upon Ajay Gandhi and another v. B. Singh & Ors, 2004 II AD (SC) 169 it is contended that admittedly even the MCD is of the opinion that the Regulations are in vogue and in view of the principle of contemporaneaexpositio, it has to be interpreted that the Regulations are still applicable after the amendment in the DMC Act. Reliance is also placed on State of Goa v. Babu Thomas, 2005 (8) SCC 130 and VirenderPratap Singh v. State of UP, 1991 Cri.LJ 1964 to contend that in case the sanction is granted by an incompetent authority, the High Court in exercise of its jurisdiction under Article 227 of the Constitution and Section 482 Cr.P.C. will quash the order of cognizance as the same is void ab initio. Reliance is also placed on ChittranjanDas v. State of Orissa, 2011 (7) SCALE 461 and RadheyShyam Pandey v. State of Jharkhand, 2011 INDLAW JHKD 325.

(3.) THE issue that falls for consideration in the present petition is whether the Commissioner, MCD is the authority competent to grant sanction for prosecution of the Petitioner in terms of Section 19 of the POC Act. Before adverting to this issue, it is essential to address whether this Court in a petition under Section 482 Cr.P.C. should decide on the competency of the sanctioning authority or leave it to be decided during trial.