RAJAPPA MENON Vs. UNION GOVERNMENT OF INDIA

JUDGEMENT

(1.) THE petitioner is the fourth accused in C. C. 2 of 1964 on the file of the Special Judge, Trichur and he seeks to revise the order of the Special Judge over-ruling the objection that the court cannot enquire into the offence without the requisite sanction under S. 6 of the Prevention of corruption Act Act 2 of 1947 (shortly stated the Act ). THE petitioner was the assistant Station Master of the Chalakudy Railway Station. He was charged along with some others with offences under S. 120-B I. P. C. , S. 5 (2) read with s. 5 (i) (d) of the Act and S. 420 and 477-A I. P. C. A departmental enquiry was held and the petitioner was dismissed from service on 1910 63. Charge sheet was laid by the Delhi Special Establishment and the learned judge took cognizance of the offence on 30 3 64. No sanction was obtained as the accused had ceased to be a Government servant when the court was called upon to take cognizance of the offence. On 510 63 the petitioner filed an O P. 2141/63 before the High court to quash the order of dismissal and this court allowed the O. P. on 14-7-64 on the ground that there was non-compliance with R. 1713 of the Conduct and Discipline Rules for Railway Servants and quashed the proceedings from the stage at which the Chief Commercial Superintendent had to enter findings relating to the charges. THE matter was taken up in appeal by the Railway administration and the order was confirmed by the Division Bench

(2.) WHAT is contended by the petitioner is that by the judgment in the Writ Petition, his order of dismissal had been quashed, that must be considered as if it never existed and he was Government servant on the date when cognizance of the offence was taken and must be deemed to continue as a Government servant and the Court could not have taken cognizance of the offence and proceeded with the trial of the case without the requisite sanction as contemplated under S. 6 of the Act. S. 6 of the Act says: " (i) No court shall take cognizance of an offence punishable under S. 161 or S. 164 or S. 165 of the Indian Penal Code (Act 45 of 1860), or under Sub-s. (2) 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 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 State Government,. . . (c) in the case of any other person, of the authority competent to remove him from his office. By virtue of this provision if at the time when a Court purports to take cognizance of offences punishable under S. 161,164 and 165 of the Indian Penal Code or S. 5 (2) of the Act committed by a public servant, and that person is a public servant, cognizance cannot be taken by a court unless a sanction by the competent authority has been previously accorded. If the accused had ceased to be a public servant at the time the court took cognizance of the offence alleged to have been committed by him as a public servant the provisions of S. 6 will not apply and the prosecution against him will not be vitiated for lack of previous sanction. This position is not disputed Vide the decision in Venkataraman v. State (A. I. R. 1958 S. C. 107 ).

(3.) LEARNED counsel for the petitioner referred us to the decision in Sahai v. Imam (A. I. R. 1956 Pat. 257 ). That was a case where a copyist was removed from service by the District Judge without issuing a show cause notice before making the order of discharge. There was a clear violation of the principles of natural justice, that no man shall be condemned without giving him an opportunity to be heard and the order was held to be a nullity and the writ of certiorari was issued to quash the order. Likewise in the decision in Ramachandra Vaidya v. State (1963-2 L. L. J. 726), it was held that an action taken in violation of art. 311 (2) would be an action taken without fulfilling the condition precedent to the taking of such action and such action is liable to be treated as void and inoperative and a nullity. Art. 311 (2) provides that no civil servant shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The absence of such a notice is violative of the article of the constitution and the principles of natural justice.