D V DMONTE Vs. CENTRAL GOVERNMENT

JUDGEMENT

(1.) This revision comes before us on a reference by a learned Judge of this Court. The important question of law agitated before us is whether a complaint filed against an accused, who had ceased to be a public servant on the date the Court took cognisance of the complaint, is bad for want of sanction under S.6 of the Prevention of Corruption Act, 1947, for short the Act, if the said accused is directed to be reinstated in service during the course of the trial setting aside the original order of removal.

(2.) For a better appreciation of the question of law involved, it is necessary to briefly state the facts of the case. The petitioners, who are three in number, are the accused in C.C. No. 5 of 1970 before the Special Judge, Ernakulam. The 3rd petitioner, hereinafter referred to as the 3rd accused, was an appraiser in the Customs Department at Cochin from 1960 onwards. The charge against him is that he entered into a conspiracy with accused 1 and 2 and in furtherance of this conspiracy, committed various offences. All the three were charged for offences punishable under S.120B, 420, 471 and 468 read with S.34 I.P.C.; S.167(72) of the Sea Customs Act and S.5(2) read with S.5(1)(d) of the Prevention of Corruption Act. Disciplinary proceedings were taken against the 3rd accused and after due enquiry he was removed from service with effect from 7-8-1967 by the Collector of Customs. Before filing the chargesheet in the criminal case, with which we are concerned here, sanction under S.137(2)(b) of the Customs Act, 1962 was obtained. No sanction under S.6 of the Prevention of Corruption Act was obtained. The stand taken by the prosecution is, that on the day the charge sheet was filed and the Court took cognisance of the case, the 3rd accused had ceased to be a public servant since he had been removed from service before that date. The order of the Collector of Customs removing the 3rd accused from service is dated 5-9-1967 while the cognisance of the case was taken by the Special Judge on 14-10-1970. The 3rd accused preferred an appeal before the President of India on 18-10-1967 against his removal from service. After consulting the Union Public Service Commission, an order was passed by the President of India on 25-9-1974 allowing the appeal and setting aside the order of removal from service passed by the Collector of Customs and Central Excise, Cochin, and the 3rd accused was ordered to be reinstated in service. The period of absence from 5-9-1967 till the date of reinstatement was directed to be treated as under suspension. The appeal was allowed on the ground that the charge sheet served by the Disciplinary Authority was defective. The Disciplinary Authority was directed to institute de novo proceedings against the 3rd accused after rectifying the defect in the chargesheet. After this order, the 3rd accused was reinstated in service and posted to Madras Customs House.

(3.) The question agitated before us by the learned counsel for the petitioners is that the order passed by the President setting aside the order of removal passed by the Collector of Customs acquitting the 3rd accused and directing his reinstatement operates retroactively and renders the original order a nullity, and therefore, the petitioner should be deemed to be in continuous service from the date of his removal. Therefore, it is contended that a trial without sanction under S.6 of the Act is vitiated. The contention is that the order of acquittal amounts to a declaration that the order of removal on 5-9-1967 is by virtue of a void order. We will examine this question presently.