R.S. Sarkaria, J.
1. This appeal by the State is directed against a judgment of the Punjab and Haryana High Court setting aside the conviction of the respondent herein in respect of offences under Sections 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and 161, Penal Code on the sole ground that the sanction for his prosecution had not been accorded by a competent authority.
2. N.C. Tandon, respondent was a civilian in the defence service in the rank of temporary Superintendent Building and Roads, Grade, I. It was alleged that he had accepted illegal gratification of Rs. 300/- from one Brij Bhushan Lal, Contractor on 11-3-1971 as a motive or reward for doing an official act. The Contractor was at the material time doing the construction of main sewers in Chandigarh Cantonment near Panchkula. The respondent's duty was to supervise that construction. The respondent it is alleged, demanded the bribe as a reward for recording correct measurements Brij Bhushan Lal did not, in fact, want to pay the gratification. He therefore informed the Special Police Establishment authorities who on 10-11-1971 trapped the accused and allegedly recovered the tainted money from his possession.
3. The sanction for the prosecution of the accused was accorded by Brig. Naresh Prasad, Chief Engineer, North Western Zone, Chandigarh on 24-6-1971.The Special Judge, Ambala tried and convicted the accused on the aforesaid ges and sentenced him to one years' rigorous imprisonment and a fine of Rs. 1,000/-.
4. Tandon appealed to the High Court.The appeal was heard by a learned Single Judge who held that on 24-6-1971, when Brig. Naresh Prasad Chief Engineer, North Western Zone passed the order of sanction for prosecution, he had under the relevant Rules, no plenary or delegated power to appoint to a post in Class III service and that such a power was delegated to Chief Engineers of Zones for the first time on 141 1972. The learned Judge noted that the authority competent to appoint the accused respondent on 24-6-71, was the Chief Engineer Western Command, Simple, and not the Zonal Chief Engineer. He therefore concluded that the sanction for prosecution of the accused had not been given by the competent authority. On this short ground, the High Court allowed Tandon's appeal, without going into the merits of the case.
5. At the outset we may notice the general principles which govern the sanction for prosecution in such cases.
6. Sub-section (1) of Section 6 of the Prevention of Corruption Act says:
No Court shall take cognizance of an offence punishable under Section 161 (or Section 164) or Section 165 of the Indian Penal Code, or under Sub-section (2) (or Sub-section (3A) of Section 5 of this Act, alleged to have been committed by a public servant, except with the previous sanction of the authorities enumerated in Clauses (a),(b) and (c) of that section.
7. Sub-section (2) of the section provides:
Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority 'which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
8. Thus the test as indicated in this Sub-section, for judging the competency of the authority giving the sanction is, whether at the time of the alleged commission of the offence, it had the power to remove the public servant from his office.
9. Another principle to be borne in mind is, that unless a different intention appears, the power to appoint to an office includes the power to dismiss or remove from that office (vide Section 16, General Clauses Act).
10. We may further clear the ground and have a short, swift look at the relevant statutory rules. It is common ground that the post of Superintendent, Grade I (B & R) which the accused was temporarily holding is post of Class III Service, and the members of this Service are governed by Central Civil Services (Classification, Control and Appeal) Rules, 1965 (for short, hereinafter called 1965 Rules). The 1965 Rules were promulgated on November 20, 1965,. Rule 34 of the 1965 Rules repealed the earlier Rules of 1952 and any notification or orders issued there-under 'in so far as they are inconsistent with (the 1965 Rules)'. One of the provisions of the 1952 Rules, which is relevant for our purpose, and which has substantially been reproduced in the 1965 Rules, is Rule 10.It reads as under:
10. All first appointments to Class I and Class II Services shall be made by the Government. All first appointments to Class III and Class IV services shall be made by the authorities specified in column 3 of Schedule IV in respect of posts mentioned against them or by officers empowered in this behalf by such authorities.(emphasis added).
11. Schedule IV referred to in the Rule ran as follows:
Schedule IV (Vide Rules, 10, 11, 12, 14 and 19). Sl. Posts No. Appointing Authorities Authority in respect of Class empowered to III and Class IV posts impose penal- (vide Rule 10). ties(i),(ii),(iv) and (v) of Rule 13 for Class II Officers(Vider. 14). _______________ ______________________ ______________ I to 7 8. Posts in lower formations under E-in-C C. C. Es. of the E. in-c's Branch Commands. X X X.
12. The former Rule 10 as recast into Rule 9 of the 1965 Rules reads as below:
(9)(1) All appointment to Central Civil Services other than General Civil Service Class II, Class III and Class IV shall be made by the authorities specified in this behalf in the Schedule.
Provided that in respect of Class HI and Class IV Civilian Services, or civilian posts in the Defence Services (appointments may be made by officers empowered in this behalf by the aforesaid authorities.
(2) All appointments to the Central Civil Posts, Class II, Class III & Class IV included in the General & Central Civil Service shall be made by the authorities specified in this behalf by a general or special order made, by the authorities specified in this behalf in the Schedule.
13. It may be noted that both under the old Rule 10 and the Proviso to new Rule 9(1), the appointing authority is competent to delegate the power of appointment in respect of Class III Service.
14. Rule 13 enumerated these penalties which could be imposed upon the servants subject to the Rules:
(i) Censure. (ii) Withholding of a increments or promotion.
(iii) Reduction to a lower post or time scale or to a lower stage in a time scale.
(iv) Recovery from any of the whole or part of any pecuniary loss caused to Government by negligence of breach of orders:
(vi) Removal from the civil service of the Government, which does not disqualify from future employment.
(vii) Dismissal from the civil service of the Government which ordinarily disqualifies from future employment.
(viii) Compulsory retirement.
15. Rule 14 of 1952 Rules specified who could impose these penalties. It provided:
14(1) Any of the penalties specified in Rule 13 may be imposed on any person subject to these rules by the Government or by the appointing authority.
(2) Without prejudice to the provisions of Sub-rule (1), any of the penalties specified in Clauses (i),(ii),(iv) or (v) of Rule 13 may be imposed.
(b) in the case of members of Class III and IV services by the authority empowered in this behalf by the appointing authority.
Explanation.-In this rule, the expression ''appointing authority,' includes an officer empowered under Rule 10 to make first appointments to Class III and Class IV Services.
16. Rules 11 and 12 of the 1965 Rules correspond to Rules 13 and 14 of 1952 in all material aspects, excepting two, namely (1) Suspension has been taken out of the category of penalties, and (2) the Explanation appended to Rule 14 has been omitted because in the 1965 Rules, the subject matter of that Explanation has been made a part of the definition of 'Appointing Authority' given in Rule 2(a)
17. The main submission of Mr. Sachthey, learned Counsel for the appellant is that by an order communicated per letter, dated 27-4-1956 made under Rule 10 of the 1952 Rules, (subsequently reiterated in letter dated 23-1 1963) the Engineer in Chief had empowered all Chief Engineers in Military Engineering Service to make first appointments, inter alia, to costs in Class III Services, and that the operation of the aforesaid order was preserved and continued by the saving Clauses in Rule 34(1) of the 1965 Rules. On these premises, it is maintained, that the High Court was wrong in holding that the Chief Engineer of the North Western Zone, Chandigarh was not the 'appointing Authority' competent to remove the accused from service.
18. As against this, Mr. Hardayal Hardy. learned Counsel for the respondent submits that the order, dated 27-4-56, expressly delegates the power of making first appointments, only to the Chief Engineers of the three Commands, then in existence, and to the other authorities specified therein. It is pointed out that in 1956 when this order was made, there were no Zonal Chief Engineers which came into existence or reorganization in December 1962, as a class apart, working under the overall administrative control of the Chief Engineers of Commands. The point pressed into arguments is that a general delegation of the power in favour of Chief Engineers of Commands, as a class, can not, by any reckoning, amount to a delegation in favour of the Zonal Chief Engineers, also, working under, the control of the Chief Engineers of Commands.
19. Mr. Hardy has further submitted that the letter dated 23-1-1963 has not been issued under the signature of the Engineer-in-chief, nor can it, by any stretch of language, be construed as a delegation of the power of appointment under Rule 10.In the alternative, it is submitted the power delegated by the Engineer-in-Chief to the Chief Engineers was a qualified one inasmuch as no power was given to them to dismiss or remove a Government servant of Class III Service. It is maintained that by the aforesaid letter, the Chief Engineers were empowered to impose only minor penalties other than that of dismissal and removal. It is urged, in view of this restricted delegation in the matter of infliction penalties, it cannot be said that on the principle underlying Section 16 of the General Clauses Act power appointment will automatically include the power to remove the person appointed from his office.
20. In reply, Mr. Sachthey has pointed out that the fetter placed on the power given to the Chief Engineers by the letter dated 27-4-56,in the matter of removal or dismissal of Class III servants, operates only in case of persons appointed by the Engineer-in-Chief, and not where he was appointed by the Chief Engineer of a Command. It is pointed out that in the instant case the accused was appointed not by E-in-C but by the Chief Engineers Western Command, Simla.
21. The main question that falls to be considered is, whether the E-inC's order communicated through letter, dated 27-4-1956, can be construed as a valid delegation of the power of appointment to posts in Class III Service to Zonal Chief Engineers, which came into existence on reorganisation in December, 1962
22. The material part of this letter reads as under :
To The Chief Engineer, Southern Command, Poona Eastern Command, Lucknow Western Command, Simla. X X X Subject : Civilians in Defence Services (Classification, Control and Appeal Rules, 1962).
With reference to Rule 10 of the Civilians in Defence Services (Clessification, Control and Appeal) Rules 1962, I hereby authorise the authorities mentioned hereunder to make first appointments to Class III and IV Services to the extent indicated below :
Authority Posts (a) Chief Engineers All posts with the exception of (b) CWO, ND ES permanent appointment to the following categories : (i) Superintendent, B/R Grade I. X X X
2. Under Rule 14 (b) of CDS (CC & A) Rules, 1952 the undermentioned authorities are empowered to impose penalties referred to in Rule 13 ibid, to the extent indicated below :
(a) Chief Engineers Penalties (i),(ii), (iv) and (v) of and CWO, NDES Rule 13 on Class III employees in respect of whom E-in-C is the appointing authority.
23. A perusal of this letter will show that it is (among others) addressed to the Chief Engineers, Southern Command, Eastern Command, Lucknow, and Western Command, Simla. On the date of this letter there were only three Commands; two commands were created subsequently. There were no Zones or Zonal Chief Engineers at that time. Therefore, the Chief Engineers to whom the powers have been delegated under this letter could only be the Chief Engineers of the Commands, as a class. Since the delegation has been to the Chief Engineers of the Commands, as a class, it will cover the Chief Engineers of those commands, also, which were subsequently created. But, the question is will it take in Chief Engineer of Zones and amount to a delegation of power in their favour, too, on their creation six years later in 1962 Answer to this question will depend on whether the Chief Engineers of Zones belong to the same class holding the same rank and exercising same administrative powers and control as the Chief Engineers of Commands
24. At the final hearing, we had asked Shri Sachthey, to make available to us the official orders, regulations and like material throwing light on this aspect of the problem From the material furnished by him, it appears that the decision to reorganize the Military Engineering Service was taken by the Government in December, 1962.Pursuant to that decision, the Zones were created and Engineering Services in each Zones were placed under the charge of a Chief Engineer, of that Zone.Chandigarh area also made North Western Zone, for this purpose,
25. This reorganisation took effect from January 1, 1963.The main object of creation of Zonal Chief Engineers as stated in C-in-C a letter No. 666161/II/E2A dated 13.12-1962 was to 'effect maximum possible decentralisation and thereby achieve speed and efficiency in the planning and execution of work services.
26. As is apparent from the letter dated 22/26-12-1962 22/26-12-1962 from the Engineer-in Chief, the Zonal Chief Engineers have to work 'under the command and technical control of C.Es Commands for the planning and execution of works.' E-in-C's letter, No. 6161/II/E2B, dated December 13, 1962 addressed to the Chief Engineers, Commands and others, also, makes it clear that the reorganised set up.'C.E. located at each Command H.Q. will be responsible for all engineer matters in the Command, administration and training of engineer troops and for the coordination of works.Under the Command and technical control of this Chief Engineer there will be number of HC's/CsWE on zonal basis.
27.These two letters unmistakably show that the Zonal C.Es. are a class apart from the Chief Engineers of Commands. Although extensive financial power have been delegated to the Zonal Chief Engineers, which are almost the same as that of the Chief Engineers of the Commands, the fact remains that they are under the overall administrative control of the Chief Engineer of the Command concerned.
28. In this view of the matter the scope of the delegation of the powers made under the letter dated 27-4-1956, must be construed as a delegation only to the Chief Engineers of the Commands, as distinguished from the Chief Engineers of Zones which were then not even in embrye.
29. This takes us to the letter dated January 23, 1963 from the Army H. Qrs.E-in-C's Branch.In the first place this letter is not signed by the E-in-C.It appears to have been signed by some other person 'for E-in-Chief';nor does it purport to have been issued pursuant to any separately passed order of the E in-C expressly delegating under Rule 10, the power of appointment to posts in Class III Service.The opening sentence of this letter no doubt refers to HQ Letters No. 661610II E2A dated 18 Dec. 1962, para 4 and even No. of 22 Dec. 1962, which we have already noticed. There is nothing in them which delegates the powers of appointment to any posts to the Zonal Chief Engineers. On the contrary Para 8 of this letter says 'All Class III and IV personnel will be provided by the Command CE and will continue to be borne on the strength of the Command for purposes of (a) All documentation (b) Temporary promotion (c) Permanency (d) Retrenchment and reversion (e) Pension progress by the Unit but overall control by the Command CE,
30. Mr. Sachthey has placed great stress on para 12 of this letter which says :
The normal powers of Chief Engineer in all matters relating to appointments, punishments etc. vest with each Zonal Chief Engineer in accordance with this HQ letter No. 27304/EID(2) dated 27 April, 1956. In exercising these powers it will be necessary to consult CE Command prior to recruitment and replacements.
31. The argument advanced on behalf of the appellant is that the very authority that had issued the letter dated April 27, 1956, has construed it as delegating the powers of appointment, punishment etc. to the Zonal CEs, also, and therefore, the Court should accept that inter pretation.
32. We are unable to accept this argument.We have already pointed out that this letter, dated 23-1 1963, has not been issued under the signature of the same authority from which the order, dated 27-4-56,had emanated. It does not ex facie show that any order, apart from that dated 27-4-36, had been passed by the Engineer in-Chief under Rule 10. For reasons given earlier, we have not hesitation in holding that the assumption made in Paragraph 12 of this letter extracted above, to the effect that the Zonal Chief Engineers were vested with powers of appointments, punishment etc. in accordance with H.Q. letter dated 27 April, 1956-was clearly incorrect, Perhaps that was why on 14-1-1972,the necessity of making a proper order delegating such powers to Zonal Chief Engineers and others, under Rule 9 was felt by the Engineer-in-Chief.
33. No other order of the Engineer-in-Chief made prior to 24-6-1971 under Rule 10 of 1952 Rules or under Rule 9 (1) of the 1965 Rules delegating the power of appointment to posts in Class III Service, hat been placed before us. We have therefore no alternative but to hold that on 24-6-1971, Brig. Naresh Prasad, Zonal Chief Engineer, North Western Zone, Chandigarh, was not competent to remove the accused respondent.Tandon, from the post of Superintendent, B & R Grade I, Chandigarh and as such, the order sanctioning the prosecution of the respondent was bad in law.
34. In view of this finding, we do not think it necessary to examine the alternative contention advanced by Shri Hardy. The case fails because there is no valid sanction, as required by the law. Obviously this does not preclude a fresh prosecution for the same offence-but it is a matter for the State,in the circumstances of the case, to consider whether prosecution should be launched against the respondent or not. We make this observation only to remove a possible misapprehension.
In the result, the appeal fails and is dismissed.