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CASE NO.: Appeal (crl.)  478 of 2004

PETITIONER: State(Anti Corruption Branch)Delhi & Anr.

RESPONDENT: Dr. R.C. Anand & Anr.                                    

DATE OF JUDGMENT: 15/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No.3964/2003)

ARIJIT PASAYAT, J.

Leave granted.

By the impugned judgment a Division Bench of the Delhi  High Court held that the sanction granted by the Governing

Body of All India Institute of Medical Sciences (in short  the ’AIIMS’) to proceed against respondent no.1-employee   was legally not sustainable. Accordingly the proceedings  pursuant to the said sanction were quashed. The High Court  was of the view that when the President who is the Chairman  of the Governing Body had suggested that sanction was not to  be granted, it was not open to the Governing Body to pass an  order directing grant of sanction. The President had  directed the matter to be placed before the Governing Body,  it was incumbent upon the latter to examine that question  alone and if a contrary view was to be taken, that was  subject to passing of a reasoned order showing application  of mind. Since that was not done, the order of the Governing  Body was vulnerable and deserved to be nullified. Further  the order of suspension, which was passed and was continued,  was vacated on the ground that same was continuing for a  long time without a review of the necessity for continuance  thereof.

Since the pivotal question is whether the Governing  Body’s decision suffered from any infirmity, a brief  reference to the factual background would suffice.

On 8.5.1998 a complaint was registered against   respondent no. 1 on the basis of allegations made by one  Sagir Ahmad Khan who was supplying materials to AIIMS. It  was alleged in the complaint that the respondent no. 1 had  demanded illegal gratification for reviewing an order of  cancellation and for placing orders to make further supplies  by renewal of contract. The complainant produced cassettes  of tapes containing recorded conversation between himself  and the respondent no. 1. The transcript of the same was  prepared and placed on record. On 20.7.1998 the complainant

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approached the Anti Corruption Branch (for short ’ACB’)  after fixing the time and the amount of money with  respondent No. 1. The complainant produced currency notes of  Rs.10,000/- before an officer of the ACB. The investigating  officer prepared several memos, recorded the number of notes  and applied Phenolphthalein powder on the notes and told the  complainant and the panch witnesses about the procedure to  be adopted. A remote tape recording system was used to  collect additional evidence for laying the trap. On the  basis of the conversation recorded and after the acceptance  of money by the respondent No. 1, recovery was made and  positive tests indicating presence of Phenolphthalein in the  colourless solution of sodium carbonate was noted. A  positive report from the Forensic Science Laboratory was  also received regarding hand wash and pant pocket wash.  Though a similar procedure was intended for another person  same could not be materialised as the situation at AIIMS  turned violent.   

By an order dated 29.7.1998 respondent no. 1 was placed  under suspension by the AIIMS with effect from 20.7.1998.   The appellant No. 1 requested AIIMS for a sanction for  prosecuting respondent No.1. AIIMS sought certain  clarification from the Ministry of Law and Justice and the  Central Vigilance Commission (in short the ’CVC’). They did  not recommend grant of sanction to prosecute. The President  of AIIMS passed an order on 22.3.2000 revoking the order of  suspension, and declining grant of sanction to prosecute  subject to ratification by the Governing Body.

On 3.4.2000 the Governing Body passed an order  superseding the order of the President dated 22.3.2000 and  the respondent No. 1 was consequently placed under  suspension.   

On 17.4.2000 the respondent no. 1 filed a Criminal Writ  Petition under Article 226 of the Constitution, 1950 (in  short the ’Constitution’) read with Section 482 of the Code  of Criminal Procedure, 1973 (in short the ’Code’) for  quashing the order dated 3.4.2000 and seeking other reliefs  also. The stand of respondent no. 1 was that opinion of  Ministry of Law and Justice is binding on the Governing body  of AIIMS. Once the President of AIIMS has exercised the  power it was not open to be re-considered by the Governing  Body and there was non-application of mind on the part of  the Governing Body while granting sanction. Since the tape  recorded conversation or the transcript of the report of the  ACB was not produced before the Governing Body continuance  of suspension and grant of sanction was bad. The Delhi  Police had no jurisdiction to register a case against the  writ petitioner as he was a Central Government employee and  the sanction ought to have been routed through Central  Bureau of Investigation (in short the ’CBI’) as opined by  the CVC and the Ministry of Law and Justice.   

The present appellants filed reply by counter  affidavit, taking the stand that the sanction had been given  after due consideration and there was sufficient evidence  justifying the sanction. Since charge sheet had also been  filed on 28.4.2000 in the Court of the Special Judge Tis  Hazari, Delhi and cognizance had been taken, the writ  petitioner was not entitled to any relief. It was also  further pointed out that ACB has jurisdiction in view of the  notification issued by the Ministry of Home Department,  Govt. of NCT.  The High Court allowed the Writ Application

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primarily on the ground that the Governing Body cannot  supersede the decision of the President of AIIMS and there  was no material for granting sanction since records were not  produced before the Governing Body for the purpose of  assessing whether it was a fit case for granting sanction.

In support of the appeal, learned counsel for the  appellant submitted that the High Court’s approach is  clearly erroneous. Section 19 of the Prevention of  Corruption Act, 1988 (in short ’the Act’) refers to the  authorities competent to remove the concerned officers. The  present case is covered by clause (c) of sub-section (1) of  Section 19. By notification dated 25th February, 1999  issued under sub-section (1) of Section 29 of All India  Institute of Medical Sciences Act, 1956 (in short the  ’Act’), Regulations were brought into operation and the  Regulations are called "All India Institute of Medical  Sciences Regulations, 1999 (in short the ’Regulations’). In   Schedule II, relating to the Appointing Disciplinary and  Appellate Authorities for various posts in the Institute, it  has been clearly stipulated that for Group ’A’ posts other  than the "Director", the Appointing Authority is the  Governing Body, and the Disciplinary Authority in respect of  various penalties are the Governing Body except in respect  of penalties (i) to (iv) for which President alone is the  concerned Authority. Above being the position, so far as the  respondent No. 1 is concerned, it is the Governing Body  alone which had the authority to decide on the question of  sanction. The High Court proceeded as if the decision was  that of the President and it was to be ratified by the  Governing Body. There was no question of any ratification  because the plenary powers vested with the Governing Body  alone and the President has no role to play.  With reference  to the Central Civil Services Classification Control and  Appeal Rules (in short the ‘CCA Rules’) relating to  penalties and disciplinary authorities, particularly Part V  it was pointed out that the major penalty was to be imposed  on respondent no. 1. Therefore, it was the Governing Body  alone which had the jurisdiction to accord sanction.  There  was no question of recording any reasons for departing from  the President’s view, as that is not a requirement in law.   The concept of the ratification has been wrongly introduced  by the High Court.  

       In response Mr. K. Ramamoorty, learned senior counsel  submitted that though the Governing Body had the  jurisdiction to accord sanction, the view of the President  should not have been brushed aside lightly and as noted by  this Court in Mansukhlal Vithaldas Chauhan v. State of  Gujarat [1997 (7) SCC 622], the grant of sanction cannot be  an empty formality, and an application of mind was  imperative.  

We find from the judgment of the High Court that it  proceeded on the premises that the sanctioning authority is  to apply its own independent mind, and it was applied by the  President and he sought for ratification by Governing Body.  The approach is clearly erroneous.  The sanctioning body was  not the President and it was the Governing Body.  This  position is fairly accepted by the learned counsel for the  respondent No. 1 and cannot be disputed in the teeth of  specific provisions contained in Schedule II to the  statutory Regulations. But according to him since the  President had expressed his views, for taking different  view, reasons should have been indicated. Such pleas clearly

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are without any substance.  When the Authority competent to  accord sanction is the Governing body under the statutory  Regulations and that body, as in this case takes a decision  there was no necessity for recording reasons to differ from  the view expressed by the President who had legally no role  to play. The allocation of powers distinctly made by the  statutory Regulations earmarking their own fields, subjects  and topics cannot be legitimately ignored, on any  assumptions or baseless presumptions.  As long as the  President had no individual role to play in matters  exclusively earmarked and allocated to the Governing Body  and the decision of the Governing Body as that of any body  has to be collective one, neither the President could  dictate what and how the Governing Body has to exercise its  powers nor the Governing Body is obligated in any manner to  deal with and give reasons to differ from the view expressed  by the President, which, as noticed above he could not have  in the light of the statutory Regulations themselves.  There  is no justification in law or any principle of construction  to import any such restriction on the independent exercise  of power by the earmarked Authority on its own under the  Regulations.  The President cannot impede or foreclose the  liberty of the Governing Body by expressing his view or by  passing even a provisional order subject to ratification,  wherein under the statutory Regulations, he had none, at  all.

Ratification is noun of the verb "ratify".  It means  the act of ratifying, confirmation, and sanction. The  expression "ratify" means to approve and accept formally.  It means to conform, by expressing consent, approval or  formal sanction.  "Approve" means to have or express a  favourable opinion of, to accept as satisfactory.  In the  instant case, there was no question of any ratification  involved as wrongly assumed by the High Court.       

The counter affidavit of the present appellant before  the High Court clearly indicated that relevant aspects were  noted by the Governing Body before arriving at its decision.  High Court seems to have proceeded on the basis that since  the basic material, or evidence i.e. alleged tape  conversation, was not looked into by the Governing Body to  form its own independent opinion to depart from the view of  President, the sanction was contrary to law.  In Kalpnath  Rai v. State (through CBI) (1997 (8) SCC 732), it was  clearly observed by this Court that the sanctioning  authority is not required to wait for the report of the  experts.  The sanctioning authority has only to see whether  the facts disclosed in the complaint prima facie disclose  commission of an offence or not. The actual production of  the tapes etc., are matters for proof during trial and not  necessarily to be undertaken at this stage. It is true as  contended by learned counsel for respondent no.1, grant of  sanction is not empty formality.  

The validity of the sanction would, therefore, depend  upon the material placed before the sanctioning authority  and the fact that all the relevant facts, material and  evidence including the transcript of the tape record have  been considered by the sanctioning authority.  Consideration  implies application of mind.  The order of sanction must ex  facie disclose that the sanctioning authority had considered  the evidence and other material placed before it.  This fact  can also be established by extrinsic evidence by placing the  relevant files before the Court to show that all relevant

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facts were considered by the sanctioning authority. [See  Jaswant Singh v. State of Punjab (AIR 1958 SC 124) and State  of Bihar v. P.P. Sharma (1992 Supp(1) SCC 222)].    

The position was reiterated in Manusukhlal’s case  (supra). The order dated 3.4.2000 passed by the Governing  Body cannot be said to be deficient in any way in meeting  the requirements of law. No other point was urged on behalf  of the respondent no.1 to justify the High Court’s order.  

In the aforesaid background the High Court’s judgment  is indefensible and is quashed. The matter pending before  the Special Judge shall now proceed in accordance with law.  We make it clear that we have not expressed any opinion on  the merits of the case, which relates to the actual proof of  the charge before the competent Court during trial.   

The appeal is allowed to the extent mentioned above.