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PETITIONER: K. S. DHARMADATAN

       Vs.

RESPONDENT: CENTRAL GOVERNMENT AND ORS.

DATE OF JUDGMENT01/05/1979

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA KAILASAM, P.S.

CITATION:  1979 AIR 1495            1979 SCR  (3) 832  1979 SCC  (4) 204  CITATOR INFO :  R          1984 SC 684  (19)

ACT:      prevention of Corruption Act, 1947, Section 6 scope of- Whether sanction  of competent  authority is  necessary  for prosecution when  in fact  on the said date the employee was out of  service, but on appeal in a departmental enquiry, he is ordered  to  be  reinstated  with  retrospective  effect- Construction of deeming provision.

HEADNOTE:      The appellant  was being  prosecuted for offences under sections 120-B,  420, 471  and 468  read with  section 34  I P.C., Section  167 (72)  of the  Sea Customs Act and Section 5(2)  read   with  section  5(1)(d)  of  the  Prevention  of Corruption Act  1947. At  the time when the charge sheet was filed and  the special  judge took  cognizance  against  the appellant sometime in October, 1970, the appellant ceased to be a  public  servant  and,  therefore,  no  sanction  under Section 6  of the  Prevention of  Corruption Act,  1947  was obtained. The  departmental enquiry  against  the  appellant ended in  his dismissal  but the  President of India allowed his appeal  and set  aside the order of removal from service passed  by   the  Collector  of  Customs  against  him  with directions to treat the period of absence from 5-9-1967 till the date  of  reinstatement  as  under  suspension,  and  to institute de  novo proceedings  against the  appellant after rectifying the defect in the charge sheet.      While the  departmental proceedings  were going on, the trial against  the appellant  proceeded to  its logical  end except the  arguments being  heard. The  appellant on  being reinstated filed  an application  before the  special  Judge praying that  all further  proceedings  be  dropped  as  the prosecution against  the  appellant  was  initiated  in  the absence of  a proper and valid sanction having been obtained under Section  6 of  the Prevention  of Corruption  Act. The special Judge  rejected it  and the High Court confirmed the rejection.      Dismissing the appeal by special leave, the Court ^      HELD: 1.  Section 6(1)  of the Prevention of Corruption Act, 1947  applies only  where at  the time when the offence

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was committed  the offender  was acting as a public servant. If the  offender had  ceased to  be a  public  servant  then section 6 would have no application at all. Furthermore, the point of  time when the sanction has to be taken must be the time when  the Court  takes cognizance of an offence and not before or after. If at the relevant time, the offender was a public servant  no sanction under section 6 was necessary at all. [835E-F]      In the instant case, no sanction under section 6 of the Act was  necessary, as  the appellant  had ceased  to  be  a public servant  at the  time when the cognizance of the case was taken against him by the special Judge. [836E]      S. A. Venkataraman v. The State, [1958] SCR 1037; C. R. Bansi v. State of Maharashtra, [1971] 3 SCR 236 followed. 833      2. A  deeming provision  cannot be pushed too far as to result in  a most  anomalous or  absurd position.  A deeming provision should  be confined only for the purpose for it is meant. [837C, 838A]      Commissioner of Sales Tax, U.P. v. The Modi Sugar Mills Ltd., [1961]  2 SCR  189; Braithwaite  & Co.  India Ltd.  v. Employees’ State  Insurance Corporation,  [1968] 1  SCR 771; Bengal Immunity  Co. Ltd. v. State of Bihar and Ors., [1955] 2 S.C.R.  603; Commissioner  of Income  Tax, Bombay  City v. Elphinstone Spinning  and Weaving  Mills Co. Ltd., 40 I.T.R. 142; applied.      3. In the instant case:      (a)  The   order  of   the  President  reinstating  the appellant and  creating a legal fiction regarding the period of suspension  must be limited only so far as time period of and the incidents of suspension were concerned and could not be carried  too far  as to  project it  even in  cases where actions had already been taken. [838A-B]      (b) The  dismissal was  not a  nullity so as to vitiate all proceedings.  The order  passed by the President was not an order  on merits.  It was  merely an  order passed by the President in  an appeal  an a  departmental enquiry  and the appellant succeeded  because of  a manifest  defect  in  the charge  sheet.   The  President   never  intended  that  the appellant should  be deemed to have been reinstated even for the purpose  of section 6 of the POCA, 1947 so as to nullify actions  completed,   consequences  ensued  or  transactions closed.  In  fact  when  the  President  observed  that  the appellant  shall   be  deemed  to  have  been  placed  under suspension from  the date of the original order of dismissal it merely  meant that  for  the  purpose  of  certain  civil consequences flowing  from the order of the President namely the grant  of subsistence  allowance or  other benefits  the order would be deemed to be retroactive in character. [837A- C]      (c) At the time when actual cognizance by the Court was taken the  appellant ceased  to be  a public  servant having been removed  from service.  If some years later he had been reinstated that  would not  make the  cognizance  which  was validly taken  by the  Court in  October, 1970, a nullity or render it  nugatory, so  as to  necessitate the  taking of a fresh sanction. [838B-C]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 362 of 1975.      Appeal by  Special Leave  from the  Judgment and  order dated the  11th July,  1975 of  the  Kerala  High  Court  in

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Criminal Revision Petition No. 73 of 1975.      S. Govind  Swaminadhan, E. V. Rangam and N. S Sivam for the Appellant.      Soli J.  Sorabjee, Addl.  Sol. Genl.  of India,  R.  N. Sachthey and E. C. Agarwala for the Respondent.      The Judgment of the Court was delivered by      FAZAL ALI,  J.-This appeal by special leave is directed against the  judgment and  order of the High Court of Kerala dated 11th July, 1975 834 dismissing  a   criminal  revision  petition  filed  by  the appellant before the High Court      The point  involved in the present appeal lies within a very narrow  compass. The appellant was being prosecuted for offences under  sections 120-B,  420, 471  and 468 read with section 34  I.P.C., section  167 (72)  of the sea of the Sea Customs Act  and section 5 (2) read with section 5 (1)(d) of the Prevention  of Corruption  Act. At  the  time  when  the chargesheet was  filed and the Special Judge took cognizance against  the   appellant  sometime   in  October,  1970  the appellant ceased  to be  a public servant and, therefore, no sanction under section 6 of the Prevention of Corruption Act (hereinafter referred  to  as  the  Act)  was  obtained.  It appears that  in pursuance  of a  departmental enquiry  held against the  appellant he  was charge-sheeted and ultimately dismissed  by  the  appointing  authority.  Thereafter,  the appellant filed  an appeal  before the President of India on 18-10-1967  against   his  removal   from   service.   After consulting the Union Public Service Commission the President by his  order dated  25-9-1972 allowed  the appeal  and  set aside the  order of  removal  from  service  passed  by  the Collector of Customs against the appellant. The order of the President further  directed that  the period of absence from 5-9-1967 till the date of reinstatement was to be treated as under suspension. The appeal appears to have been allowed by the President  mainly on  the ground  that  there  was  some defect  in  the  charge-sheet  served  by  the  disciplinary authority.  The   disciplinary  authority  was  directed  to institute de  novo proceedings  against the  appellant after rectifying the  defect  in  the  charge-sheet.  While  these proceedings before  the President  were going  on, the trial against the  appellant proceeded  to its  logical end and we now understand  that evidence  has already  been led and the arguments have to be heard.      The appellant  on being  reinstated  by  the  President filed an  application before  the special Judge praying that all  further   proceedings  be   dropped  inasmuch   as  the prosecution against  the  appellant  was  initiated  in  the absence of  a proper and valid sanction having been obtained under section  6 of  the Act.  The special  Judge,  however, rejected the  petition as  a result  of which  the appellant moved the High Court but was not successful there.      The only  point raised by the appellant before the High Court as also before us was that in view of the order of the President reinstating  the  appellant  retrospectively,  the appellant must  be deemed  to be in service with effect from the  date  from  which  the  departmental  proceedings  were started against  him, and,  therefore, he  would be a public servant at the time when cognizance was taken by the special Judge, and 835 as no  sanction under section 6 of the Act was obtained, the entire proceedings  became  void  ab  initio.  Mr.  Sorabjee appearing for  the respondents has submitted that admittedly and factually  at the  point of  time when the special Judge

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took cognizance  of the  case on  14-10-1970  the  appellant having been  dismissed from  service was  no longer a public servant, and,  therefore,  section  6  of  the  Act  had  no application. Section 6 of the Act runs thus:-           "6(1) 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.           (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 State Government or 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 Central Government or of the State Government;           (c) in  the case  of  any  other  person,  of  the authority competent to remove him from his office."      A perusal  of this  section would clearly disclose that the section  applies only where at the time when the offence was committed  the offender  was acting as a public servant. If the  offender had  ceased to  be a  public  servant  then section 6 would have no application at all. Further more, it is also  manifest from  the perusal  of section  6 that  the point of  time when the sanction has to be taken must be the time when  the court  takes cognizance of an offence and not before or  after. If  at the  relevant  time,  as  indicated above, the  offender was  not a  public servant  no sanction under section 6 was necessary at all.      Construing section  6 of the Act this Court in the case of S.  A.  Venkararaman  v.  The  State(1)  pointed  out  as follows:-           "When the  provisions of  s.  6  of  the  Act  are examined it  is manifest  that the  two conditions  must  be fulfilled before  its provisions  become applicable.  One is that the  offences mentioned  therein must be committed by a public servant and the other is that that person is employed in connection  with the  affairs of the Union or a State and is not removable from his 836      office save  by or  with the  sanction of  the  Central Government or  the State  Government or  is a public servant who is  removable from  his office  by any  other  competent authority. Both  these conditions must be present to prevent a court  from taking  cognizance of  an offence mentioned in the section  without the  previous sanction  of the  Central Government  or   the  State   Government  or  the  authority competent to  remove the  public servant from his office. If either  of   these  conditions  is  lacking,  the  essential requirements of  the section  are wanting and the provisions of the  section do  not stand  in the  way of a court taking cognizance  without   a,   previous   sanction   ........... .............Conversely, if  an offence  under s. 161 of the Indian Penal Code was committed by a public servant, but, at the time  a court  was  asked  to  take  cognizance  of  the offence, that  person had  ceased to be a public servant one of the  two requirements  to make s. 6 of the Act applicable would  be   lacking  and   a  previous   sanction  would  be unnecessary. The  words in  s. 6(1)  of the  Act  are  clear enough and they must be given effect to".      To the same effect is a later decision of this Court in the case of C. R. Bansi v. State of Maharashtra(1)      In view  of the  observations referred  to above, it is

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manifest that  as the  appellant had  ceased to  be a public servant at  the time  when the  cognizance of  the case  was taken against  him by  the Special  Judge no  sanction under section 6 of the Act was necessary.      It was,  however, argued  by Mr.  Swaminadhan,  learned counsel for  the appellant  that the  logical consequence of the order  of the  President reinstating  the appellant  was that he  would be  deemed to have been put jack into service on the date the charge-sheet was submitted against him, and, therefore, he  must be  deemed to be a public servant within the meaning  of section  6 of  the Act.  In other words, the learned counsel  wanted us to import a legal fiction arising from the  Presidential order  by which even though factually the appellant may not have been a public servant at the time when the  cognizance was  taken, he would be deemed to be so by  virtue   of  the  Presidential  order  even  though  the Presidential order  may have  been passed  years  after  the cognizance was  taken. We  are however  unable to agree with the somewhat broad arguments advanced by the learned counsel for the appellant. 837      To begin with, the dismissal of the appellant was not a nullity  so  as  to  vitiate  all  proceedings  previous  or subsequent. It  was merely  an order passed by the President in an  appeal and  the  appellant  succeeded  because  of  a manifest defect in the charge-sheet. The order passed by the President was  therefore not  an order  on merits.  There is nothing to  show that  the President  ever intended that the appellant should  be deemed to have been reinstated even for the purpose of section 6 of the Act so as to nullify actions completed, consequences  ensued or  transactions closed.  In fact, when  the President  observed that the appellant shall be deemed to have been placed under suspension from the date of the  original order of dismissal it merely meant that for the purpose  of certain  civil consequences flowing from the order of  the President.  namely, the  grant of  subsistence allowance or other benefits the, order would be deemed to be retroactive in  character. It is well settled that a deeming provision cannot be pushed too far so as to result in a most anamolous or absurd position.      In the case of Commissioner of Sales Tax, Uttar Pradesh v. The  Modi Sugar  Mills Ltd.  (1) while  laying  down  the principles on  the basis of which a deeming provision should be construed this Court observed as follows:-           "A legal  fiction must  be limited to the purposes for which  it has been created and cannot be extended beyond its legitimate field".      Similarly in the case of Braithwaite & Co. (India) Ltd. v. Employees’  State  Insurance  Corporation(2)  this  Court further amplifying  the principle  of the  construction of a deeming provision observed thus:-           "A legal  fiction is  adopted in law for a limited and definite  purpose only and there is no justification for extending it  beyond the  purpose for  which the legislature adopted".      In the  Bengal Immunity  Co. Ltd. v. State of Bihar and Ors.(3) this  Court pointed  out that "explanation should be limited to the purpose the Constitution-makers had and legal fictions are created only for some definite purpose".      In the  case of  Commissioner of Income Tax Bombay City v. Elphinstone  Spinning and  Weaving Mills Co. Ltd.(4) this court observed as follows:- 838           "As we have already stated, this fiction cannot be carried further than what it is intended for".

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    Thus, it  is well settled that a deeming fiction should be confined  only for  the purpose  for it  is meant. In the instant case,  the order  of the  President reinstating  the appellant and  creating a legal fiction regarding the period of suspension  must be  limited only so far as the period of and the incidents of suspension were concerned and could not be carried  too far  so as to project it even in cases where actions had  already been  taken and closed. In other words, the position  seems to  be that  at  the  time  when  actual cognizance by  the court  was taken the appellant had ceased to be  a public servant having been removed from service. If some years  later he had been reinstated that would not make the cognizance  which was  validly taken  by  the  court  in October, 1970  a nullity  or render  it nugatory  so  as  to necessitate the  taking of  a fresh sanction. We, therefore, entirely agree with the view taken by the High Court that in the facts  and  circumstances  of  the  present  case  legal fiction arising  out of  the Presidential  order  cannot  be carried to  nullify the  order of  cognizance taken  by  the special Judge.  The argument  of the learned counsel for the appellant is,  therefore,  overruled.  No  other  point  was pressed  before  us.  The  appeal  being  without  merit  is accordingly dismissed.  The special Judge would now hear the arguments  of  the  parties  and  dispose  of  the  case  as expeditiously as  possible. Let  the records be sent back to the special Judge immediately. V.D.K.                                     Appeal dismissed. 839