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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

  CRIMINAL APPEAL NO. 992 OF 2007

M.P. STATE APPELLANT(S)

VERSUS

PRADEEP KUMAR GUPTA RESPONDENT(S)

JUDGMENT  

A.K. GANGULY, J.

This  appeal  is  filed  at  the  instance  of  the  State  

impugning the order of the High Court dated 17.12.2004 whereby  

the High Court in a revision filed before it was pleased to held  

that  sanction  for  prosecution  which  was  granted  to  the  

respondent, Sh. Pradeep Kumar Gupta was invalid and High Court  

was pleased to quash the same.   

2. In  coming  to  the  said  finding,  the  High  Court,  inter  

alia, held that Sh. Pradeep Kumar Gupta, (hereinafter called the  

respondent), was posted as an Engineer in Municipal Corporation  

of Ujjain and was a public servant and can be removed from the  

said post by the Mayor-in-Council under the relevant provisions  

of the Madhya Pradesh Municipal Corporation Act and the sanction  

for prosecution granted by the State Government is invalid and  

incompetent.  

3. In support of the said finding, the High Court, inter  

alia, relied on a judgment of Ashok Baijal Vs. M.P. Government  

reported as 1998 Crl. L.J. 3511.  

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4. We have heard the counsel appearing for the parties.  We  

are of the view that the conclusions reached by the High Court  

are not warranted either in facts or in law for the reasons  

discussed herein-under.  

5. From  the  order  dated  4.10.1983  of  the  Government  of  

Madhya  Pradesh  Local  Self  Government,  it  is  clear  that  the  

respondent  was  appointed  under  Section  86(1)  of  the  Madhya  

Pradesh Municipality Act and such appointment was made by the  

State  Government  in  terms  of  Rule  17  of  the  Madhya  Pradesh  

Municipal Service (Executive) Rules, 1973.  It is thus clear  

that the respondent was appointed by the State Government.  

6. The learned counsel for the appellant has also drawn the  

attention of this Court to other materials on record from which  

it  appears  that  the  respondent,  after  such  appointment,  was  

deputed by order dated 9.11.99 of M.P. Local Self Government in  

the Municipal Corporation, Khandwa in place of Municipality of  

Ujjain.   

7. Our  attention  is  also  drawn  to  the  fact  that  in  the  

course of his employment, the respondent suffered a penalty of  

withholding of two increments and the same was also imposed by  

the Government.  The said order of punishment was filed in the  

trial court by the respondent himself.  These are admitted facts  

of the case.   

8. These facts were also available before the High Court,  

but  unfortunately,  the  High  Court  has  not  at  all  considered  

these facts.  

9. Now,  coming  to  the  legal  question,  it  appears  that  

Section  86  of  the  M.P.  Municipalities  Act,  1961  (hereinafter  

referred to as the said Act) provides for constitution of State

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Municipal Services.  In Section 86 it is also made clear that  

such services to be constituted by the State Government shall  

make  rules  in  respect  of  the  recruitment,  qualification,  

appointment, promotion, etc. and also for dismissal, removal,  

conduct, departmental punishment under Section 86(2) of the Act.  

Section  86(4)  also  provides  that  the  State  Government  may  

transfer  any  member  of  the  said  municipal  service  from  one  

municipal council to another municipal council.  

10. It is, therefore, clear that the respondent having been  

appointed under Section 86 of the said Act, has been appointed  

by the State Government and remains under the control of the  

State Government throughout his service.  The relevant rule in  

this  connection  is  the  Madhya  Pradesh  Municipal  Service  

(Executive) Rules, 1973.  Under Rule 2(b) of the said Rules,  

Appointing Authority has been defined as follows:

(b) “Appointing  Authority”  means  State  Government in respect to Select Grades, Class I,  Class II and Class III Chief Municipal Officers

11. Similarly, under Rule 2(i) service has been defined as  

follows:

(i) “Service” means the Municipal Service for  the  State  constituted  under  sub-section  (i)  of  Section 86 of the Act.  

12. Rule 32 of the said Rule provides as follows:

32. Authorities who may impose penalties – (1)  Subject to the provisions of the Act and these  rules the penalties mentioned in clauses (I) to  (ii) of Rule 31 may be imposed on a member of the  service by the [appointing authority or Divisional  Commissioner or Director].

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(2) Subject to the provisions of the Act and  these rules, the penalties mentioned in clauses  (iv) to (vi) of Rule 31 shall not be imposed on a  member of the service except by the appointing  authority  and  in  consultation  with  the  Public  Service Commission.  

13. It  is  clear  from  the  aforesaid  Rules  that  the  State  

Government is the Appointing Authority and the State Government  

can  impose  on  the  members  of  the  State  Service  penalties  

mentioned in clause (i) to (vi) of such Rule.  Therefore, State  

Government  being  the  Appointing  Authority  and  being  the  

Authority  to  impose  punishment  on  the  employee  is  also  the  

Authority who can remove an employee from the service.  

14. That being the position, it is clear from the provisions  

of Section 19 of the Prevention of Corruption Act, 1988 that the  

Authority who is competent to remove the person concerned is  

competent  to  grant  sanction.   Unfortunately,  the  High  Court,  

without considering these aspects of the Act and Rules, relied  

only on the judgment of Ashok Baijal (supra) in coming to an  

erroneous finding.  Provision of Section 19(1) of Prevention of  

Corruption Act, 1988 is set out hereunder:

19. Previous  sanction  necessary  for  prosecution – (1) No court shall take cognizance  of an offence punishable under sections 7, 10, 11,  13 and 15 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,  of that Government;  

(b) in the case of a person who is employed with  the affairs of a State and is not removable  from his office save by or with the sanction  of the State Government, of that Government;

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(c) in  the  case  of  any  other  person,  of  the  authority competent to remove him from his  office.  

15. Similar views have been expressed in the case of State of  

Tamil Nadu Vs.  T. Thulasingam and others reported in AIR 1975  

Supreme Court 1314.

16. We  are,  however,  not  called  upon  to  decide  the  

correctness  of  the  decision  rendered  in  Ashok  Baijal  case  

(supra).  We further make it clear that the decision is Ashok  

Baijal  case  (supra)  is  not  attracted  to  the  facts  and  

circumstances  of  this  case.   However,  we  do  not  express  any  

opinion on the correctness of the proposition laid down in Ashok  

Baijal case (supra).  

17. This appeal is allowed, the order of the High Court is  

set  aside  and  the  trial  of  the  case  of  the  respondent  may  

proceed in accordance with law.   

......................,J       (ASOK KUMAR GANGULY)

......................, J      (DEEPAK VERMA)

NEW DELHI MAY 18, 2011

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ITEM NO.101               COURT NO.5             SECTION IIA

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                     CRIMINAL APPEAL NO(s). 992 OF 2007

M.P. STATE                                        Appellant (s)

                VERSUS

PRADEEP KUMAR GUPTA                               Respondent(s)

(With office report)

Date: 18/05/2011  This Appeal was called on for hearing today.

CORAM : HON'BLE MR. JUSTICE ASOK KUMAR GANGULY         HON'BLE MR. JUSTICE DEEPAK VERMA

(VACATION BENCH)

For Appellant(s) Mr. S.K. Dubey, Sr. Adv. Mr. Vikas Bansal, Adv.

                   Ms. Vibha Datta Makhija,Adv.

For Respondent(s) Mr. Jitendra Mohan Sharma,Adv.

          UPON hearing counsel the Court made the following                                O R D E R  

The appeal is allowed in terms of the signed order.  

(NAVEEN KUMAR)                       (RENU DIWAN)   COURT MASTER                         COURT MASTER

(Signed order is placed on the file)