Re-employment of a civil servant can be done by State Government by the powers conferred upon it under Article 162 of the Constitution.

Aashray Chaudhary | Symbiosis Law School, Hyderabad | 10th December 2019

THE STATE OF TELANGANA v. SRI MANAGIPET @ MANGIPET SARVESHWAR REDDY

Facts of the case

Through these Criminal appeals before the Apex court the order date 24^th December, 2018 passed by the High Court of Judicature Hyderabad is being challenged by the State and by the accused.

The impugned order by the Hon’ble High Court was passed as a result of petition of the Accused officer under Section 482 of CrPC for quashing of the charge sheet filed on 9^th October 2017. The accused officer was charged with possession of assets worth Rs.3,18,61,500/- alleged to be disproportionate to his know sources of income.

The High Court quashed the charge sheet, holding that there was a lack of authorization to register the Crime under section 13(2) and 13(1)(e) of the Prevention of Corruption act, 1988 and that the informant (i.e. the Deputy Superintendant of Police in this case) cannot be the Investigating officer. (Para 5)

The appealed against the above two finding of the Hon’ble High Court, whereas the Accused officer challenged the findings of the High Court not accepting the grounds pressed by him in seeking the quashing of the charge sheet – that there is no preliminary inquiry before the registration of the Crime’ that there is no sanction and that there is a delay in the completion of the investigation which has prejudiced the rights of the Accused officers.

What was held?

Issue 1.  Whether the Joint Director, Anti-Corruption Bureau was discharging his duties as a Government servant or as a Contractual employee?

The Apex court found a glaring irregularity in the findings of the Hon’ble High Court. The High Court held that the Joint Director, Anti-Corruption Bureau K Sampath Kumar was re-employed and his age of Superannuation was extended without the Compliance of Article 16. Article 16 ensures equality of opportunity for all citizens in the matters relating to employment to any office under the State. This would require the State to issue public advertisement for filling of the office till an appropriate candidate is appointed by the UPSC or the candidate should be put before the body authorised under the relevant rules for his selection. Which was not proved to be complied before the High Court and hence it held that the appointment of the Joint Director was purely contractual and hence he cannot be called a government servant. The Apex Court Stating Article 310 which states that all members of the defence services or of the civil services and other posts connected to defence or civil services under the Union holds office at the pleasure of the President and under any State holds that office at the pleasure of the Governor. It held that K Sampath Kumar was re-employed by the State Government in exercise of the powers conferred under Article 162 of the Constitution of India. It also held that there is no prohibition in any of the service rules that there cannot be any re-employment of a person who was once in a civil service. After being re-employed he was holding a civil post as his salary was being paid from the state exchequer and was discharging duties in responsibility in the Anti-corruption Bureau.

Thus the Supreme Court held that Sri K Sampath Kumar was discharging his duties as Joint Director in the Anti-Corruption Bureau in exercise of powers conferred by the State Government and thus was in fact a Government Servant.

Issue 2.  Whether Joint Director Anti-Corruption Bureau was within his powers to authorise the registration of the case against the accuse officer?

 The Court held that K. Sampath whilst discharging his duties as Joint Director, Anti-corruption Bureau had full authority of the office he held. It held that if the action taken by such officer is in public interest and not for his own benefit then it will be taken to be valid.

The court based its findings on the de facto doctrine. The doctrine basically says that a Judge is not a mere intruder or a usurper but is one who holds the office under the colour of lawful authority. Which essentially make the office the essence of the matter? Even though the appointment of an officer may carry some defects, the actions taken by him are in the name and power of the office and thus would carry the same power as if there are no defects, unless such actions are unlawful.

Issue 3.  Whether an informant can be an investigating officer in the same case?

 The Court found that the Judgement in the case Mohan lal v State of Punjab on which the High Court based its order on was held to be prospective in the Judgement in the case of Varinder Kumar vs State of Himachal, the court in this case held that there should be a balance in the rights of the accused and the prosecution and the Criminal Justice system cannot be allowed to veer exclusively on the side of the accused.

Issue 4. Whether preliminary inquiry before registration of a crime is mandatory?

The counsel appearing for the accused heavily relied on the judgement reported as Lalita Kumari v Government of Uttar Pradesh & Ors. in which case it was laid down that preliminary inquiry is warranted so as to avoid an abuse of the process of law. Where the police officer is doubtful of the veracity of an accusation, he has to conduct a preliminary inquiry. To which the court replied that if the information given by informant discloses a cognizable offence registration of an FIR is mandatory and no preliminary inquiry is permissible in such a situation.

Preliminary inquiry is not a must in all cases and may be conducted pertaining to Matrimonial disputes/family disputes, Commercial offences, Medical negligence cases and Corruption cases etc. The Judgement of the Apex Court in Lalita Kumari  case does not state that proceedings cannot be initiated against the accused without conducting a preliminary inquiry.