M.P. STATEversusPRADEEP KUMAR GUPTA

                       [2011] 6 S.C.R. 882


                           M.P. STATE
                                v.
                    PRADEEP KUMAR GUPTA
                (Criminal Appeal No. 992 of 2007)
                           MAY 18, 2011
B
    [ASOK KUMAR GANGULY AND DEEPAK VERMA, JJ.]

       Madhya Pradesh Municipality Act, 1961 - s. 86 -
  Sanction for prosecution of a public servant - Respondent-
C employee, an engineer in Municipal Corporation -
  Punishment imposed on him in the form of withdrawal of two
  increments - Sanction for prosecution of respondent granted
  by the State Government - Validity of - Held: Respondent
  was appointed by the State Government and remained under
D the control of the State Government throughout his service -
  State Government besides being the Appointing Authority was
  also the Authority to impose punishment and remove the
  respondent - Consequently, in terms of s. 19 of the PC Act,
  1988, the State Government was competent to grant sanction
E to prosecute the respondent - Thus, High Court erred in
  holding that the grant of sanction for prosecution by the State
  Government was invalid - Madhya Pradesh Municipal
  Service (Executive) Rules, 1973- rr. 17 and 32- Prevention
  of Corruption Act, 1988 - s. 19.
F     Respondent-public servant was appointed by the
  State Government. He was posted as an Engineer in the
  Municipal Corporation. in the course of employment, the
  penalty of withdrawing of two increments was imposed
  on the respondent by the State Government. The State
G Government granted sanction to prosecute the
  respondent. In a revision, the High Court held that
  sanction for prosecution granted to the respondent was
  invalid and quashed the same. It was held that the

H                               882
      M.P. STATE v. PRADEEP KUMAR GUPTA                883


respondent could 'be removed from the post by the             A
Mayor-in.Council under the relevant provisions of the
Madhya Pradesh Municipal Corporation Act. Therefore,
the appeJlanffiled the instant appeal.

    Allowing the appeal, the Court
                                                              B
     HELD: The respondent having been appointed under
Section 86 of the Madhya Pradesh Municipality Act, 1961
has been appointed by the State Government and
remains under the control of the State Government
throughout his service. It is clear from Rule 32 of the       C
Madhya Pradesh Municipal Service (Executive) Rules,
1973 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, the State         D
Governmentbeing the Appointing Authority and being
the Authority tQ i.tnpose punishment on the employee is
also the Authority which can remove an employee from
the service. It is clear from Section 19 of the Prevention
of Corruption Act, 1988 that the Authority who is             E
competent to remove the person concerned is competent
to grant sanction. The High Court, without considering
these aspects of the Act and Rules, came to an erroneous
finding. Thus, the order of the High Court is set aside.
[Paras 10, 13, 14, 17] [886-A, G-H; 887-A; 888-B]             F
    Ashok Baija/ vs. M.P. Government 1998 Crl. L.J. 3511
-distinguished.

    State of Tamil Nadu vs. T. Thu/asingam and Ors. AIR
1975 SupremeCourt 1314 - referred to.                         G
                       Case Law Reference:
 1998 Crl. L.J. 3511               Distinguished.    Para 3
 AIR 1975 Supreme Court 1314 Referred to.           Para 15   H
    884       SUPREME COURT REPORTS                  [2011] 6 S.C.R.


A       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 992 of 2007.

        From the Judgment & Order dated 17.12.2004 of the High
    Court of Judicature of M.P. Bench at Indore in Criminal
    Revision No. 380 of 2003.
8
        S.K. Dubey, Vikas Bansal, Vibha Datta Makhija for the
    Appellant.

          Jitendra Mohan Sharma for the Respondent.
c         The Judgment of the Court was delivered by

       A.K. GANGULY, J. 1. 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
D 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,
E 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
F 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.
G
         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.
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       M.P. STATE v. PRADEEP KUMAR GUPTA                      885
             [ASOK KUMAR GANGULY, J.]
    5. From the order dated 4.10.1983 of the Government of A
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 · B
clear that the respondent was appointed by the State
Government.

    6. The learned counsel for the appellant has a;s·o drawn
the attention of this Court to other materials on record from
which it appears that the respondent, after such appointment,        C
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   D
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.                                                   E

     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           F
Section 86 of the M.P. Municipalities Act, 1961 (hereinafter
referred to as the said Act) provides for constitution of State
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,             G
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 pf the said municipal service from
one municipal council to another municipal council.                  H
    886       SUPREME COURT REPORTS                  [2011] 6 S.C.R.

A      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
B (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 Ill
          Chief Municipal Officers
c
          11. Similarly, under Rule 2(i) service has been defined as
    follows:

          (i) "Service" means the Municipal Service for the State
o         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
E         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].
          (2) Subject to the provisions of the Act and these rules, the
          penalties mentioned in clauses (iv) to (vi) of Rule 31 shall
F
          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
G 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
H Authority who can remove an employee from the service.
      M.P. STATE v. PRADEEP KUMAR GUPTA                     887
            [ASOK KUMAR GANGULY, J.]
     14. That being the position, it is clear from the provisions   A
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        a
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     C
    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     D
            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        E
            affairs of a State and is not removable from his
            office save by or with the sanction of the State
            Government, of that Government;

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

     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             G
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
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    888     SUPREME COURT REPORTS                 [2011] 6 S.C.R


A 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 accorda:., e with law.
3
    N.J.                                         Appeal allowed.