STATE OF UTTARAKHANDversusYOGENDRA NATH ARORA

                   [2013) 5 S.C.R. 233


               STATE OF UTTARAKHAND                          A
                            v.
                YOGENDRA NATH ARORA
            (Criminal Appeal No. 459 of 2013)
                    MARCH 18, 2013                            B
         [CHANDRAMAULI KR. PRASAD AND
              V. GOPALA GOWDA, JJ.]

      Prevention of Corruption Act, 1988 - s.19(1)(c) - Sanction
for prosecution - Competent authority - Employee of an C
undertaking of the State of Uttar Pradesh - Consequently
taken on deputation and posted in a undertaking of the State
of Uttarakhand - While working there, case lodged against
employee-respondent u/s. 7 rlw s. 13(1)(d) and 13(2) of the Act
- Respondent repatriated on the same day to his parent D
organization by the State Government of Uttarakhand which
also granted sanction for his prosecution - High Court
quashed prosecution holding that the State Government of
the Uttar Pradesh was competent to remove him and to grant
necessary sanction,_ and not the State Government of E
Uttarakhand - Whether respondent being on deputation to an
undertaking of the State Government of Uttarakhand, it had
the power to repatriate him which would mean the power of
removal from office by the State Government of Uttarakhand
- Held, No - The power to repatriate does not embrace within F
itself the power of removal from office as envisaged ul
s.19(1)(c) of the Act - The purport of taking the sanction from
the authority competent to remove a corrupt government
servant from his office is not only to remove him from his
temporary office but to remove him from government service G
- It was the State Government of the Uttar Pradesh which was
competent to remove the respondent and to grant necessary
sanction.


                            233                               H
    234      SUPREME COURT REPORTS             [2013] 5 S.C.R.


A       Prevention of Corruption Act, 1988 - Office - Meaning of
    - Repatriation - Effect of - Words and Phrases.

         The accused-respondent was earlier employed in an
    undertaking of the State of Uttar Pradesh. Consequent
8   upon reorganization of the State of Uttar Pradesh, he was
    taken on deputation and posted in a Government
    undertaking of the State of Uttarakhand. While working
    there, he was arrested for accepting illegal gratification
    and a case was lodged under Section 7 read with Section
C   13(1 )(d) and 13(2) of the Prevention of Corruption Act,
    1988. The respondent was repatriated on the same day
    to his parent organization by the State Government of
    Uttarakhand which also granted sanction for his
    prosecution. By the impugned judgment, the High Court
    held that the respondent being an employee of an
D   undertaking of the State Government of Uttar Pradesh
    and having been repatriated to his parent department, it
    was the State Government of the Uttar Pradesh which
    was competent to remove him and to grant necessary
    sanction, and not the State Government of Uttarakhand
E   and accordingly~ quashed the prosecution of the,
    respondent for being without valid sanction.

      The State of Uttarakhand contended before this
  Court that the respondent being on deputation to an
F undertaking of the State Government of Uttarakhand, it
  had the power to repatriate him which would mean the
  power of removal from office by the State Government of
  Uttarakhand.

G      The question which therefore arose for determination
  was whether removal from his office would mean
  dislodging from holding that office and shifting to another
  office or in other words, whether the power of the State
  Government of Uttarakhand to repatriate the respondent
H tneant that it had the power to remove.               ·
  STATE OF UTTARAKHAND v. YOGENDRA NATH                235
                  ARORA
    Dismissing the appeal, the Court                          A
     HELD: 1.1. Office means a position which requires
the person holding it to perform certain duties and
discharge certain obligations and removal from his office
would mean to snap that permanently. By repatriation, the     8
person holding the office on deputation may not be
required to perform that duty and discharge the obligation
of that office, but nonetheless he continues to hold office
and by virtue thereof performs certain other duties and
discharge certain other obligations. Therefore the power      c
to repatriate does not embrace within itself the power of
removal from office as envisaged under Section 19(1)(c)
of the Prevention of Corruption Act, 1988. The term
removal means the act of removing from office or putting
an end to an employment. The purport of taking the            0
sanction from the authority competent to remove a
corrupt government servant from his office is not only to
remove him from his temporary office but to remove him
from government service. [Paras 11, 12] {241-B-D, F-G]

    1.2. It: is common ground that without prejudice to       E
the contention raised in the present appeal, the State
Government of Uttarakhand has written to the State
Government of Uttar Pradesh for granting sanction. Since
the request of the State Government of Uttarakhand for
sanction of prosecution of the accused-respondent is still    F
pending before the State Government of Uttar Pradesh,
hence, it is. deemed expedient that the latter takes
decision on the request so made, if already not taken.
[Paras 6, 13] [238-C-D, 241-G-H]
                                                              G
    V.K. Sharma v. State (Delhi Admn.) 1975 (1) SCC 784:
1975 (3) SCR 922 -relied on.

   R.S. Nayak v. A.R. Antu/ay(1984) 2 SCC 183: 1984 (2)
SCR 495 - referred to.                                        H
    236       SUPREME COURT REPORTS             [2013) 5 S.C.R.


A                        Case Law Reference:
          1984 (2) SCR 495        referred to          Para 8
          1975 (3) SCR 922        relied on            Para 12
B       CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 459 of 2013. ·

        From the Judgment & Order dated 06.11.2006 of the High
    Court of Uttarakhand at Nainital in Criminal Misc. Application
    No. 740 of 2005.
c
          Rachana Srivastava, Utkarsh Sharma for the Appellant.

        R.G. Srivastava, Balraj Dewan, V.N. Raghupathy for the
    Respondent.

D         The Judgment of the Court was delivered by

       CHANDRAMAULI KR. PRASAD, J. 1. Yogendra Nath
  Arora (hereinafter referred to as "the Accused") was earlier
  employed as Deputy General Manager in U.P. Industrial
E Consultants, an undertaking of the State of Uttar Pradesh.
  Consequent upon reorganization of the State of Uttar Pradesh,
  he was taken on deputation on 23rd January, 2003 and posted
  as Deputy General Manager of the State Industrial
  Development Corporation, (hereinafter referred to as
F "SIDCUL"), a Government undertaking of the State of
  Uttarakhand. While working as tlie Deputy General Manager
  of SIDCUL, a trap was laid on 30th of June, 2004 and he was
  arrested while accepting an illegal gratification of Rs.30,000/-
  . This led to lodging of Criminal Case No. 168 of 2004 at Police
  Station Dalanwala, District Dehradun under Section 7 read
G with Section 13(1)(d) and 13(2) of the Prevention of Corruption
  Act, 1988 (hereinafter referred to as "the Act"). The accused
  was repatriated on the same day to his parent organization by
  the State Government of Uttarakhand. It also granted sanction
  for his prosecution on 23rd of August, 2004 and the charge
H
  STATE OF UTTARAKHAND v. YOGENDRA NATH                      237
    ARORA [CHANDRAMAULI KR. PRASAD, J.)
sheet was submitted on 25th of August, 2004 in the Court of          A
Special Judge, Anti-Corruption-II, Nainital. Accused prayed for
discharge, inter alia contending that the materials on record are
not sufficient for framing of the charge and further, in the
absence of valid sanction from the competent authority, as
required under Section 19(1 )(c) of the Act, the trial can not       B
legally proceed. The Special Judge, by his order dated 18th
of August, 2005 rejected his contention, inter alia, observing
that there is sufficient material on record for framing of the
charge. As regard the plea of absence of sanction, the learned
Judge observed as follows:                                           c
    "... the question of sanction being merely an incident to the
    trial of the case is not to be considered at this stage. It is
    undoubtedly true, that the accused was an employee of the
    State of Uttar Pradesh and was on deputation to the State
    of Uttara11chal and under the subordination and                  D
    administrative control of the State of Uttaranchal. Thus, the
    question of sanction being incident to the trial of the case
    and on perusal of the record, there is a sufficient material
    on record to charge the accused, the accused shall be
    charged under Section 7 read with .Section 13(a)(d} and          E
    13(2) of the Prevention of Corruption Act, 1988."

     2. Accordingly, the Special Judge rejected the prayer of
the accused.
                                                                     F
      3. Aggrieved by the same, the accused preferred an
application under Section 482 of the Criminal Procedure Gode
before the High Court challenging the aforesaid order. It was
contended before the High Court that the accused being an
employee of an undertaking of the State Government of Uttar
Pradesh, the State Government of Uttarakhand is not                  G
competent to grant sanction. This submission found favour with
the High Court. The High Court held that the accused being an
employee of an undertaking of the. State Government of Uttar
Pradesh and having been repatriated to his parent department,
it is the State Government of the Uttar Pradesh which is             H
    238       SUPREME COURT REPORTS              [2013] 5 S.C.R.


A   competent to remove him and to grant necessary sanction.
    Accordingly, the High Court quashed the prosecution of the
    accused being without valid sanction and, while doing so,
    observed that the State Government of Uttarakhand shall be at
    liberty to prosecute the accused after obtaining valid sanction
B   from the State Government of Uttar Pradesh.

         4. Aggrieved by the aforesaid order, the State of
    Uttarakhand has filed the present special leave petition.

          5. Leave granted.
c
        6. It is common ground that without prejudice to the
    contention raised in the present appeal, the State Government
    of Uttarakhand has written to the State Government of Uttar
    Pradesh for gral')ting sanction. But, till date no decision has
o   been communicated.

       7. Ms. Rachana Srivastava, learned counsel representing
  the State of Uttarakhand concedes that sanction by the
  competent State Government is necessary for prosecution of
  an accused for an offence punishable under Section 7 and 13
E of the Act. She points out that the accused being on deputation
  to an undertaking of the State Government of Uttarakhand, it
  had the power to repatriate him which would mean the power
  of removal from office by the State Government of Uttarakhand.
  According to her, dislodging an accused from an office and
F repatriating him would mean removal from his office. Removal
  from office, according to her, would not mean the remov.al from
  service. She emphasizes that the expression used in Section
  19(1 )(c) is 'removal from his office' and not 'removal from
  service'. Section 19(1)(c) of the Act which is relevant for the
G purpose reads as follows:

          "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
H
  STATE OF UTIARAKHAND v. YOGENDRA NATH                     239
    ARORA [CHANDRAMAULI KR. PRASAD, J.]
    sanction,-...........                                           A

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

     8. In support of the submission reliance has been placed
to a Constitution Bench judgment of this Court in the case of
R.S. Nayak v. A.R. Antulay, (1984) 2 SCC 183 and our                C
attention has been drawn to the following passage from
paragraph 23 of the judgment which reads as follows:

    " ... Each of the three clauses of sub-section(1) of Section
    6 uses the expression 'office' and the power to grant
    sanction is conferred on the authority competent to remove      D
    the public servant from his office and Section 6 requires
    a sanction before taking cognizance of offences
    committed by public servant. The offence would be
    committed by the public servant by misusing or abusing
    the power of office and jt is from that office, the authority   E
    must be competent to remove him so as to be entitled to
    grant sanction. The removal would bring about cessation
    of interrelation between the office and abuse by the holder
    of the office. The link between power with opportunity to
    abuse and the holder of office would be severed by              F
    removal from office. Therefore, when a public servant is
    accused of an offence of taking gratification other than
    legal remuneration for doing or forbearing to db an official
    act (Section 161 IPC) or as a public servant abets
    offences punishable under Sections 161 and 163 (Section         G
    164 IPC) or as public servant obtains a valuable thing
    without consideration from person concerned in any
    proceeding or business transacted by such public servant
    (Section 165 IPC) or commits criminal misconduct as
    defined in Section 5 of the 1947 Act, it is implicit in the
                                                                    H
    240       SUPREME COURT REPORTS                [2013] 5 S.C.R.


A         various offences that the public servant has misused or
          abused the power of office held by him as public servant.
          The expression 'office' in the three sub-clauses of Section
          6(1) would clearly denote that office which the public
          servant misused or abused for corrupt motives for which
B         he is to be prosecuted and in respect of which a sanction
          to prosecute him is necessary by the competent authority
          entitled to remove him from that office which he has
          abused. This interrelation between the office and its abuse
          if severed would render Section 6 devoid of any meaning.
c         And this interrelation clearly provides a clue to the
          understanding of the provision in Section 6 providing for
          sanction by a competent authority who would be able to
          judge the action of the public servant before removing the
          bar, by granting sanction, to the taking of the cognizance
          of offences by the court against the public servant.
D
          Therefore, it unquestionably follows that the sanction to
          prosecute can be given by an authority competent to
          remove the public servant from the office which he has
          misused or abused because that authority alone would be
          able to know whether there has been a misuse or abuse
E         of the office by the public servant and not sorne rank
          outsider."

       9. In fairness to her, she concedes that power to remove
  the accused from service is with the State Government of Uttar
F Pradesh and if her contention that power to repatriate would
  rpean the power to remove from service d<?es not find favour,
  it shall be the State Government of Uttar Pradesh which would
  be competent to grant sanction.

       10. Mr. R.G. Srivastava, learned counsel representing the
G accused, however, contends that the expression removal from
  office would mean termination from service and undisputably
  in the facts of the present case it was the State Government of
  Uttar Pradesh which was competent to terminate the service
  of the accused. According to him, removal from office would
H mean removal from permanent employment.
  STATE OF UTIARAKHAND v. YOGENDRA NATH                       241
    ARORA [CHANDRAMAULI KR. PRASAD, J.]
     11. In view of the rival submissions, the question which falls   A
for determination is as to whether the expression removal from
his office would mean dislodging him from holding that office
and shifting him to another office. In other words, the power of
the State Government of Uttarakhand to repatriate the accused
would mean that it has power to remove. In our opinion, office        B
means a position which requires the person holding it to
perform certain duties and discharge certain obligations and
removal from his office would mean to snap that permanently.
By repatriation, the person holding the office on deputation may
not be required to perform that duty and discharge the obligation     c
of that office, but nonetheless he continues to hold office and
by virtue thereof performs certain other duties and discharge
certain other obligations. Therefore the power to repatriate
does not embrace within itself the power of removal from office
as envisaged under Section 19(1 )(c) of the Act. The term
                                                                      0
removal means the act of removing from office or putting an
end to an employment. The distinction between dismissal and
 removal from service is that former ordinarily disqualifies from
future employment but the latter does not. Hence, we reject this
submission of Ms. Srivastava.
                                                                      E
     12. The view which we have taken finds support from the
decision of this Court in the case of V.K. Sharma v. State
(Delhi Admn.), 1975 (1) SCC 784 in which it has been held
as follows:
                                                                      F
     "..... The purport of taking the sanction from the authority
     competent to remove a corrupt government servant from
     his office is not only to remove him from his temporary
     office but to remove him from government service."

     13. We are told by Ms. Srivastava that the request of the        G
State Government of Uttarakhand for sanction of prosecution
of the accused is still pending before the State Government of
Uttar Pradesh. Hence, we deem it expedient that the latter
takes decision on the request so made, if already not taken,
within 8 weeks from the date of communication of this order. It       H
    242       SUPREME COURT REPORTS                  [2013) 5 S.C.R.


A is made clear that we are not expressing any opinion in regard
  to the merit of the request made by the State Government of
  Utfarakhand and it shall be decided by the State Government
  of Uttar Pradesh on its own merit in accordance with law.

        14. Let a copy of this order be forwarded to the Chief
8
    Secretary of the State Government of Uttar Pradesh for
    appropriate action forthwith.

          15. In the result, we do not find any merit in this appeal and
    it is dismissed accordingly with the aforesaid observation.
c
    B.B.B.                                        Appeal dismissed.