Must the Governor personally accord sanction to prosecute a State employee under the Prevention of Corruption Act, 1988?

Paragraph 24It is an admitted fact that the accused herein was an employee of the State and comes under Section 19(1)(b) of the PC Act. As per Section 19(1)(b) of the PC Act, a person who is or was an employee of the State at the time of commission of the alleged offence shall not be removed from his office without the sanction of the Government of the concerned State. According to Article 166 of the Indian Constitution and the Corresponding Tamil Nadu Business Rules, all executive actions of the Government of a State shall be expressed to be taken in the name of the Governor. On a keen perusal of both the provisions, i.e, Article 166 of the Indian Constitution and Section 19(1) (b) of the PC Act, it can be seen that there is no explicit mention that the Governor himself has to accord a sanction or that the Secretary to the Government is not a competent authority to accord such a sanction. What is mandatory is that all the executive actions shall be expressed to be taken in the name of Governor.

Paragraph 32In this regard, it is relevant to rely upon the judgment of the Hon’ble Supreme Court of India in the case of “Shivendar kumar v. State of Maharashta [(2001) 9 SCC 303]” wherein it was held as follows: “As noted earlier, Section 6(1)(b) is applicable in the present case. The said provision does not specify any particular officer as the competent authority to grant sanction. It only states that the State Government, without whose sanction the delinquent officer cannot be removed from office/post, is the competent authority to pass the order of sanction. From the Sanction Order, which is available on the record, it is clear that the Secretary, Medical Education Department passed/signed the order of sanction of prosecution against the appellant on behalf of the Governor. It is not the case of the appellant that the Secretary had no authority to act on behalf of the State Government. It follows that the order of sanction in the present case was passed by the Secretary of the Medical Education Department with the authority of the Governor of the State Government. No material on record has been brought to our notice to show that the Governor had issued any order authorising an officer other than the Secretary of the Department to pass order of sanction in the case. If that was the case, then the appellant should have produced the order or at least raised the contention that an Officer other than the Secretary had been authorised for that purpose. No such material appears to have been produced. When the Secretary was being examined in support of the Sanction Order passed by him such question was also put to him. Reliance is placed on a sentence in his deposition that he is not the authority to remove the appellant. This statement, without further material, cannot from the basis of the contention that the Secretary, Medical Education Department was not competent to pass the order of sanction on behalf of the State Government. The Government functions through its officers. The Secretary is the Head of the Department and the Principal Officer representing the State Government in the concerned Department. Unless specific material is produced to show that some other officer was competent to deal with the matter of sanction of prosecution against the appellant it can be reasonably assumed that the Secretary of the Department is the competent authority to pass the order of sanction. The object of Section 6 or for that matter Section 197 of the Criminal Procedure Code, which is a pari materia provision, is that there should be no unnecessary harassment of a public servant; the idea is to save the public servant from the harassment which may be caused to him if each and every aggrieved or disgruntled person is allowed to institute a criminal complaint against him. The protection is not intended to be an absolute and unqualified Immunity against criminal prosecution. In a case where it is seen that a Sanction Order has been passed by an authority who is competent under the law to represent the State Government, the burden is heavy on the party who challenges the authority of such order to show that the authority competent to pass the order of sanction is somebody else and not the officer who has passed the Sanction Order in question.”

Paragraph 33Section 6 of the old Act corresponds to Section 19 of the new Act, and even in Section 19, the provision does not specify any particular officer as the competent authority to grant sanction. It only states that the State Government, without whose sanction the delinquent officer cannot be removed from office. Therefore, in this case, the Secretary of the government had accorded the sanction order on behalf of the Governor. Further, as stated above, the intention of the provision is to save innocent public servant from unwanted legal proceeding and the same shall not be misunderstood as an absolute and unqualified immunity against criminal prosecution. However, on perusal of the materials available on record, this court finds a prima facie case against the accused and the Secretary to the Government, being a competent authority, had gone into the same and had signed the sanctioning order on behalf of the Governor and this Court finds no infirmity in the sanction order and deems the action of the sanctioning authority competent and fit. Accordingly, the second issue is also answered in favour of the prosecution.