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Judgment
The petitioners have filed the present petition challenging the order dated 24/10/2007, passed by the respondent No.2(Annexure-P/11).
Brief facts of the case are that, a W.P. No.10172/2013 has been filed before this in the style of Public Interest Litigation by one Prakash Meda and Suran Gundiya, resident of District - Jhabua against the alleged irregularities committed in the Municipality, Jhabua in relation to Jhoola-Chakri project of the Municipality, Jhabua and wastage of public money and grant to undue benefits to ineligible persons.
The allegations against the petitioner No.2, herein, was levied to the effect that, he was working on the post of 'Moharrir in the Municipality, Jhabua. However, after sometime, without following the procedure, he was promoted to the post of Deputy Revenue Inspector, which was reserved for the Scheduled Tribe category and the petitioner no.1 was appointed by the President-in-Council, Municipality, Jhabua on the post of Sub-Engineer vide order dated 15/10/2004.
That, two projects were undertaken by the Municipality, Jhabua, namely Joola-Chakri Program and construction of shops at Sajjan Road, Jhabua. It was alleged that in the writ petition that the officers of the Municipality have committed various irregularities in above mentioned projects, as no advertisement was issued, no tender was called, no physical verification of purchased items done and for purchase of Rs. 10 Lac no permission was sought from Collector/Commissioner. Upon such complaint of irregularity, the inquiry in relation to Jjoola-Chakri Program and construction of shops at Sajjan Road, Jhabua was submitted.
Based on the above inquiry reports, the petitioners were suspended and departmental enquiry was conveyed against them and charge-sheet was issued. The petitioners duly replied the charges levied and denied all the allegations and charges imposed against them. Thereafter, vide order dated 9/06/2006, the suspension of the petitioner No.1 was revoked and vide order dated 3/06/2006 the suspension of petitioner No.2 was also revoked. Thereafter, the respondent No.2 Collector, Jhabua vide letter dated 24/10/2007 sought permission to register F.I.R. against the Chief Municipal Officer and other officer, in relation to the matter as referred above.
In the inquiry report submitted by the Sub-Divisional Officer(Revenue) it has been stated that no action has been taken by the petitioners against the illegal constructions of shops at Sajjan Road and it was further stated by him that the petitioner No.2 has been promoted to officiating Chief Municipal Officer, Thandla and undue benefit has been granted to him.
That, pointing out the these facts, the petitioners have also filed a complaint before the Public Complaint Redressal Department, State of M.P. In pursuance of the aforesaid complaint submitted by the petitioners, an enquiry was conducted by the S.D.O.(Revenue) and vide letter dated 7/05/2013, informed that the charge of Chief Municipal Officer, Thandla has not been given to Mr. Bharat Singh Tank(petitioner no.2) and recommended dismissal of the complaint.
The P.I.L. filed by the petitioners was disposed of by this Court with a direction to the respondents to take appropriate action including registration of F.I.R. against the erring officer. As the petitioners were not party to the writ petition in the P.I.L., therefore, they filed a Review Petition bearing No.261/2016 before this Court. The same was disposed of vide order dated 14/07/2017 with a liberty to the petitioners to challenge the letter dated 24/10/2007. In pursuance of the order passed by this Court, the petitioners have filed the present petition.
Learned Senior Counsel appearing on behalf of the petitioners submits that the impugned action of the respondent No.2 in initiating the departmental enquiry and issuing the letter dated 24/10/2007 seeking sanction of prosecution from the respondent no.1 in relation to the petitioners is illegal, incorrect and without jurisdiction. He submits that the petitioners were employees of the Municipality, Jhabua at that relevant point of time and has been appointed by Municipality, Jhabua, therefore, the competent authority, who can grant sanction for prosecution, if offence has been committed, would be President-in-Council of Municipality, Jhabua. That, the inquiry has been initiated on the basis of directions issued by the respondent no.2, who have no jurisdiction over the petitioners and no disciplinary action could be directed against the petitioners by the respondent no.2. Thus, the request made by petitioner No.2 vice letter dated 24/10/2007 for initiation of inquiry proceedings against the petitioners is without jurisdiction and deserves to be quashed.
Learned Senior Counsel for the petitioners has further relied on the judgment passed by the Division Bench of this Court in the case of Heeralal Mishra(Pyasi) Vs. State of M.P. in Criminal Revision No.1157/2016 decided on 9/03/2017. In the said judgment, this Court in Paras - 7 and 9 has held as under :-
The case of the applicant comes u/s 19(1) (c). As per Sec.70 of M.P. Municipalities Act, 1961 a President in Council has been constituted in every Nagar Parishad consist of President and five members. The Revenue Officer, Revenue Inspectors have been appointed by Council u/s 94(4) of the Act. The applicant was appointed u/S 94(4) of the Act. MP Municipal Employees Recruitment and Condition of Service Rules, 1968, Rule 49 provides penalties, which can be imposed on municipal employees and Rule 51 provides disciplinary authority. As per Rule 51, th Municipal Council has the powers to impose any of the penalty specified in Rule 49 on any municipal employee holding post specified in sub sec. 4 of sec. 94 of the Act, and in the case of other municipal employees the standing committee shall have powers to impose any of the said penalty on him.
In the present case, the impugned order of sanction has been passed by the Chief Municipal Officer, who is not competent to accord sanction. Therefore, the sanction is not valid. Thus, the applicant cannot be prosecuted for want of valid sanction. The trial Court has committed illegality, by holding that the sanction given by CMO is valid. Thus, the impugned order dated 28.04.2016 passed by trial Court, is not sustainable and hereby set aside.
Thus, as per the aforesaid judgment, before initiating the prosecution against any person or a Government employee, a sanction is necessary by the Competent Authority.
The respondents have filed their reply and in the said reply they have stated that the present petition is pre-mature petition and in the present case, only direction has been issued for registration of the F.I.R and no steps on prosecution has yet been taken by the respondents. He further submits that the Collector is a Competent Authority for registration of the F.I.R. against the petitioners. He further submits that to register a F.I.R. against erring officer no direction is required to be sought. He submits that as per settled law, the F.I.R. can be lodged by any person against anyone i.e., to say that anyone can be the complainant. Thus, in these circumstances, he submits that the petition deserves to be dismissed.
Heard learned counsel for the parties and perused the record.
As per contention raised by the Government Advocate it is true that the F.I.R. can be lodged by any person against any one. However, in the case of an offence committed by the Government employee, before prosecuting him, sanction of the Competent Authority is necessary. Therefore, the said principle would not be applicable in the present case. So far as under the M.P. Municipalities Act, the Competent Authority is as the President-in-Council and, therefore, as per Section 19(1) (c) of the Prevention of Corruption Act, only the competent authority is entitled to take disciplinary action against the erring officer.
Thus, in the light of the aforesaid, as the impugned letter dated 254/10/2007 has been issued by the respondent no.2, who is not competent authority to issue the same. Accordingly, the writ petition is allowed. The impugned order dated 24/10/2007 is hereby set aside However, the respondents are at liberty to pass a fresh order against the petitioners for lodging the F.I.R. by the Competent Authority.