CHAPTER
II
PERSONNEL
POLICIES
(f) Conduct, Discipline
& Appeal Rules
3.
DPE/Guidelines/II(f)/3
Sanction for prosecution of a public servant.
The Ministry of Home Affairs
have brought
it to our notice that in a recent case the sanction for prosecution of a
public
servant who could be removed from his office by the Board of Directors
of a
Public Sector Corporation was held by a Court of Law as null and void on
the
ground that there was no proper application of mind by the sanctioning
authority
viz. the Board of Directors, as the necessary materials viz.
documents
and other evidence collected by the prosecution, to accord sanction for
prosecution were never placed before the Members of the Board of
Directors and
consequently they could not have applied their minds to the issue. It
was stated
that the Chairman of the Board of Directors had merely narrated the
facts of the
case to the Members of the Board giving his assessment that it was a fit
case
for prosecution, and the members had approved the sanction for
prosecution.
2.
Section 6 of the Prevention of Corruption Act, 1947 provide that
previous
sanction of the authority competent to remove a public servant from his
office
is necessary for his prosecution under section 161 or 164, or Section
165 of the
Indian Penal Code or under sub-section (2) or sub-section (3-A) of
Section 5 of
the Prevention of Corruption Act. In order to avoid a lacunae of the
type
referred to above, the following procedure has been evolved in
consultation with
the Ministry of Law, for adoption by the Public Sector Enterprises in
respect of
the public servants who can be removed from their office by the Board of
Directors.
a. A distinct item regarding the grant of sanction for prosecution of the concerned public servant should be on the regular agenda of the meeting of the Board of Directors so that all the members present may be aware of the subject matter which will come up for discussion.
b. Relevant papers, documents, evidence or any other material furnished by the Prosecution, should be placed before the members of the Board of Directors.
c. All the members of the Board of Directors in the light of the documents, evidence before them are required to apply their mind to the facts and circumstances of the case. Having done that, they are to take a decision, unanimously or by a majority vote, to grant the sanction or to withhold it.
d. A record of the proceedings of the meeting regarding (a) to (c) above, should be kept properly in the minute book, as an adequate evidence of the collective application of mind by the Board of Directors.
(BPE DO No. 2(3)/79-BPE(GM-I)
dated
6th March, 1979)
***