High Court of KeralaSingle Judge2022-03-25Writ petitions allowed; Ext.P5 quashed; Governm...

D.S. Radhakrishnan and A. Babu v. State of Kerala and others; Premachandran Nair v. State of Kerala and others

Case / Petition Number:WP(C) No.11847/2021 & WP(Crl.) No.510/2021

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: Sunil Thomas
Judgment Date: 2022-03-25
Court Decision / Holding: Writ petitions allowed; Ext.P5 (sanction in WP(Crl.) No.510/2021) quashed. Government sanction found not legally sustainable; prosecution may proceed by the competent authority only after obtaining appropriate sanction in accordance with law.
Final Disposition: Writ petitions allowed; Ext.P5 quashed; Government sanction set aside; prosecution to be pursued with proper sanction from the competent authority.

Parties to the Case

Appellants / Petitioners

D.S. Radhakrishnan
A. Babu
Premachandran Nair

Respondents

State of Kerala represented by Secretary, Water Resources Department, Secretariat, Thiruvananthapuram
Director, Vigilance and Anti-Corruption Bureau
Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau
Managing Director, Kerala Water Authority

Legal Representation & Advocates

Counsels for Petitioners

• N. Krishna Prasad
• Imam Grigorios Karat
• Yogamaya M.G
• Deepak Varughese Mathew
• S. Rajeev
• K.K. DheerendraKran
• V. Vinay
• M.S. Aneer
• Sarath K.P.

Counsels for Respondents

• Rekha S.
• George Johny
• Mary Benjamin
• P. Benjamin Paul

Case Synopsis & Summary

The two connected writ petitions challenge the validity of a sanction order to prosecute Kerala Water Authority employees under the Prevention of Corruption Act, 1988. The petitioners in WP(C) No.11847/2021 are D.S. Radhakrishnan and A. Babu; in WP(Crl.) No.510/2021 the petitioner is Premachandran Nair, a retired water authority official. Following investigation in Crime No.2/2012, a final report was filed and sanction for prosecution sought by the Vigilance and Anti-Corruption Bureau (VACB). Ext.P3 shows sanction declined by the Water Authority, while the Government later granted sanction by Ext.P5. The petitioners contend that the sanctioning authority is the Kerala Water Authority under Section 19(1)(c) of the Prevention of Corruption Act, 1988, not the Government; hence government sanction is invalid. They rely on Prince Mathew and others v. State of Kerala (2020 KHC 9391) to argue that sanction by an incompetent authority vitiates the prosecution. The respondents contend Government sanction is proper and that the Water Authority cannot grant sanction. After hearing, the court holds that the Government sanction is not legally sustainable and quashes Ext.P5 in the criminal petition, while permitting the competent authority to proceed with prosecution after obtaining appropriate sanction under law. The court directs fresh, valid sanction if required, so the prosecution can proceed through the correct process.

Provisions of Law Cited

Prevention of Corruption Act, 1988 Section 13(2) read with Section 13(1)(d)Indian Penal Code Section 120-BPrevention of Corruption Act, 1988 Section 19(1)(c)Prevention of Corruption Act, 1988 Section 19(1)(b)

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners submit that sanction to prosecute under the PC Act should emanate from the Water Authority, which is the employer under Section 19(1)(c). Government sanction, Ext.P5, is not legally sustainable as the Water Authority is a separate statutory entity. They rely on Prince Mathew (2020 KHC 9391) to contend that sanction by an incompetent authority vitiates the prosecution and that the Government has no role in the employment relationship of the petitioners. They urge a fresh, valid sanction from the competent authority under law.

Contentions of Respondents

The respondents defend the Government sanction as proper, arguing that sanction to prosecute can be issued by the State. They contend the Water Authority cannot independently grant sanction and that Ext.P5 reflects valid procedural compliance under relevant statutes. They maintain the Government’s involvement is appropriate to authorize prosecution, given the public interest and statutory framework.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Prince Mathew and others v. State of Kerala and others	2020 KHC 9391	Mentioned Only	Cited by petitioners to illustrate that sanction by an incompetent authority can be set aside; the current judgment references the principle but does not overrule or distinguish it, instead applying the principle to quash the government sanction.

Diagnostic Tool

Beta

Does this judgment govern your specific facts?

Don't risk relying on a distinguishable precedent. Enter your facts or proposition below. We will test it against D.S. Radhakrishnan and A. Babu v. State of Kerala and others; Premachandran Nair v. State of Kerala and others and instantly map out authorities that support, challenge, or govern your position.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** ## **WP(C) NO. 11847 OF 2021** ## **PETITIONERS:** - **1 D.S. RADHAKRISHNAN AGED 62 YEARS S/O. DAMODARAN NAIR, HOUSE NO. 57A, VISHNU NAGAR, KERALADITHYAPURAM, POWDIKONAM P.O. THIRUVANANTHAPURAM 695 588.** - **2 A BABU, AGED 57 YEARS S/O. APPU K., AMAL HOUSE , T.C. NO. 30/998, KUTHIRAKADAU LANE, VATTIYOOR KAVU P.O., THIRUVANANTHAPURAM 695 036.** **BY ADVS.** - **N.KRISHNA PRASAD IMAM GRIGORIOS KARAT YOGAMAYA M.G DEEPAK VARUGHESE MATHEW** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY , WATER RESOURCES, DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 036.** - **2 THE DIRECTOR, VIGILANCE AND ANTI CORRUPTION BUREAU, DIRECTORATE PMG, VIKAS BHAVAN P.O., OPPOSITE KSRTC DEPOT, THIRUVANANTHAPURAM 695 033.** - **3 THE MANAGING DIRECTOR, KERALA WATER AUTHORITY, JALA BHAVAN, OBSERVATORY HILLS, VELLAYAMBALAM POST, THIRUVANANTHAPURAM 695 033.** - **4 DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, DIRECTORATE, PMG, VIKAS BHAVAN, P.O. OPPOSITE KSRTC DEPOT, THIRUVANANTHAPURAM 695 033. BY ADVS. SMT. REKHA S., SENIOR GOVERNMENT PLEADER SRI.GEORGY JOHNY, STANDING COUNSEL MARY BENJEMIN SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY** WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 2 **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION ON 25.03.2022, ALONG WITH WP(Crl.).510/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 3 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SUNIL THOMAS** **FRIDAY, THE 25[TH] DAY OF MARCH 2022 / 4TH CHAITHRA, 1944** **WP(CRL.) NO. 510 OF 2021** ## **PETITIONER/ACCUSED:** **1 PREMACHANDRAN NAIR AGED 56 YEARS S/O. KRISHNAPILLAI M, GOKULAM, VENKITTAKALA, CHULLIMANOOR, THIRUVANANTHAPURAM 696541 (RETIRED OVERSEER GRADE-II, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, NEDUMANGAD, THIRUVANANTHAPURAM) BY ADVS. S.S.RAJEEV K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER SARATH K.P.** ## **RESPONDENTS/STATE:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, WATER RESOURCES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001.** - **2 DIRECTOR VIGILANCE AND ANTI - CORRUPTION BUREAU, DIRECTORATE, PMG, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033.** - **3 DEPUTY SUPERINTENDENT OF POLICE VIGILANCE AND ANTI - CORRUPTION BUREAU, DIRECTORATE, PMG, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM 695 033.** - **4 MANAGING DIRECTOR KERALA WATER AUTHORITY, JALA BHAVAN, OBSERVATORY HILLS, VELLAYAMBALAM, THIRUVANANTHAPURAM 695033. BY ADVS. SMT. REKHA S., SENIOR GOVERNMENT PLEADER SRI.GEORGY JOHNY, STANDING COUNSEL P.BENJAMIN PAUL** **THIS WRIT PETITION (CRIMINAL) HAVING COME UP FOR ADMISSION** **ON 25.03.2022, ALONG WITH WP(C).11847/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 4 ## **JUDGMENT** ## **Dated this the 25[th] day of March, 2022** **[WP(C) No.11847/2021 & WP(Crl.) No.510/2021]** The petitioners in both the writ petitions, were the employees of the Kerala Water Authority. On allegation of corruption, Crime No.2/2012 was registered for offences punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code. After investigation, Final Report was laid. Sanction was sought under the Prevention of Corruption Act by issuing Ext.P2 request of the Deputy Superintendent of Police, Vigilance and AntiCorruption Bureau, Southern Range, Thiruvananthapuram. Accordingly, Water Authority conducted a joint inspection and by Ext.P3 in W.P. (Crl.) No.510/2021, sanction was refused. 2. Vigilance had also addressed the Government for appropriate sanction. In fact, by virtue of Ext.P5 WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 **==> picture [7 x 7] intentionally omitted <==** in W.P.(Crl.) No. 510/2021 issued by the Government, sanction was granted by the Government to prosecute the petitioners and all the accused. This is under challenge in the present proceedings. 3. The specific contention of the petitioners is that the person who is to grant the sanction is the Kerala Water Authority, which has virtually considered that request for sanction and by Ext.P3 proceedings in W.P.(Crl.) No.510/2021, sanction was declined. It is also seen that on the other hand, Government had granted sanction. 4. The learned Counsel for the petitioners vehemently contended that Government is not the appropriate authority. It was contended that the employees had been and continued to be the employees of Kerala Water Authority, which is a separate statutory authority. According to the petitioners, by virtue of Section 19(1)(c) of the WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 6 Prevention of Corruption Act, their sanctioning authority is Water Authority and not governed by Section 19(1)(b) of Prevention of Corruption Act. 5. Heard Mr.N.Krishna Prasad, learned Counsel for the petitioner in W.P.(C.) No.11847/2021, Mr.K.K.Dheerendra Krishnan, learned Counsel for the petitioner in W.P.(Crl.) No.510/2021, Smt. Rekha S., learned Senior Government Pleader and Mr. Georgy Johny, learned Standing Counsel for the Kerala Water Authority. 6. Accordingly, the petitioners relied on the decision reported in _**Prince Mathew and others v. State of Kerala and others [2020 KHC 9391]**_ wherein, after holding that sanction was granted by an incompetent authority, the Court set aside the order. This Court had relegated the parties to a stage where the competent authority was directed get a fresh sanction order for the prosecution in accordance with law. It seems that the Government WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 **==> picture [7 x 7] intentionally omitted <==** has no role in relation to the employment of the petitioners. I feel that the facts is so clear that the sanction granted by the Government is not legally sustainable and is liable to be set aside. In the result, the writ petitions are allowed. Ext.P5 in W.P.(Crl.) No.510/2021 stands quashed. This will not stand in the way of the competent authority prosecuting the employees in accordance with law after obtaining appropriate sanction. **Sd/-** **SUNIL THOMAS** **JUDGE** SKP/25-3 WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 8 ## **APPENDIX OF WP(C) 11847/2021** **PETITIONERS EXHIBITS: EXHIBIT P1 TRUE COPY OF THE APPOINTMENT ORDER OF THE 2ND PETITIONER DATED 11/01/1995 ISSUED BY THE DEPUTY CHIEF ENGINEER OF THE AUTHORITY. EXHIBIT P2 TRUE COPY OF THE FIRST INFORMATION REPORT DATED 2/1/2012 REGISTERED BY THE 4TH RESPONDENT. EXHIBIT P3 TRUE COPY OF THE ORDER OF SUSPENSION DATED 29/5/2012 OF THE FIRST PETITIONER ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 19/7/2013 REVOKING THE SUSPENSION OF THE FIRST PETITIONER. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 19/7/2013 REVOKING THE SUSPENSION OF THE SECOND PETITIONER. EXHIBIT P6 TRUE COPY OF THE ORDER DATED 21/10/2014 ISSUED BY THE CHIEF ENGINEER OF THE AUTHORITY. EXHIBIT P7 TRUE COPY OF THE JDUGMENT DATED 19.07.2013 IN WRIT PETITION (CIVIL) NO. 23562/13. EXHIBIT P8 TRUE COPY OF THE COMMUNICTION DATED 17/5/2018 ADDRESSED BY THE 2ND RESPONDENT TO THE 3RD RESPONDENT. EXHIBIT P9 TRUE COPY OF THE LETTER DATED 17/4/2019 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P10 TRUE COPY OF THE COMMUNICATION DATED 11/07/2019 ISSUED BY THE SECOND RESPONDENT TO THE THIRD RESPONDENT. EXHIBIT P11 TRUE COPY OF THE G.O. (RT) NO. 270/2021/WRD DATED 22.04.2021. EXHIBIT P12 TRUE COPY OF THE QUERY/REQUEST DATED 03.04.2021 SUBMITTED BY THE PETITIONERS THROUGH COUNSEL. EXHIBIT P13 TRUE COPY OF THE REPLY DATED 29.04.2201 ISSUED BY THE STATE PUBLIC INFORMATION OFFICER AND EXECUTIVE ENGINEER, (VIGILANCE) OF THE AUTHORITY.** ## **RESPONDENTS' EXHIBITS: NIL** WP(C) No.11847/2021 & WP(Crl.)No. 510/2021 9 ## **APPENDIX OF WP(Crl) 510/2021** **PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE COPY OF THE FIR IN CRIME NO.2/2012/SRT OF VACB THIRUVANANTHAPURAM DATED 02.01.2012 EXHIBIT P2 A TRUE COPY OF THE REQUEST SUBMITTED BY THE SUPERINTENDENT OF POLICE VIGILANCE AND ANTICORRUPTION BUREAU DATED 17.05.2018 EXHIBIT P3 A TRUE COPY OF THE REQUEST TO REVIEW THE PROSECUTION SUBMITTED BY THE 4TH RESPONDENT TO THE 2ND RESPONDENT DATED 17.04.2019 EXHIBIT P4 A TRUE COPY OF THE REQUEST SUBMITTED BY THE 2ND RESPONDENT TO THE 4TH RESPONDENT DATED 11.07.2019. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 22.04.2021 GO(RT)NO.270/2021WRD ISSUED BY THE 1ST RESPONDENT** ## **RESPONDENTS' EXHIBITS** ## **TRUE COPY** **P.A.TO JUDGE**