IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-11381-2016 (O&M)
Reserved on: 23.08.2023.
Pronounced on: 15.09.2023

Tulsi Ram Mishra … Petitioner
Versus
State of Punjab and others … Respondents
CORAM: HON’BLE MR. JUSTICE ANUPINDER SINGH GREWAL

• PC ACT Sections 7 and 13(2) – Discharge of public servant for want of sanction In the event of discharge of a public servant for want of sanction or illegality of sanction, the matter ought not be closed but revived on the grant of sanction by the competent authority Prosecution in absence of sanction would be vitiated Public servant may take objections with regard to validity or absence of a valid sanction at cognizance stage but after the commencement of the trial he may take objections at the time of conclusion of the trial, but the trial shall not be scuttled in the midst This Court does not find any manifest illegality in the impugned order discharging respondent No.2 for the time being, but at the same time this Court deems it fit to direct the State of Punjab to forward all documents pertaining to the consideration for grant of sanction to prosecute respondent No.2 to the Central Government.

(c) Consequences of invalid sanction
18. Now, this Court would proceed to determine the consequencesof invalid sanction or sanction accorded by an incompetent authority. I would not accept the contention of counsel for the petitioner that the question of improper or invalid sanction could only be determined at the conclusion of the trial and the accused has to prove that the order had caused grave prejudice to him for the reason that this question is no longer res integra. The Supreme Court in the case of Nanjappa v. State of Karnataka (supra), after examining the provisions of Sections 19(1), 19(3) and 19(4) of the PC Act, had held that sub-sections (3) and (4) of Section 19 of the PC Act stipulate challenge to the validity of the order of sanction or validity of proceedings at the appellate or revisional stage before the higher court and
not before the Special Judge and that it does not forbid a Special Judge from passing an order of discharge if a valid order sanctioning prosecution is not produced in terms of Section 19 (1) of the PC Act. The relevant paragraphs
of the judgement are reproduced hereunder:-
“7. We have heard the learned counsel for the parties at considerable length. This appeal must, in our opinion, succeed on the short ground that in the absence of a valid previous sanction required under Section 19 of the Prevention of Corruption Act, the trial court was not competent to take cognizance of the offence
alleged against the appellant.

10. A plain reading of Section 19(1)(supra) leaves no manner of doubt that the same is couched in mandatory terms and forbids courts from taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15
against public servants except with the previous sanction of the competent authority enumerated
in clauses (a), (b) and (c) to sub-section (1) of Section 19. The provision contained in subsection (1) would operate in absolute terms but for the presence of sub-section (3) to Section 19 to which we shall presently turn. But before we
do so, we wish to emphasise that the language employed in sub-section (1) of Section 19 admits of no equivocation and operates as a complete and absolute bar to any court taking cognizance of any offence punishable under Sections 7, 10, 11, 13 and 15 of the Act against a public servant except with the previous sanction of the competent authority.

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CRM-M_11381_2016_15_09_2023_FINAL_ORDER Punjab & Haryana High Court

HINDUSTAN CONSTRUCTION vs NATIONAL HIGHWAYS CA 4658/23 24/08/23 [ Ravindra JJ ]

[ SUPREME COURT OF INDIA ]

• Arbitration and Conciliation Act Section 34 Majority award A dissenting opinion cannot be treated as an award if the majority award is set aside When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award Minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority There is no occasion for anyone such as the party aggrieved by the majority award, or, more crucially, the party who succeeds in the majority award, to challenge the soundness, plausibility, illegality or perversity in the approach or conclusions in the dissenting opinion – That dissenting opinion would not receive the level and standard of scrutiny which the majority award (which is under challenge) is subjected to. Therefore, the so-called conversion of the dissenting opinion, into a tribunal’s findings in the event a majority award is set aside and elevation of that opinion as an award, would, with respect, be inappropriate and improper.

important paras 

26. In Dakshin Haryana Bijli Vitran Nigam Ltd, the court recollected the previous holding in Ssangyong Engg. & Construction Co. Ltd. v. NHAI (hereafter, “Ssangyong Engg. & Construction Co. Ltd.”)23, wherein the court had set aside the majority award, but issued consequential directions in the peculiar facts of the case:
“In Ssangyong [Ssangyong Engg. & Construction Co. Ltd. v. NHAI, (2019) 7 SCR 522], this Court upheld the view taken by the dissenting arbitrator in exercise of its powers under Article 142 of the Constitution, in order to do complete justice between the parties. The reason for doing so is mentioned in para 77 i.e. the considerable delay which would be caused if another arbitration was to be held. This Court exercised its extraordinary power in Ssangyong [Ssangyong Engg. & Construction Co. Ltd. v. NHAI,] keeping in mind the facts of the case, and the object of expeditious resolution of disputes under the Arbitration Act.”
However, the court did not, in Dakshin Haryana Bijli Vitran Nigam Ltd (supra)
direct the dissenting opinion to be treated as an award. In the opinion of this court, that approach is correct, because there appears to be a slight divergence in thinking between Russel and Gary Born. The former, Russel is careful to point out that a dissenting opinion is not per se an award, but “is for the parties’ information only and does not form part of the award, but it may be admissible as evidence in relation to the procedural matters in the event of a challenge.” However, Gary Born does not expressly say that the opinion is not a part of the award. That author yet clarifies that “This is an essential aspect of the process by which the parties have an opportunity to both, present their case, and hear the reasons for the Tribunal’s decision; not hearing the dissent deprives the parties

of an important aspect of this process.”
27. It is, therefore, evident that a dissenting opinion cannot be treated as an award if the majority award is set aside. It might provide useful clues in case there is a procedural issue which becomes critical during the challenge hearings. This court is of the opinion that there is another dimension to the matter. When a majority award is challenged by the aggrieved party, the focus of the court and the aggrieved party is to point out the errors or illegalities in the majority award. The minority award (or dissenting opinion, as the learned authors point out) only embodies the views of the arbitrator disagreeing with the majority. There is no occasion for anyone- such as the party aggrieved by the majority award, or, more crucially, the party who succeeds in the majority award, to challenge the soundness, plausibility, illegality or perversity in the approach or conclusions in the dissenting opinion. That dissenting opinion would not receive the level and standard of scrutiny which the majority award (which is under challenge) is subjected to. Therefore, the so-called conversion of the dissenting opinion, into a tribunal’s findings, [in the event a majority award is set aside] and elevation of that opinion as an award, would, with respect, be inappropriate and improper.

28. In view of the findings recorded earlier, this court is of the opinion that all the appeals have to succeed. Therefore, C. A. No. 4658/2023, C. A. No. 4659/2023; C. A. No. 4660/2023; C. A. No. 4661/2023 and C. A. No. 4662/2023 are allowed; all judgments of the Delhi High Court, which were the subject matter of challenge in those appeals are set aside. The awards, which were the subject matter of challenge, and to the extent they were set aside, are hereby upheld and restored. The direction in the awards, to the extent they required compounded monthly interest payments, are modified. Instead, the NHAI shall pay uniform interest on the amounts due, on the head concerned, i.e., construction of embankment, to the extent of 12% from the date of award to the date of payment, within eight weeks from today. All the above appeals are allowed in these terms. There shall be no direction to pay costs.

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40706_2012_5_1501_46332_Judgement_24-Aug-2023

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