2009 (7) TMI 1318

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....thority once again and on or about 14.9.2004 sanction to prosecute the respondent was granted. Questioning the legality and/or validity of the said order, the respondent filed a writ petition before the High Court of Punjab and Haryana. By reason of the impugned judgment, the said writ petition was allowed opining that the State has no power of review and in any event, the impugned order could not have been passed as the State while passing its earlier order dated 15.12.2003 has exhausted its jurisdiction. 4. Mr. Vivek K. Goyal, learned Additional Advocate General appearing on behalf of the appellants, would urge that the jurisdiction for grant of sanction being an administrative one, the State has the requisite power to review its earlier order. It was urged that it is incorrect to contend that power once exercised stands exhausted. 5. Mr. Jasdeep Singh Gill, learned counsel appearing on behalf of the respondent, on the other hand, urged that the order impugned in the writ petition having been passed by the State on the same material, the said order was wholly illegal. 6. The respondent is a public servant. The Governor of the State of Punjab is his appointing authorit....

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....e of Gujarat [(1997) 3 SCC 622] 8. The concerned authority cannot also pass an order of sanction subject to ratification of a higher authority. [See State (Anti Corruption Branch) Govt. of N.C.T. of Delhi and Anr. v. Dr. R.C. Anand and Anr. [(2004) 4 SCC 615]. 9. The High Court called for the entire records. It perused the same. It noticed that several queries were raised but remained unanswered. The Departmental proceeding initiated against the respondent was dropped. The recommendations therefore were made not to grant sanction on the basis whereof the aforementioned order dated 15.12.2003 was passed. A finding of fact has been arrived at by the High Court that no material was placed before the competent authority. Only a communication had been received from the Director, Vigilance Bureau dated 22.6.2004 wherein reference of the letter dated 26.5.2004 was made. It, according to the High Court, was not a new material. In the aforementioned situation, the High Court, opined: "Once the Government passes the order under Section 19 of the Act or under Section 197 of the Code of Criminal Procedure, declining the sanction to prosecute the concerned official, reviewing suc....

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....hs time from the date, the reference is made by the vigilance department. 4. Although the grant or refusal of prosecution sanction is a matter within the sole discretion of the competent authority. However, the authority can refuse to grant prosecution sanction for reason such as..." 14. The First Information Report was lodged in 2001. The proceeding for grant of sanction was initiated in that year. Several queries were made to the Vigilance Department. Such queries had to be made as the respondent herein made a representation that he had been falsely implicated at the instance of some of the officers of the Vigilance Department who had set up a tout therefor. 15. The Hon'ble Minister noticed the said representation and by an order dated 15.12.2003 refused to grant sanction, stating: "3. After minutely going through the averments made in the representation submitted by the said officer the Hon'ble Minister issued order for submitted the file. After scrutinizing the file by Hon'ble Minister it was found that the Vigilance Department has been unable to provide the clarification with regard to certain points as asked by the Panchayat Department from....

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....In terms of Clause (3) of Article 166 of the Constitution of India all orders of the government must be issued in the name of the Governor. Such orders, however, may be signed by any authorities specified in Rule 9 of the Rules of Business. By reason of either Rule 8 or Rule 9 of the Rules of Business, no substantive power is conferred. The Rules of Executive Business inter alia provided for three authorities before whom the records are to be placed, viz., Minister of the Department, Chief Minister and Cabinet. It has not been contended that in terms of the Rules of Executive Business read with the Standing Order, the Minister of the Department concerned could not have refused to grant sanction. What is contended before us is that Rule 8 of the Rules of Business should have been complied with. 20. It is now well-known that in the event it appears from the order and the records produced before the court, if any occasion arises therefor that even if a valid order is not authenticated in terms of Clause (3) of Article 166 of the Constitution of India, the same would not be vitiated in law. Failure to authenticate an executive order is not fatal. The said provision is directory in n....