Validity of Prosecution Order in PC Act 1988

[vinod kumar Namdeo]

Respected Sir,
The following query is pertaining to validity of sanction order of a Group A Central Government officer working for affairs of Central government.
As per the para 6.2 ,chapter VII of the Vigilance Manual of Central Vigilance Commission (CVC) New Delhi :
The validity of a sanction issued by the Central Government may be proved by production of the following documents in the court:
(i) A copy of notification issued under section 77(2) of the constitution
(ii) A copy of Gazette Notification relating to the appointment of the officer signing the order to the office held by him at the time of the issue of the issue of the order of sanction.

The above two documents are not submitted along with the original Prosecution sanction order in the Final Report submitted by the prosecution.
Furthuremore, In the prosecution sanction order it is mentioned –
WHEREAS ,the President of Union of India ,being the authority competent to remove Shri accused from service ,having carefully verifying the accusations and the circumstances of this case and scrupulously perusing the case records and connected documents and after due application of mind, and have come to conclusion that shri Accused had committed an offence punishable U/s 7,13(1)(d) and 13(2) of the Prevention of Corruption Act ,1988 and as such he should be prosecuted in the court of law for the said offence.

But in an interim reply by the prosecution to the court it is mentioned that –
That, the Hon’ble President of India is the Disciplinary authority in respect of Shri accused ,therefore the prosecution sanction in respect of Shri accused was approved by the Hon’ble Minister . After approval of competent authority the prosecution sanction was signed by me as Director (Vigilance I).
Thus there is ambiguity in the authority approving the Prosecution Sanction , as to whether The President or The Minister ,has actually perused the case records and applied his mind before approving the sanction order. There is no mention of the Minister in the prosecution sanction order.
Futhuremore
i) there is no document submitted by the prosecution which shows that that the Minister has been empowered by the President of India to sanction the prosecution order.
ii) The prosecution sanction order is signed by an officer whose name is not published in Gazette of India .
In view of the above kindly provide your valuable legal advice-
1. Can the court take cognizance in the absence of the above two important documents and under above ambiguous situation .
2. What is the effect on the legality and admissibility of a Prosecution sanction order if the name of the officer signing it is not published in Gazette notification. What is the law pertaining to Gazette notification .
3. Can the validity of such Prosecution sanction be challenged in the court and what is the relief that can be expected.
With regards
Vinod Kumar

[Dr. Ashok Dhamija]

Firstly, please note that in Parliamentary system of Government, the President does not exercise all the powers himself. These powers are exercised by Ministers or other officers in the name of the President and/or on his behalf, in accordance with Article 77 of the Constitution, which is as under:

“77. Conduct of business of the Government of India.-

(1) All executive action of the Government of India shall be expressed to be taken in the name of the President

(2) Orders and other instruments made and executed in the name of the President shall be authenticated in such manner as may be specified in rules to be made by the President, and the validity of an order or instrument which is so authenticated shall nor be called in question on the ground that it is not an order or instrument made or executed by the President

(3) The President shall make rules for the more convenient transaction of the business of the Government of India, and for the allocation among Ministers of the said business.”

Please note that under clause (3) of Article 77 of the Constitution, “rules of business” have been framed by the President of India in the form of the Government of India (Allocation of Business) Rules, 1961, which being the statutory rules govern as to how the business of the Government of India has to be transacted by various Ministries, Departments, etc. These Rules lay down which ministry / department would handle which matter.

Likewise, under the above provision of the Constitution, the Government of India (Transaction of Business) Rules, 1961, have also been framed by the President of India, which lay down the authorities who can exercise various executive powers of the Government, in the name of the President.

Thirdly, under clause (2) of Article 77 of the Constitution, rules have been framed by the President of India in the form of the Authentication (Orders and other Instruments) Rules, 1958, which lay down which officer can authenticate the orders to be issued in the name of the President.

While it is not possible for me to comment on the facts of your case (since I have not seen the detailed facts of your case), generally speaking in such matters, the decision to accord sanction for prosecution for Group A officers of Central Government is taken by the Minister concerned under the above Rules on behalf of the President. The President himself would not take the decision for Group A officers; this decision is taken on his behalf by Minister under the authority of the above Rules. Once the decision to grant sanction for prosecution has been taken in the file by the Minister concerned (on behalf of the President), the actual order is authenticated / signed by an officer of the Ministry under the above Authentication Rules. Under the said Rules, an order can generally be signed by Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or Assistant Secretary to the Government of India. In your case, you have mentioned that it has been signed by a Director level officer, who is between the ranks of Joint Secretary and Deputy Secretary.

This is the general legal position in sanction matters. If these requirements are satisfied, then the sanction may be considered as legally valid and cognizance can be taken by the court. You may show your detailed papers to some local legal expert in your city to get opinion as to whether these requirements have been satisfied in your case.

[Note: Some contents in the above reply have been taken from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-592-6).]

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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