Whether public authority can refuse to supply information in respect of investigation in departmental enquiry?

It can thus be seen that the Division Bench of the Commission has observed that the word 'investigation' as used in section 8(1)(h) should be construed rather broadly and should include all inquiries, verification of records, assessments and so on which may be ordered in specific cases and for all such cases, the inquiry or investigation should be taken as completed only after the competent authority makes a "prima facie", determination about the presence or absence of guilt on receipt of the investigation/enquiry report from the investigation/enquiry officer. It is clear that the competent authority/disciplinary authority can form a "prima facie", opinion on conclusion of the preliminary enquiry or the fact finding enquiry. The conclusion/finding, which the competent authority would reach on completion of the regular enquiry cannot be said to be "prima facie" opinion. It has to be a final opinion.

18. Thus, the two judgments of the Commission cited on behalf of the petitioner cannot come to the aid of the petitioner in this case. However, at the same time, I do not propose to record any final or binding opinion or conclusion as to whether 'investigation' within the meaning of Section 8(1) (h) of the Act would include only an investigation by police or a similar agency in the matter of prosecution of an offence or whether it would also include the investigation by the disciplinary authority in a matter of initiation of disciplinary authority. I proceed on the assumption that the 'investigation' as used in Section 8(1)(h) of the Act, would include 'investigation', by the disciplinary authority before the initiation of the disciplinary enquiry. However, any such investigation would stand 'concluded', once the chargesheet is served on the delinquent employee. It is not possible to accept that investigation in such a case would continue till the conclusion of the departmental inquiry. Thus, the said contention raised on behalf of the petitioner has to be rejected. In the present case, admittedly, the two chargesheets have been served on the first respondent and thus the investigation, if any, stands concluded. Thus, it is not possible to accept that the information if furnished would impede the process of any such investigation.

19. The Commission, in my considered view, is right in holding that the public authority or the PIO cannot just stay content, while refusing to supply the information, by claiming that the information if supplied would impede the process of investigation and/or for that matter the apprehension or prosecution of any offender. It is necessary for the public authority to demonstrate with some semblance as to how the furnishing of information would impede the process of investigation.

IN THE HIGH COURT OF BOMBAY AT GOA

Writ Petition No. 338 of 2019

Decided On: 25.06.2019

The State Public Information Officer, The Deputy Director of Vigilance  Vs. Vinesh V. Arlekar and Ors.

Hon'ble Judges/Coram:

C.V. Bhadang, J.

Citation: AIR 2020 Bom 27

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Whether a party can claim mandamus for enforcement of decision recorded in file noting?

A noting recorded in the file is merely a
noting simpliciter and nothing more. It
merely represents expression of opinion by
the particular individual. By no stretch of
imagination, such noting can be treated as a
decision of the Government. Even if the
competent authority records its opinion in
the file on the merits of the matter under
consideration, the same cannot be termed as
a decision of the Government unless it is
sanctified and acted upon by issuing an order
in accordance with Articles 77(1) and (2) or
Articles 166(1) and (2). The noting in the file
or even a decision gets culminated into an
order affecting right of the parties only when
it is expressed in the name of the President
or the Governor, as the case may be, and
authenticated in the manner provided in
Article 77(2) or Article 166(2). A noting or
even a decision recorded in the file can
always be reviewed/reversed/overruled or
overturned and the court cannot take
cognizance of the earlier noting or decision
for exercise of the power of judicial review.”

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7649 OF 2018
[Arising out of SLP (C) No.20188 of 2017]
Pimpri Chinchwad New Township
Development Authority 
V
Vishnudev Cooperative Housing
Society & Ors.

Abhay Manohar Sapre, J.
Dated:August 03, 2018

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Whether sanction for prosecution of public servant is vitiated if different authorities have given different opinion before final decision?

In Sethi Auto Service Station and another v. Delhi
Development Authority and others (2009) 1 SCC 180
, this Court observed as
under: -
“14. It is trite to state that notings in a
departmental file do not have the sanction of law to
be an effective order. A noting by an officer is an
expression of his viewpoint on the subject. It is no
more than an opinion by an officer for internal use
and consideration of the other officials of the
department and for the benefit of the final
decision-making authority. Needless to add that
internal notings are not meant for outside exposure.
Notings in the file culminate into an executable
order, affecting the rights of the parties, only when
it reaches the final decision-making authority in the
department, gets his approval and the final order is
communicated to the person concerned.”
10. In view of the law laid down by this Court, as above, we
are of the opinion that the sanction cannot be held invalid only
for the reason that in the administrative notings different
authorities have opined differently before the competent
authority took the decision in the matter. It is not a case
where the Finance Minister was not the competent authority

to grant the sanction. What is required under Section 19 of
the Prevention of Corruption Act, 1988 is that for taking the
cognizance of an offence, punishable under Sections 7, 10, 11,
13 and 15 of the Act committed by the public servant, is
necessary by the Central Government or the State
Government, as the case may be, and in the case of a public
servant, who is neither employed in connection with affairs of
the Union or the State, from the authority competent to
remove him. Sub-section (2) of Section 19 of the Act provides
that where for any reason whatsoever any doubt arises as to
whether the previous sanction, as required under sub-section
(1) should be given by the Central Government or the State
Government or any authority, such sanction shall be given by
that Government or authority which could have been
competent to remove the public servant from his office at the
time when the offence was alleged to have been committed.
Sub-section (3) of Section 19 of the Prevention of Corruption
Act, 1988 provides as under: -
“(3) Notwithstanding anything contained in the
Code of Criminal Procedure, 1973 (2 of 1974), -
(a) no finding, sentence or order passed by a
special Judge shall be reversed or altered by a
court in appeal, confirmation or revision on the
ground of the absence of, or any error,
omission or irregularity in, the sanction
required under sub-section (1), unless in the
opinion of that court, a failure of justice has in
fact been occasioned thereby;
(b) no court shall stay the proceedings under this
Act on the ground of any error, omission or
irregularity in the sanction granted by the
authority, unless it is satisfied that such error,
omission or irregularity has resulted in a
failure of justice;
(c) no court shall stay the proceedings under this
Act on any other ground and no court shall
exercise the powers of revision in relation to
any interlocutory order passed in any inquiry,
trial, appeal or other proceedings.”
11. Having gone through the copy of note-sheets relating to
sanction in question placed before us as part of rejoinder
affidavit, it is evident that there had been proper application of
mind on the part of the competent authority before the
sanction was accorded. Our perusal of the said record does
not indicate that any decision was taken by the competent
authority, at any point of time, not to grant sanction so as to
give the decision to grant sanction the colour of a review of any
such earlier order, as has been contended before us. The
opinion of CVC, which was reaffirmed and ultimately prevailed
in according the sanction, cannot be said to be irrelevant for
the reason that clause (g) of Section 8 of the Central Vigilance
Commission Act, 2003 provides that it is one of the functions
of the CVC to tender advice to the Central Government on
such matters as may be referred to it by the Government.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2491 OF 2014
Vivek Batra 
V
Union of India and others 
Dated:October 18, 2016.
Citation: (2017) 1 SCC 69

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When file noting can be used as supporting/corroborative material?

In this context, the reliance placed upon some of the decisions of this Court by Mr. Krishnan Venugopal learned senior counsel appearing for the first respondent needs to be considered. The learned senior counsel for the first respondent relied upon the decisions reported in Sethi Auto Service Station (supra) and Shanti Sports Club (supra) for the proposition that 'noting' in the department files do not have sanction of law to be an effective order unless it culminate into an executable order affecting the rights of the parties and only when it reaches the final decision making authority in the department get his approval and the final order is communicated to the person concerned. There can be no dispute with regard to the said principle stated in the above referred to two decisions. But in the case on hand, we have extensively noted the various sequence of events relating to the factum of surrender effected by M/s. Dalmia to the extent of 130 hectares long prior to 16.04.1999 and an extent of 196.58 hectares in its letter dated 16.04.1999 itself and subsequently by its letter dated 27.03.2001, its desire to sanction the whole of the mining lease covered by M.L.No.2010. We also referred to various communications which emanated from the office of the Director of Mines and Geology confirming acceptance of surrender proposed by M/s. Dalmia which came to an end on 31.01.2002. In the light of the said voluminous correspondence between M/s. Dalmia and the Department of Mines and Geology of the State Government available on record the reference to file noting dated 28.05.2001, by the Director of Mines and Geology, was only an additional supporting material to confirm the act of surrender effected by M/s. Dalmia and its final conclusions as recorded in the proceedings of the Director of Mines and Geology. We therefore do not find any support for the first respondent by referring to the above two decisions.

Supreme Court of India

M/S Muneer Enterprises Mine ... vs M/S Ramgad Min.&Amp; Mining ... on 12 March, 2015

Bench: Fakkir Mohamed Kalifulla, Shiva Kirti Singh

Citation;(2015) 5 SCC366

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