By Adv. R. S. Agrawal :
In SC’s opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage.
THE Supreme Court has pointed out in very clear terms, in the judgement of the case -Sunny Abraham v. Union of India and Another, delivered on December 17, 2021, that in the event, a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The decision- making Bench consisting of Justices L. Nageswara Rao and Aniruddha Bose, has added further, that the fact that initiation of proceeding received approval of the Disciplinary authority could not lighten the obligation on the part of the employer (in this case, the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. The SC has quoted two relevant sub-clauses (2) and (3) of the Rule 14 which contemplates independent approval of the Disciplinary Authority at both stages-for initiation of enquiry and also drawing up or cause to be drawn up the charge memorandum. In the event, the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub-clause (3) would render the said charge memorandum fundamentally defective, not capable of being validated retrospectively.
Life cannot be breathed into the stillborn charge memorandum. In the SC’s opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. The Delhi HC in the appellant’s case primarily examined the issue as to whether having regard to the Rules, a chargesheet or charge memorandum could be given ex-post facto approval or not. The main distinguishing feature between the case of the appellant and the case –Union of India and others v. B.V. Gopinath [(2014) 1 SCC 351] is that in facts of the latter judgement, the subject charge memorandum did not have the ex-post facto approval. Stand of the respondents is that there is no bar on giving ex-post facto approval by the Disciplinary Authority to a charge memorandum and so far s the present case is concerned, such approval cures the defect exposed in Gopinath’s case. On behalf of the appellant, the expression “non est” attributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasised to repel the argument of the respondent-authorities.
The HC had accepted the respondents’ argument mainly on two counts. First, there was no ex-post facto approval to the charge memorandum in Gopinath’s case. Approval implies ratifying an action and there being no requirement in the concerned Rules for prior approval, ex-post-facto approval could always be obtained. Regarding the charge memorandum being declared non est, it was held by the HC that indeed it could be argued that the use of the expression would indicate that the chargesheet was illegal and void for want of approval. Two decisions – Ashok Kumar Das v. University of Burdwan –(2010) 3 SCC 616 and Bajaj Hindustan Ltd. v. State of Uttar Pradesh –(2016) 12 SCC 613; were cited in support of the contention that “approval includes ratifying an action”. The appellant, at the material point of time was an Asst. Commissioner of Income Tax. The authorities issued a memorandum of charges (charge memorandum) proposing to hold an inquiry against him on November 18, 2002 for major penalty under Rule 14 of the Central Civil Services Rules of 1965. Disciplinary proceeding was initiated against him on September 19, 2002. Allegation against him was that while functioning as an Income Tax Officer in Surat during the year 1998, he, in collusion with a Deputy Commissioner of Income Tax, had conducted a survey under section 133A of the Income Tax Act, 1961 in 5 proprietary group concerns of one Mukeshchandra Dahyabhai Gajiwala and his family and demanded Rs five lakh other than legal remuneration from the said individual through his advocate for settling the matter. It was further alleged in the articles of charge that he, along with the said Deputy Commissioner, had demanded Rs two lakh from the same individual and later on, the Dy. Commissioner K. K. Dhawan accepted the said amount. Disciplinary proceeding was initiated against the appellant with the approval of the Disciplinary Authority – the Finance Minister on September 19, 2002.
On November 18, 2002, charge memorandum was issued to the appellant. The charge memorandum was, however not specifically approved by the Finance Minister. Enquiry Officer was appointed, who submitted his report on July 13, 2007 and the Central Vigilance Commission (CVC) concurred with the findings of the enquiry officer and appellant was served with both the reports and advice of the CVC. Till the filing of the Original Application (O.A.) before the Principal Bench of the Central Administrative Tribunal (CAT), the appellant instituted several proceedings, mainly on procedural irregularities before the CAT and the HC. In the decision of the case of Gopinath, the Principal Bench of the CAT had held on February 5, 2009, while examining the same Rule, that in absence of the approval of the charges by the competent authority, further proceedings in the disciplinary case could not be sustained. This view was ultimately upheld by in the SC, by another Bench with the same strength in the case- Union of India v. Gopinath on September 5, 2013. The ratio of this judgement is sheet-anchor of the appellant’s case. The SC has said in the judgement that it was conscious of the fact that the allegations the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal, in its judgement, which was set aside by the Delhi HC, had reserved liberty to issue a fresh memorandum of charges under Rule 14 of the Rules of 1965 as per Rules laid down in the matter, if so advised.
Thus, the department’s power to pursue the matter has been reserved and not foreclosed. For these reasons, the SC has set aside the High Court’s judgement and restored the Central Administrative Tribunal Principal Bench’s Judgement of April 20, 2015 in O.A. No.1157/2014 subject to certain modification in operational part of it, in terms of Paragraph 16 of this judgement. In view of the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, the SC has directed that in the event, the department wants to continue with the matter and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course. The appeal has been allowed in these terms.