2021 (12) TMI 1443 - SC - Indian Laws

Levy of penalty under Rule 14 of the Central Civil Services (Classification Control and Appeal) Rules 1965 - issuance of memorandum of charges (charge memorandum) proposing to hold an inquiry against him - chargesheet or charge memorandum could be given ex-post facto approval or not - HELD THAT - The main distinguishing feature between the case of the appellant and that decided in B.V. Gopinath 2013 (9) TMI 1219 - SUPREME COURT is that in the facts of the latter judgment 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 as 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 emphasized to repel the argument of the respondent authorities. The High Court sought to distinguish the case of B.V. Gopinath 2013 (9) TMI 1219 - SUPREME COURT with the facts of the present case on the ground that in the case of the appellant the Disciplinary Authority had not granted approval at any stage and in the present case ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The High Court thus considered the fact that in the case of B.V. Gopinath the proceeding stood concluded whereas in the appellant s case it was still running when ex-post facto approval was given. That was the point on which the ratio of B.V. Gopinath was distinguished by the High Court. The absence of the expression prior approval in the aforesaid Rule would not have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law. Whether there would be any difference in the position of law in this case vis- -vis the case of B.V. Gopinath? - HELD THAT - In the latter authority the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum - What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our 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. Considering 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 we direct 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 is allowed.

Summary

Issues Involved:
1. Validity of the charge memorandum issued without prior approval of the Disciplinary Authority.
2. Applicability of ex-post facto approval to the charge memorandum.
3. Interpretation of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

Detailed Analysis:

Issue 1: Validity of Charge Memorandum Issued Without Prior Approval of the Disciplinary Authority
The appellant, an Assistant Commissioner of Income Tax, faced a disciplinary proceeding initiated on 19th September 2002, with a charge memorandum issued on 18th November 2002. The charge memorandum was not specifically approved by the Finance Minister at the time of issuance. The appellant argued that without the approval of the competent authority, the charge memorandum was non est (not in existence) in the eye of the law, relying on the precedent set in B.V. Gopinath vs. Union of India [(2014) 1 SCC 351]. The Supreme Court in B.V. Gopinath held that a charge memorandum lacking approval from the Disciplinary Authority is non est, and further proceedings based on such a memorandum cannot be sustained.

Issue 2: Applicability of Ex-Post Facto Approval to the Charge Memorandum
The respondents contended that ex-post facto approval by the Disciplinary Authority could cure the defect of the initial lack of approval. They argued that there is no explicit requirement in the Rules for prior approval, and thus, ex-post facto approval should be permissible. The High Court accepted this argument, distinguishing the appellant’s case from B.V. Gopinath on the grounds that ex-post facto approval was not present in the latter case. The High Court referenced cases like Ashok Kumar Das and Bajaj Hindustan Limited to support the view that approval includes ratification, which can be granted ex-post facto.

Issue 3: Interpretation of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965
Rule 14 of the CCS (CCA) Rules, 1965, was central to the case. Sub-clauses (2) and (3) of Rule 14 require independent approval of the Disciplinary Authority at both the initiation of the enquiry and the drawing up of the charge memorandum. The Supreme Court in B.V. Gopinath interpreted these clauses to mean that the charge memorandum must have the Disciplinary Authority's approval before issuance. The High Court’s reasoning that ex-post facto approval could validate the charge memorandum was found to be inconsistent with this interpretation. The Supreme Court emphasized that a charge memorandum issued without prior approval is fundamentally defective and cannot be retrospectively validated.

Conclusion:
The Supreme Court set aside the High Court's judgment and restored the Central Administrative Tribunal's decision, which quashed the charge memorandum due to the lack of prior approval by the Disciplinary Authority. The Tribunal had allowed for the possibility of issuing a fresh charge memorandum if the Disciplinary Authority deemed it necessary. The Supreme Court directed that if the department wishes to continue the proceedings, a new charge memorandum must be issued within two months, and the proceeding shall follow the due course.

Final Order:
The appeal was allowed, and the judgment of the High Court was set aside. The judgment of the Principal Bench of the Central Administrative Tribunal delivered on 20th April 2015 in O.A. No. 1157 of 2014 was restored with the modification that a fresh charge memorandum, if required, must be issued within two months. There were no orders as to costs.