TMI Blog2013 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... behaviour into definite and distinct articles of charges - The term “cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority - The term “cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed “definite and distinct articles of charge sheet" - These proposed articles of charge would only be finalized upon approval by the disciplinary authority - Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority - However, at the same time it was pointed out that “However, it was open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority” - It was further held that “Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post." During the pendency of these pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dual cases. For convenience and for the purpose of reference only, we advert to the facts as pleaded in Civil Appeal No.__________@ SLP (Civil) No. 6348 of 2011 (Union of India Ors . Vs. B.V.Gopinath ). 4. Mr. B.V . Gopinath joined the Indian Revenue Service in the year 1987 as Assistant Commissioner of Income Tax. It appears that he earned promotion as Deputy Commissioner of Income Tax in 1998, Joint Commissioner of Income Tax in 1999 and Additional Commissioner of Income Tax in 2000. On 7th/8th September, 2005, whilst working on the aforesaid post, Mr. Gopinath (respondent No.1 ) was served with a charge sheet under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 (hereinafter referred to as CCS ( CCA ) Rules"). The said charge sheet was issued on the allegation that in 2003 the respondent was alleged to have approached one Chartered Accountant in Chennai for securing his transfer to Mumbai by offering bribe to the P.A. to the then Minister of State (Revenue). Thus, the charge levelled against the respondent was that he failed to maintain integrity; and exhibited a conduct which is unbecoming of a government servant. The respondent submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, the CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy. 9. She pointed out that upon receipt of a complaint the same is examined by the Chief Vigilance Officer in the office of the Director General, Income Tax (Vigilance). A decision is taken upon examination of the complaint as to whether there is a vigilance angle involved. In case, it is found that a complaint involves a vigilance angle, a preliminary investigation is conducted. During the preliminary investigation, the version of the officer concerned is also taken. Thereafter, the decision is taken by the Chief Vigilance Officer (hereinafter referred to as "CVO ") with the approval of Central Board of Direct Taxes as to whether disciplinary proceedings are to be initiated. In case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deliver or cause to be delivered to the Government servant a copy of the articles of charge. This was also admittedly followed in the present proceeding. She reiterated that a plain reading of Rule 14(3) would show that it permits the disciplinary authority to cause the charge memo to be drawn up by a subordinate authority. 11. The ASG then submitted that the office order No.205 of 2005 was passed in view of the stress on time and resources being felt in the Department of Finance due to insufficient delegation of powers in respect of disciplinary action cases. Accordingly, after considering the recommendations of a Committee formed for this purpose, the office order was passed prescribing the competent decision making authority for various steps in disciplinary action cases in CBEC and CBDT . The office order prescribed the competent authority for granting approval at different stages. It does not prescribe the stages which require approval. She further submitted that the High Court has misinterpreted clause (8) of the aforesaid order. She points out that the expression approval for issuing charge memo"cannot be read as distinct from approval for initiating major penalty procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... next submission of the learned ASG is that the charge sheet is normally not to be quashed unless prejudice is shown to be caused to the delinquent officer. And since the respondent has not alleged any prejudice caused to him by virtue of the charge sheet not having been approved by the disciplinary authority, the charge sheet ought not to have been interfered with. Reliance was placed on State of Uttar Pradesh Vs. Brahm Dutt Sharma Anr ., AIR 1987 SC 943 Executive Engineer, Bihar State Housing Board Vs. Ramesh Kumar Singh Ors ., (1996) 1 SCC 327 Ulagappa Ors . Vs. Div. Commr ., Mysore Ors . AIR 2000 SC 3603 (2) Special Director Anr . Vs. Mohd . Ghulam Ghouse Anr . AIR 2004 SC 1467 and Union of India Anr . Vs. Kunisetty Satyanarayan AIR 2007 SC 906 and The Secretary, Min. of Defence and Ors . Vs. Prabhash Chandra Mirdha 2012 (11) SCC 565 15. In support of her submission that it is not necessary that charge sheet should be framed by the authority competent to impose penalty or that enquiry should be conducted by such authority alone, reliance was placed on Inspector General of Police Anr . Vs. Thavasiappan . 1996 (2) SCC 145 16. Further, it was submitted that it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t stages: ( i ) initiation of proceedings and (ii) approval of charge sheet. 21. In this context, similar submissions were also reiterated by Mr. Shekhar Kumar, learned counsel for respondent in SLP (Civil) No. 25839 of 2011. Referring to Rule 14 (3), learned counsel submitted that charge-memo ought to have been sanctioned by the Disciplinary Authority, especially since there was no sub-delegation of such power in favour of any other officer. 22. The next submission of Mr. Patwalia is that the Office Order No. 205/2005, Clause/ Item No. 8, mandates that the approval of the charge sheet has to be granted by the Finance Minister. This interpretation is fortified by clause 9 of the 2005 office order. Clause 9 requires that if there has to be any dropping/modification/amendment of the charges, after receiving the Written Submission of Defence , then the file has to be put up to the Finance Minister. Learned Senior Counsel states that if dropping/modification/amendment of charges is required to be undertaken by the Finance Minister then it would necessarily mean that the initial approval of the charge sheet has to be sanctioned by the said minister only. It was further submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned senior advocate. Besides, learned senior counsel submitted that the fact that respondent in SLP (Civil) No. 26939 of 2011 belongs to Indian Revenue Service would concomitantly mean that the President of India is the appointing authority and thereby, Disciplinary Authority in his case. However, the said power of the President has been delegated under Article 77 (3) of the Constitution and by the order of the President dated 14th January, 1961 under the Government of India (Allocation of Business) Rules, to the Finance Minister. Thus, the Finance Minister acts as the Disciplinary authority for the purposes of Article 311 of the Constitution and Rule 14 of CCS ( CCA ) Rules. Therefore, the Finance Minister, himself, has to apply his mind and give approval inter alia to the charge sheet. It was further submitted that matters pertaining to any such disciplinary action cannot be further delegated or sub-delegated to any other authority as the President has delegated this authority only to the Finance Minister. 27. Relying on Rule 14 of CCS ( CCA ) Rules, learned senior counsel submitted that the rule contemplates a detailed procedure, consisting of four stages, which has to be co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Charge Memo dated 1st April, 2008 was not approved by the Finance Minister and as such, there was no application of mind by the Finance Minister. Therefore, CAT has rightly quashed the said charge memo. 31. It was further submitted that under the relevant rules, only ancillary actions relating to the issue of charge sheet may be undertaken by a subordinate authority, but the framing of charge sheet requires independent/unbiased application of mind and therefore, Finance Minister has to give approval to the charge memo. 32. Learned senior counsel reiterated that once the disciplinary powers have been delegated by the President of India under Article 77 (3) of the Constitution to the Finance Minister, then such delegated authority cannot be re-delegated/sub-delegated by the Disciplinary Authority, unless statute/ constitution provides for the same. In this context, reliance was placed on Sahni Silk Mills (P) Ltd. Anr . Vs. E.S.I . Corporation 1994 (5) SCC 346 and Director General, ESI Anr . Vs. T.Abdul Razak . (1996) 4 SCC 708 33. Learned senior Counsel further submitted that the provisions of Rule 14 (2) of CCS ( CCA ) Rules are separate provisions. In case, the approval of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e public servant has been considered stated and re- stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated CCS ( CCA ) Rules, 1965. 40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice on approval for referring the case to Department of Personal and Training, the competent authority is the Finance Minister. 42. Clause (8) of the Circular makes it abundantly clear that it relates to approval for issuing charge memo/sanction of prosecution. A plain reading of the aforesaid clause shows that it relates to a decision to be taken by the disciplinary authority as to whether the departmental proceedings are to be initiated or prosecution is to be sanctioned or both are to commence simultaneously. The competent authority for approval of the charge memo is clearly the Finance Minister. There is no second authority specified in the order. We do not agree with Ms. Indira Jaising , learned Additional Solicitor General that the use of the word approval of"is not an expression distinct from approval for"initiating major penalty proceedings. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking approval for issuing charge memo/sanction of prosecution."The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Jowell (Fifth Edition) as follows :- The rule against delegation A discretionary power must, in general, be exercised only by the authority to which it has been committed . It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another." The same principle has been described in Administrative Law"H.W.R . Wade C.F. Forsyth (Ninth Edition), Chapter 10, as follows :- Inalienable discretionary power An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DOP T, issuance of show cause notice in case of disagreement with the enquiry officer report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty; and revision/review/memorial have to be taken by the Finance Minister. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of the Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rule 3(1)( i ) and (3) (1) (iii) of the Central Civil Services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... artmental proceeding must be initiated only by the appointing authority . However, at the same time it is pointed out that However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority."It is further held that Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post." 47. Further, it appears that during the pendency of these proceedings, the appellants have, after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister. 48. Therefore, it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised herein. 49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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