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TMI Blog2013 (10) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... Leave granted in all the SLPs . 2. The central issue that arises for consideration in these appeals is: whether the charge sheet issued against the respondents is without jurisdiction, in view of the fact that the disciplinary authority, i.e., the Finance Minister, had not given approval for issuing the charge memo, even though he had given approval for initiation of major penalty proceedings against the respondents. 3. Since the issue raised in the present appeals is purely legal, it would not be necessary to make a detailed reference to the facts of individual 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a grave jurisdictional error in quashing the charge sheet, which was issued by the competent authority, in accordance with the procedure prescribed. 8. She has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental 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 Direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the disciplinary proceedings were initiated against the respondent in terms of Rule 14 of CCS ( CCA ) Rules, which prescribed the procedure for imposing major penalty. Relying on Rule 14(3), she again drew our attention to the expression that the disciplinary authority shall draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charge. She submitted that the entire procedure under Rule 14(3) has been followed. Under Rule 14(4) again disciplinary authority is required to either 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... & Ors .,1995 Supp (4) SCC 469 Forest Range Officer & Ors . Vs. P. Mohammad Ali & Ors ., 1993 Supp (3) SCC 627 State of Madhya Pradesh Vs. M.V . Narasimhan (1975) 2 SCC 377. 13. Learned ASG further submitted that the High Court has wrongly drawn a distinction between approval for initiation of the disciplinary proceedings and approval for issuance of charge memo by treating them as two distinct steps. She reiterated that approval for initiation of departmental proceeding would include approval of the charge memo by disciplinary authority. 14. The 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 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry, charge sheet may not be issued or approved. To illustrate, it was pointed out that there may be circumstances where the Disciplinary Authority, after approving the initiation of proceedings but before giving approval to the charge sheet, comes to a conclusion that a lesser charge or no charge is made out against the concerned officer. In such circumstances, the Disciplinary Authority proceeds accordingly and may drop the proceedings. Thus, it is for this reason that Rule 14 provides that the Disciplinary Authority has to apply its mind separately at two different 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 Financ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j Kumar Mishra. 2007 (9) SCC 625 Our attention was also drawn to the following excerpt from the said case: "the floodgate argument also does not appeal to us.The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This court is bound to determine the respective rights of the parties." Thus, it was submitted that the Civil Appeals are required to be dismissed. 26. Similar submissions were also reiterated by Mr. Brijender Chahar , learned 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 Art ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emo of charge need not be served because the charges may not be made out or a lesser charge could be made out. Mind has to be applied to the evidence and material on record pursuant to initiation of disciplinary proceedings to again come to a fresh decision as to whether now, a charge memo deserves to be issued. Thus, the material before the Disciplinary authority is different at both the stages of Rule 14(2) and Rule 14(3) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. 30. Learned senior counsel submitted that the appellant has not denied and in fact accepted that the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel relied on Samaraditya Pal, Law Relating to Public Service: A treatise on the law applicable to Government and Public Undertaking, third Edition (2011) Pgs. 761, 767. 38. We have considered the elaborate submissions made by the learned counsel for the parties. 39. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the 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 Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consequences on the professional as well as the personal life of the officer suspended. The office order recognizing the gravity of the consequences ensures that the decision in relation to suspension/review of suspension shall be taken by the highest authority in the department i.e. the Finance Minister . In matters related to reference to CVC for first stage advice, the competent authority is the Secretary (Revenue). Similarly, for reconsideration of CVC's first stage advice, again the competent authority is the Secretary (Revenue), but in case of disagreement with CVC's first stage advice 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 Minis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minster. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister. 43. Accepting the submission of Ms. Indira Jaising would run counter to the well known maxim delegatus non protest delegare (or delegari ). The principle is summed up in "Judicial Review of Administrative Action"De Smith, Woolf and 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), Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo. We are unable to accept the submission of the learned Addl. Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether 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 impositi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finite 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. Undoubtedly, this Court in the case of P.V.Srinivasa Sastry & Ors . Vs. Comptroller and Auditor General & Ors . 1993 (1) SCC 419 has held that 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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