TMI Blog2017 (8) TMI 1570X X X X Extracts X X X X X X X X Extracts X X X X ..... SENAPATI, S.K. SRIVASTAVA, SHRI H.A. SIDDIQUI, SHRI PAUL GEORGE [ 2013 (9) TMI 1219 - SUPREME COURT] , formal approval was sought from the disciplinary authority for the continuation of the disciplinary proceedings from the current stage as well as the charge memo, which had been issued earlier. The said approval was granted. Petition allowed. - W.P.(C) 7649/2015 - - - Dated:- 25-8-2017 - MR SANJIV KHANNA AND MR CHANDER SHEKHAR, JJ. For The Petitioner : Ms. Madhurima Tatia, Advocate For The Respondent : Mr. Puneet Jain and Ms. Christi Jain JUDGEMENT SANJIV KHANNA, J. In view of similarity of the issue raised, these writ petitions are being disposed of by this common judgment. However, we would be noticing the facts separately. 2. The issue raised in these writ petitions relate to the effect and the impact of the decision of the Supreme Court in Union of India and Ors. Vs. B.V. Gopinath, 2014 (1) SCC 351. In the said decision the Supreme Court had examined Rule 14 (2) and Rule 14(3) of the Central Civil Services (Classification Control and Appeal), Rules 1965 (Rul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the chargesheet on the ground that the same was never approved by the Finance Minister. The OA was disposed of with the direction that Sunny Abraham would raise this objection or point before the disciplinary authority and in the case of an adverse order, he could approach the Tribunal again. 9. Sunny Abraham filed another OA No.1407/2012 before the Principal Bench of the Tribunal which was disposed of vide order dated 30th April, 2012, with the direction to the authorities to make sincere efforts to dispose of the pending enquiry within three months. 10. By letter/order dated 13th June, 2012, the representation of the petitioner that the charge-sheet was invalid and bad in law as it was not approved by the Finance Minster was rejected on the ground that the SLP against the decision in B.V. Gopinath (Supra) was pending before the Supreme Court. 11. Sunny Abraham then filed another OA No.2286/2012 before the Principal Bench of the Tribunal which was disposed of as withdrawn vide order dated 17th December, 2012. In the meanwhile, the representation made by the petitioner against the enquiry report and the opinion of the CVC were rejec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... PAWAN VED 15. Pavan Ved had joined as Income-tax Officer on 31st December, 1981 and was promoted as Deputy Commissioner of Income-tax on 28th January, 1990. He was served with the charge memorandum dated 13 th September, 2002. Enquiry officer appointed, vide report dated 19 th March, 2004 held that the charges were not proved. However, the disciplinary authority did not agree and the disagreement note dated 6th June, 2005 was issued. Pavan Ved thereafter submitted his reply on 20th July, 2005. After about 8 years the disciplinary authority sought advice from the Union Public Service Commission vide letter dated 15th January, 2013. Union Public Service Commission vide advice dated 17th June, 2013 suggested that interest of justice would be met by imposing a penalty of compulsory retirement from service and further to forfeit the admissible amount of gratuity. The disciplinary authority vide communication dated 12th July, 2013 sought comments from Pavan Ved. This communication had made reference to the Commission‟s advice dated 17th June, 2013. 16. At that stage, Pavan Ved, filed OA No.4476/2013 on the ground that the decision to initiate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r disciplinary authority is of the opinion that there are grounds for enquiring into the truth of any imputation of misconduct or misbehavior against a government servant, it may enquire into, or appoint under this rule or under the provisions of Public Servants (Inquiries) Act, 1850 an authority to enquire into the truth. Sub-rule 3 states where it is proposed to have any enquiry under Rule 14 and 15, the disciplinary authority shall draw or cause to be drawn substance of imputation of conduct or misconduct into definite and distinct articles of charge. Clause (ii) refers to what the statement of misconduct or behaviour should contain, i.e. the statement of relevant facts and list of documents and witnesses. DECISION IN B.V. GOPINATH (SUPRA), CONSEQUENCES, AND ITS APPLICATION TO THE PRESENT CASE 20. In B.V. Gopinath (Supra,) an Indian Revenue Service Officer was charge-sheeted and disciplinary proceedings were initiated in terms of Rule 14. It was noticed that the Finance Minister was the competent authority and he had to decide whether or not departmental proceedings were to be initiated and thereupon charge memo was to be issued. Referring to Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges 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. ..... 21. Paragraph 52 as afore-quoted upholds the findings of the Tribunal and the High Court quashing the charge-sheet. The contention that no prejudice has been caused was rejected as factually incorrect. It was observed that as the charge-sheet was not issued by the disciplinary authority, it was without authority of law and, therefore, non est in the eyes of law. The requirement of Sub-rule 3 to Rule 14 was that the disciplinary authority must draw up or cause to be drawn up the substance of imputation of misconduct or misbehavior, albeit there was a requirement of approval of the charge-sheet or articles of charge to be taken from the disciplinary authority. The charges may be drawn up by the authority to whom power has been delegated but the proposed articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Burdwan Ors,. (2010) 3 SCC 616 and Bajaj Hindustan Limited versus State of Uttar Pradesh and Others, (2016) 12 SCC 613 and also refer to different paragraphs of the judgment in B.V. Gopinath (Supra). We would quote from the note prepared for grant of approval for initiation of the departmental proceedings in the two different cases to expound the legal position in the factual matrix of the two cases. 23. The question raised before us is whether the ex-post facto approval granted by the Finance Minster to validate the charge-sheet was valid, even if the said permission was not taken at the initial stage when the charge- sheet was issued. The stand of the officers facing departmental enquiry is primarily predicated on the language and the words used by the Supreme Court in paragraph 52, which is to the effect that the charge-sheet which has been issued without the authority, is non est in law. The contention of the Union of India, on the other hand, is that Rule 14(3) does not prescribe or hold that there should be a prior approval. Reference is made to Ashok Kumar Das (Supra), wherein it has been held as under: 11. In Black's Law Dictionary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the approval of the State Government. But since the words used are with the approval of the State Government , the Executive Council of the University could determine the terms and conditions of service of the non- teaching staff and obtain the approval of the State Government subsequently and in case the State Government did not grant approval subsequently, any action taken on the basis of the decision of the Executive Council of the University would be invalid and not otherwise. 24. In the said case, the issue had arisen as the resolution of the Executive Council dated 26th June, 1995 was approved by the State Government on 10th October, 2002. The contention was that resolution dated 26 th June, 1995 would not apply to any promotions made prior to the said date because, under the statute, the Executive Council could determine the terms and conditions of service of non-teaching staff with the approval of the State Government and not otherwise. It is apparent the said contention was rejected by drawing distinction between the expression approval and prior approval . Distinction was also drawn between approval and permission for in the latter prior appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supra) in entirety:- 55. 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 approved by the disciplinary authority was non est in the eye of the law. We would also refer to paragraph 26 of the same decision, which again for the purpose of convenience, is reproduced below:- 26. Mr Patwalia countered the submission of the learned Additional Solicitor General that it will not be in the interest of good administration to drop the inquiries which are already going on if the charge-sheets issued in such inquiries are required to be approved by the Finance Minister. In this context, it was submitted that such a contention has already been rejected by this Court in Coal India Ltd. v. Saroj Kumar Mishra [(2007) 9 SCC 625 : (2008) 2 SCC (L S) 321] . Our attention was also drawn to the following excerpt from the said case: (SCC p. 632, para 19) 19. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo. 29. Before we elucidate and dwell any further, we would like to refer to another judgment of the Supreme Court. In Secretary, Ministry of Defence and Others versus Prabhash Chandra Mirdha, (2012) 11 SCC 565, it was observed that the legal position as laid down by the Supreme Court interpreting Article 311 of the Constitution is that the removal and dismissal of a delinquent employee or misconduct must be by an authority not below the appointing authority. However, this does not mean that the disciplinary proceedings cannot be initiated by an authority lower than the appointing authority. Referring to the decision in Inspector General of Police Vs. Thavasiappan (1996) 2 SCC 145 it was held as under:- 6. In Inspector General of Police v. Thavasiappan [(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been initiated after the due approval of the disciplinary authority, which in the present case is the Finance Minister. Pertinently, in the present cases when the approval with regard to initiation of disciplinary proceedings was granted, specific details as to the allegations and charges were recorded in the case of Sunny Abraham and Pavan Ved. For the sake of convenience, we would like to reproduce the relevant portions of the notes on which approval for initiation of disciplinary proceeding was granted. The said portions in the case of Sunny Abraham read as under:- 2. Briefly, it may be recounted that the CBI had registered a preliminary Enquiry number 9 (A)/99-GNR dated 20th May, 99 against Shri K. K. Dhawan, DCIT and Shri Sunny Abraham, ITO. It had been alleged that Shri Sunny Abraham,the then ITO ward 2 (8), being in collusion with Sh. K. K. Dhawan, DCIT had, with ulterior motive, conducted a survey under section 133 (A) of the Income Tax Act, 1961, at 5 proprietary group concerns of Shri Mukeshchandra Dahyabhai Gajiwala and his family, on 3.3.1998. That the assessee had been harassed and mentally tortured during the survey, with the ulterior motive of o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /ITX/082 dated 21-8- 2000 advised initiation of major penalty proceedings against Sh. Sunny Abraham, ITO as well as Sh. K. K. Dhawan. On another referral (in the case of Sh. K. K. Dhawan) for reconsideration of the advice, the CVC, vide its OM No. 99/ITX/082 dated 13-5- 2002, has reiterated the advice for major penalty in the case. In the case of Pawan Ved, the relevant portion of the note reads as under:- This is the case of Shri P.K. Ved, an Officer of the 1981 Batch of IRS (Civil List No. 81011, date of birth 12.8.1954). A vigilance inspection of the work of Shri Ved during his tenure as DCIT, Spl. Range, Rajkot was conducted by the CCIT, Ahmedabad and various acts of omission and commission were pointed out. A regular inspection was separately conducted by the CIT, Rajkot and further serious lapses made in various cases by Shri Bed were pointed out. Shri Ved was confronted with the findings in inspection and his version on the same was obtained. The facts have been examined in detail ( nothings on pages 9/N to 62/N). Explanation could not be provided by the officer in respect of various lapses/irregularities as under:- (i) Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the disciplinary authority is quashed by a tribunal or a Court on technical grounds, the authority has to be given an opportunity to conduct enquiry afresh from the stage where it stood before alleged vulnerability surfaced. Question of back wages etc. has to be decided after fresh enquiry is concluded. Reinstatement does not automatically entitle the employee to back wages. 33. Referring to the decision in Ananta Saha (supra), counsel for Pavan Ved had submitted that where the initial action is not in consonance with the law, subsequent proceedings would not have sanctity. Legal maxim sublato fundamento cadit opus, which means in case foundation is removed, the superstructure falls, is applicable. In the said case, it was held that initial initiation of disciplinary proceedings was bad and not by a competent authority. Thereafter on remand, the competent authority without application of mind had put its signature in a routine manner on a note for initiation of a fresh enquiry into the charges. Thus, there was non- application of mind at that stage which had vitiated the second enquiry. In the present context, we do not think that the said ratio c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulsory retirement and forfeiture of admissible amount of gratuity. However, OA No.4476 of 2013 was preferred before any order was passed by the disciplinary authority. The disciplinary authority had written a letter dated 24th July, 2013 to Pavan Ved asking for his representation with reference to the advice given by the Union Public Service Commission. In the facts and circumstances, we believe that the disciplinary authority must first examine and decide the different aspects and thereafter pass an order which would examine and deal with all the aspects including the question of delay. This means the authority would have to examine whether the delay had occasioned at the behest and instance of Pavan Ved or for some other reason, and the effect and consequences. We do not even know whether the disciplinary authority would, in fact, impose any penalty and, if so, which penalty. It would not be correct and fair to pre-judge the issue without their being an order examining and deciding different aspects. 36. In Chairman, Life Insurance Corporation of India and Others versus A. Masilamani, (2013) 6 SCC 530, the Supreme Court while dealing with the question, whether when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determine if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated only on the ground of delay in their conclusion. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , State of M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L S) 638 : (1991) 16 ATC 514 : AIR 1990 SC 1308] , Union of India v. Ashok Kacker [1995 Supp (1) SCC 180 : 1995 SCC (L S) 374 : (1995) 29 ATC 145] , Prohibition Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L S) 686 : (1996) 33 ATC 745] , State of A.P. v. N. Radhakishan [(1998) 4 SCC 154 : 1998 SCC (L S) 1044 : AIR 1998 SC 1833] , M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L S) 919 : AIR 2006 SC 3475] , Union of India v. Kunisetty Satyanarayana[(2006) 12 SCC 28 : (2007) 2 SCC (L S) 304] and Ministry of Defence v. Prabhash Chandra Mirdha [(2012) 11 SCC 565 : (2013) 1 SCC (L S) 121 : AIR 2012 SC 2250] .) 37. Papers produced before us show that in the present case a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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