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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 7761 OF 2013
(Arising out of SLP (C.) No. 6348 of 2011)
Union of India & Ors. …Appellants
VERSUS
B.V.Gopinath …Respondent
WITH
CIVIL APPEAL NO.7762 OF 2013
(Arising out of SLP (C.) No. 25534 of 2011)
Union of India …Appellant
VERSUS
K.K. Kapila …Respondent
WITH
CIVIL APPEAL NO.7763 OF 2013
(Arising out of SLP (C.) No. 26939 of 2011)
Union of India & Anr. …Appellants
VERSUS
Sudhir Ranjan Senapati …Respondent
WITH
CIVIL APPEAL NO.7764 OF 2013
(Arising out of SLP (C.) No. 28222 of 2011)
Union of India & Ors. …Appellants
VERSUS
S.K. Srivastava …Respondent
WITH
CIVIL APPEAL NO.7765 OF 2013
(Arising out of SLP (C.) No. 25838 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri H.A. Siddiqui …Respondent
WITH
CIVIL APPEAL NO.7766 OF 2013
(Arising out of SLP (C.) No. 25839 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri Varinder Mehta …Respondent
WITH
CIVIL APPEAL NO.7767 OF 2013
(Arising out of SLP (C.) No. 25841 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri Paul George …Respondent
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. 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 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 his reply to the allegations wherein
he denied the charges levelled against him. He requested
for supply of certain documents. In due course, the Inquiry
Officer and the Presenting Officer were appointed.
5. During the pendency of the inquiry proceedings, the
respondents filed O.A. No.800 of 2008. In these
proceedings, the respondents claimed that the charge
sheet dated 7th/8th September, 2005 is
without jurisdiction, therefore, liable to be quashed,
as the charge memo had not been approved by the Finance
Minister. We may also notice here that prior to filing
of the aforesaid O.A., the respondent had already
approached CAT twice: firstly, seeking direction(s) to
the Union of India to supply all the documents relied
upon in connection with the charge-sheet issued against
him. Secondly, seeking a direction to the appellant for
timely completion of the departmental proceedings
against him. The directions given by CAT in the
aforesaid proceedings, however, have no bearing on the
controversy involved herein.
6. In the present appeal, we are concerned with the
legality or otherwise of the order passed by CAT on 5th
February, 2009 in O.A. No. 800 of 2008. By the aforesaid
order, CAT quashed the charge sheet dated 7th/8th
September, 2005 issued against the respondent on the
ground that there was nothing on record to show that the
Finance Minister approved the charge sheet. The
aforesaid order of CAT was challenged, by way of Writ
Petition (Civil) No. 10452 of 2009, before the Delhi
High Court. By order dated 28th July 2009, which has
been impugned before this court, the Delhi High Court
dismissed the said writ petition.
Appellants’ Submissions:
7. Ms. Indira Jaising, learned Additional Solicitor General
of India appearing for the appellants, submitted that
the High Court as well as the CAT have committed 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 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, the CVO decides to
initiate disciplinary proceedings, the matter is then
referred to the Chief Vigilance Commission for first
stage advice. The Chief Vigilance Commission examines
the first stage advice. In case the Chief Vigilance
Commission concurs with the decision taken by the Chief
Vigilance Officer, a detailed note is prepared for
initiation of disciplinary proceedings which is put up
to the Finance Minister. She emphasised that alongwith
note for initiation of disciplinary proceedings, all
relevant supporting material is also placed before the
Finance Minister. It is upon consideration of the entire
material alongwith the explanatory note that the Finance
Minister takes a decision to initiate departmental
proceedings. In view of the aforesaid elaborate
procedure, the CAT as well as the High Court had
erroneously concluded that such procedure would not
amount to approval of the charge memo.
10. Ms. Jaising further submitted that Office Order No. 205
of 2005 has been misread by the Courts below. She points
out that to appreciate the true purport of the said
office order, a careful consideration needs to be given
to the safeguards available to a delinquent officer
under the Constitution of India and the CCS (CCA) Rules.
Learned ASG then submitted that Article 311 provides for
two safeguards for the delinquent officer: (i) the
officer cannot be dismissed or removed by the authority
subordinate to the appointing authority of the officer
concerned [Article 311(1)]; and (ii) the dismissal or
removal can only be effected after an enquiry in which
the official has been informed of the charges against
him and is given a reasonable opportunity to be heard in
respect of those charges [Article 311(2)]. She submits
that in the present case, none of the two safeguards
have been violated. She has elaborated that 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
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 proceedings”. According to
the learned ASG, the office order dated 19th July, 2005
does not impose any requirement that the charge memo
must be approved by the disciplinary authority. Clause
(8) of the office order, according to Ms. Indira
Jaising, only provides that the Finance Minister is the
competent authority for granting approval “for issuing
charge memo”, and not for “approving the charge memo”.
She submits that the procedure for drawing up the charge
memo commences when approval is sought for initiation of
the disciplinary proceedings. The actual drawing up of
the charge memo is a part of and incidental to the
approval to initiate disciplinary proceedings and is a
ministerial act. The approval to initiate disciplinary
proceedings is the approval to set the law in motion and
carries with it, by necessary implication, all things to
effectuate the same. Therefore, the grant of approval
for initiation of disciplinary proceedings amounts to
grant of approval for issuance of charge memo.
12. The learned ASG further submitted that the office order
does not create any enforceable rights in favour of the
respondent, since the said order is intended for
internal functioning of the department concerned. The
order, she submits, must be given a purposive
interpretation to discern its true import. It was
submitted by the learned ASG, it would be sufficient
compliance with the said order if it is shown that there
was approval by the disciplinary authority to initiate
disciplinary proceedings and approval is granted to the
material on the basis of which the charge memo has been
drawn. In this context, reliance was placed upon Seaford
Court Estates Ltd Vs. Asher,[1] Municipal Corporation of
Greater Bombay and Others Vs. Indian Oil Corporation
Ltd.,[2] State of Karnataka Vs. Appa Balu Ingale &
Ors.,[3] Forest Range Officer & Ors. Vs. P. Mohammad Ali
& Ors.,[4] State of Madhya Pradesh Vs. M.V.
Narasimhan[5].
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.,[6] Executive Engineer, Bihar State
Housing Board Vs. Ramesh Kumar Singh & Ors.,[7] Ulagappa
& Ors. Vs. Div. Commr., Mysore & Ors.[8] Special
Director & Anr. Vs. Mohd. Ghulam Ghouse & Anr.[9] and
Union of India & Anr. Vs. Kunisetty Satyanarayan[10] and
The Secretary, Min. of Defence and Ors. Vs. Prabhash
Chandra Mirdha [11]
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.[12]
16. Further, it was submitted that it is in the interest of
good administration to interpret said the office order
in the manner as contended by the learned ASG since
there are more than 500 enquiries that have been
initiated in the aforesaid manner.
17. Lastly, it was submitted that the appellants, out of
abundant caution, have now amended the procedure and
seek the approval of the Finance Minister for charge
memo.
Respondents’ Submissions:
18. Mr. P.S. Patwalia, learned senior counsel, submitted
that provisions of CCS (CCA) Rules 1965 are applicable
to the respondent, an officer of Indian Revenue Service.
And that since the charge sheet that was issued to him
contemplated a major penalty, Rule 14 of CCS (CCA) Rules
is attracted. Reliance was placed upon Registrar of
Cooperative Society Vs. F.X. Fernando, (supra) to
contend that the CCS (CCA) Rules require a strict
compliance. It was further submitted that it is an
admitted fact that the Disciplinary Authority has not
approved the charge sheet.
19. After citing Rule 14 of the CCS (CCA) Rules, the learned
senior counsel has elaborated the various stages when
decisions required to be taken to comply with the said
provision:
a. Whether or not there is justification for
initiation of an enquiry against a Government
Servant? This would also include undertaking the
decision that whether Disciplinary Authority would
itself hold the enquiry or appoint some other
authority to do the same.
b. The second stage is drawing up of chargesheet; and
that has to be done by the Disciplinary Authority.
c. Then the Disciplinary Authority has to apply its
mind on the charges framed under Rule 14(3) and
has to grant its approval.
20. It was further submitted that there may be some
situations where even despite the fact that approval has
been accorded to initiate the enquiry, 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 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 that acceptance of the stand of
the appellant that approval granted to initiation of
proceedings includes approval to the charge-memo would
lead to the position where the charge memo would get
approval even before it has come into existence.
23. Mr. Patwalia further submitted that the issue in the
present case has already been decided by this Court in
Steel Authority of India, Successor of Bokaro Steel Ltd.
Vs. Presiding Officer, Labour Court at Bokaro Steel
City, Dhanbad & Anr.[13] It was also submitted that
since the law laid down in the aforesaid case is in the
favour of the present Respondents, the present appeals
are liable to be dismissed.
24. Mr. Patwalia has also submitted that the appellants, in
the application for condonation of delay in filing of
the present appeals, contended that the ASG recommended
that this is not a fit case for filing the SLP. Thus,
the Civil Appeals are liable to be dismissed on this
ground as well. The learned senior counsel also
submitted that the Appellants have already accepted the
judgment of CAT and the High Court since the Finance
Minister is now approving the charge-sheets. Further, it
was submitted that after receiving information upon a
RTI query, it was disclosed that the Finance Minister
approved the fresh charge sheet in the case of the
Respondent in SLP No. 6348/2001.
Thus, filing of the present appeals is nothing but an
‘academic exercise.’
25. Mr. Patwalia countered the submission of the learned ASG
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. & Ors. Vs. Saroj Kumar Mishra.[14] 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 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
completed before any punishment can be imposed on a
public servant. These steps are :
i) Initiation of Disciplinary proceedings for major
penalties;
ii) drawing up of charges of misconduct;
iii) appointment of Inquiry Officer & Presenting Officer
and to supervise fair conducting of inquiry by the
Inquiry Officer;
iv) imposition of penalty, if any.
All the above procedures have been elaborated in
provisions of Rule 14 of Central Civil Services
(Classification, Control & Appeal) Rules, 1965, which
require an independent & unbiased application of mind and
approval, directly by the Finance Minister and not by any
other subordinate Authority.
28. Learned senior counsel also submitted that the drawing
up charges of misconduct and issuance/service of charge
memo is a crucial function for conducting an inquiry,
which require the independent & unbiased application of
mind and approval, directly and solely by the Finance
Minister and not by any other subordinate Authority.
29. According to the learned senior counsel, the most
important issue to be decided by this Court is that
whether the stage of initiating Disciplinary Proceedings
is the same as issuing a charge sheet/charge memo? A
plain reading of Rule 14(2) and Rule 14(3) of the
Central Civil Services (Classification, Control &
appeal) Rules, 1965 makes it amply clear and the only
interpretation possible is that the stage of initiating
the disciplinary proceedings U/Rule 14(2) is distinct
and separate from issuing a charge memo U/Rule 14(3) and
it is not a continuing act because it is not necessary
that every disciplinary proceeding initiated would
definitely result in issuing a charge memo because after
initiating disciplinary proceedings it may be found
from the material on record that, the memo 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 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[15] and
Director General, ESI & Anr. Vs. T.Abdul Razak.[16]
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 the
Finance Minister is taken only for provision of Rule 14
(2) and no approval is taken for acting under Rule
14(3), then the provision of Rule 14(3) would be
rendered redundant and obsolete. Such a position, he
submits, would mean as if no charges were ever framed by
the Disciplinary Authority.
34. It was further submitted that the charges were framed
only on the basis of the recommendations of CBI, which
is not the recommending authority as per the CCS (CCA)
Rules.
35. Mr. Shekhar Kumar, learned counsel, submitted that the
contention of the learned ASG that no prejudice would be
caused to the Respondent is premised on an incorrect
notion. Learned counsel further submitted that since the
intention of the Government is manifest in the office
order No. 205 of 2005, the said order has to be complied
with strictly, irrespective of the fact whether
prejudice is shown to be caused to the Government
Servant or not.
36. It was also submitted that the charge memo drawn by an
officer other than the specified authority was wholly
without jurisdiction and hence, vitiated the whole
disciplinary enquiry. Reliance was placed on Government
of Andhra Pradesh Vs. M.A. Majeed & Anr.[17] It was also
submitted that where a statutory authority is required
do something in a particular manner, the same must be
done in that manner only. The State and other
authorities, while acting under the statute, are the
creatures of the statue and they must act with in the
four corners of the statute. Learned counsel relied on
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. &
Ors.[18]
37. Lastly, it was submitted that a charge sheet can be
subjected to judicial review on the ground that it has
been issued by an incompetent authority. Ld. Counsel
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 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 interpret this
provision as suggested by the Additional Solicitor
General, that once the disciplinary authority approves
the initiation of the disciplinary proceedings, the
charge sheet can be drawn up by an authority other than
the disciplinary authority. This would destroy the
underlying protection guaranteed under Article 311(1) of
the Constitution of India. Such procedure would also do
violence to the protective provisions contained under
Article 311(2) which ensures that no public servant is
dismissed, removed or suspended without following a fair
procedure in which he/she has been given a reasonable
opportunity to meet the allegations contained in the
charge sheet. Such a charge sheet can only be issued
upon approval by the appointing authority i.e. Finance
Minister.
41. In fact, issuance of the office order No.205
dated 19th July, 2005 makes it evident that the
respondents were aware of the legal position. The office
order clearly sets out the levels of the decision making
authorities depending on the gravity of the consequences
that would have to be faced by a delinquent public
servant in case the decision is taken to proceed against
the public servant. Clause (1) deals with closure of
complaints which are anonymous/pseudonymous; if the
decision is taken to close the complaint it can be taken
by the CVO. But in case of verifiable facts, the
complaints have to be referred to the next level of
hierarchy CVB (Central Vigilance Bureau). For placing an
officer under suspension, the decision has to be taken
by the Finance Minister himself. Even review of
suspension at quarterly/half yearly interval rests with
the Finance Minister. This is so, as suspension during
contemplation/pendency of enquiry, though may not be
penal in nature per se, still has very serious adverse
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 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 commenced
simultaneously. When the decision is taken by the
Finance Minister that the departmental proceedings are
to be held (initiation), only then the question of
approval of charge memo arises. The department would
thereafter complete the necessary formalities and then
place the file before the Finance Minster, for “approval
of” charge memo. This provision is in harmony with the
mandate contained under Articles 311(1) and (2) that no
civil servant shall be dismissed or removed by an
authority subordinating to that by which he was
appointed. The second limb of the same direction is that
punishment on a public servant of dismissal, removal or
reduction in rank can only be imposed when the charges
have been proved against him in a departmental enquiry
held in accordance with the rules of natural justice.
Rule 14 of the CCS (CCA) Rules provides for holding a
departmental enquiry in accordance with the provisions
contained in Article 311(2) of the Constitution of
India. Clause (8) also makes it clear that when the
Finance Minister is approached for approval of charge
memo, approval for taking ancillary action such as
appointing an inquiry officer/presiding officer should
also be taken. Clause (9) in fact reinforces the
provisions in clause (8) to the effect that it is the
Finance Minster, who is required to approve the charge
memo. Clause (9) relates to a stage after the issuance
of charge sheet and when the charge sheeted officer has
submitted the statement of defence. It provides that in
case the charge sheeted officer simply denies the
charges, CVO will appoint an inquiry officer/presiding
officer. In case of denial accompanied by
representation, the Chairman is to consider the written
statement of defence. In case the Chairman comes to a
tentative conclusion that written 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), 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, however expressly
authorized by the authority endowed with the power.”
44. This principle has been given recognition in Sahni Silk
Mills (P) Ltd. (supra), wherein it was held as under:
“6. By now it is almost settled that the legislature can
permit any statutory authority to delegate its power to any
other authority, of course, after the policy has been
indicated in the statute itself within the framework of
which such delegatee (sic) is to exercise the power. The
real problem or the controversy arises when there is a sub-
delegation. It is said that when Parliament has
specifically appointed authority to discharge a function,
it cannot be readily presumed that it had intended that its
delegate should be free to empower another person or body
to act in its place.”
45. Much was sought to be made by Ms. Indira Jaising on
clause (10) of the order which provides that once the
Finance Minister has approved the initiation of
departmental proceedings, the ancillary action can be
initiated by the CVO. According to the learned Addl.
Solicitor General, the decision taken by the Finance
Minister would also include the decision for approval of
charge memo. She pointed out the procedure followed for
initiation of penalty proceedings/disciplinary
proceedings. She submitted that the decision to initiate
disciplinary proceedings is based on a Satisfaction Memo
prepared by the CVO. This satisfaction memo is submitted
to the Member (P&V), Central Board of Direct Taxes, New
Delhi who after being satisfied that the memo is in
order, forwards it to the Chairman, CBDT who in turn,
upon his own satisfaction forwards it to Secretary
(Revenue) and finally to the Finance Minister. Based on
the satisfaction memo, the Finance Minister, who is the
disciplinary 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 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
(Conduct) Rules against the officers mentioned in the
note which included the appellant 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.
46. Ms. Indira Jaising also submitted that the purpose
behind Article 311, Rule 14 and also the Office Order of
2005 is to ensure that only an authority that is not
subordinate to the appointing authority takes
disciplinary action and that rules of natural justice
are complied with. According to the learned Addl.
Solicitor General, the respondent is not claiming that
rules of natural justice have been violated as the
charge memo was not approved by the disciplinary
authority. Therefore, according to the Addl. Solicitor
General, the CAT as well as the High Court erred in
quashing the charge sheet as no prejudice has been
caused to the respondent. In our opinion, the submission
of the learned Addl. Solicitor General is not factually
correct. The primary submission of the respondent was
that the charge sheet not having been issued by the
disciplinary authority is without authority of law and,
therefore, non est in the eye of law. This plea of the
respondent has been accepted by the CAT as also by the
High Court. The action has been taken against the
respondent in Rule 14(3) of the CCS(CCA) Rules which
enjoins the disciplinary authority to draw up or cause
to be drawn up the substance of imputation of misconduct
or misbehaviour 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.
Undoubtedly, this Court in the case of
P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor
General & Ors.[19] 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 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 approved by the disciplinary authority was non est in the eye of law.
50. For the reasons stated above, we see no merit in the
appeals filed by the Union of India.
We may also notice
here that CAT had granted liberty to the appellants to
take appropriate action in accordance with law.
We see
no reasons to disturb the liberty so granted. The
appeals are, therefore, dismissed.
….….…………………..J.
[Surinder Singh Nijjar]
…………………………J.
[M.Y.Eqbal]
New Delhi;
September 05, 2013.
-----------------------
[1] [1949] 2 KB 481
[2] 1991 Supp. (2) SCC 18
[3] 1995 Supp (4) SCC 469
[4] 1993 Supp (3) SCC 627
[5] (1975) 2 SCC 377
[6] AIR 1987 SC 943
[7] (1996) 1 SCC 327
[8] AIR 2000 SC 3603 (2)
[9] AIR 2004 SC 1467
[10] AIR 2007 SC 906
[11] 2012 (11) SCC 565
[12] 1996 (2) SCC 145
[13] 1980 (3) SCC 734
[14] 2007 (9) SCC 625
[15] 1994 (5) SCC 346
[16] (1996) 4 SCC 708
[17] (2006) 1 ALD 823: (2006) 1 ALT 661
[18] (2003) 2 SCC 111
[19] 1993 (1) SCC 419
-----------------------
41
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 7761 OF 2013
(Arising out of SLP (C.) No. 6348 of 2011)
Union of India & Ors. …Appellants
VERSUS
B.V.Gopinath …Respondent
WITH
CIVIL APPEAL NO.7762 OF 2013
(Arising out of SLP (C.) No. 25534 of 2011)
Union of India …Appellant
VERSUS
K.K. Kapila …Respondent
WITH
CIVIL APPEAL NO.7763 OF 2013
(Arising out of SLP (C.) No. 26939 of 2011)
Union of India & Anr. …Appellants
VERSUS
Sudhir Ranjan Senapati …Respondent
WITH
CIVIL APPEAL NO.7764 OF 2013
(Arising out of SLP (C.) No. 28222 of 2011)
Union of India & Ors. …Appellants
VERSUS
S.K. Srivastava …Respondent
WITH
CIVIL APPEAL NO.7765 OF 2013
(Arising out of SLP (C.) No. 25838 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri H.A. Siddiqui …Respondent
WITH
CIVIL APPEAL NO.7766 OF 2013
(Arising out of SLP (C.) No. 25839 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri Varinder Mehta …Respondent
WITH
CIVIL APPEAL NO.7767 OF 2013
(Arising out of SLP (C.) No. 25841 of 2011)
Union of India & Ors. …Appellants
VERSUS
Shri Paul George …Respondent
J U D G M E N T
SURINDER SINGH NIJJAR, J.
1. 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 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 his reply to the allegations wherein
he denied the charges levelled against him. He requested
for supply of certain documents. In due course, the Inquiry
Officer and the Presenting Officer were appointed.
5. During the pendency of the inquiry proceedings, the
respondents filed O.A. No.800 of 2008. In these
proceedings, the respondents claimed that the charge
sheet dated 7th/8th September, 2005 is
without jurisdiction, therefore, liable to be quashed,
as the charge memo had not been approved by the Finance
Minister. We may also notice here that prior to filing
of the aforesaid O.A., the respondent had already
approached CAT twice: firstly, seeking direction(s) to
the Union of India to supply all the documents relied
upon in connection with the charge-sheet issued against
him. Secondly, seeking a direction to the appellant for
timely completion of the departmental proceedings
against him. The directions given by CAT in the
aforesaid proceedings, however, have no bearing on the
controversy involved herein.
6. In the present appeal, we are concerned with the
legality or otherwise of the order passed by CAT on 5th
February, 2009 in O.A. No. 800 of 2008. By the aforesaid
order, CAT quashed the charge sheet dated 7th/8th
September, 2005 issued against the respondent on the
ground that there was nothing on record to show that the
Finance Minister approved the charge sheet. The
aforesaid order of CAT was challenged, by way of Writ
Petition (Civil) No. 10452 of 2009, before the Delhi
High Court. By order dated 28th July 2009, which has
been impugned before this court, the Delhi High Court
dismissed the said writ petition.
Appellants’ Submissions:
7. Ms. Indira Jaising, learned Additional Solicitor General
of India appearing for the appellants, submitted that
the High Court as well as the CAT have committed 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 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, the CVO decides to
initiate disciplinary proceedings, the matter is then
referred to the Chief Vigilance Commission for first
stage advice. The Chief Vigilance Commission examines
the first stage advice. In case the Chief Vigilance
Commission concurs with the decision taken by the Chief
Vigilance Officer, a detailed note is prepared for
initiation of disciplinary proceedings which is put up
to the Finance Minister. She emphasised that alongwith
note for initiation of disciplinary proceedings, all
relevant supporting material is also placed before the
Finance Minister. It is upon consideration of the entire
material alongwith the explanatory note that the Finance
Minister takes a decision to initiate departmental
proceedings. In view of the aforesaid elaborate
procedure, the CAT as well as the High Court had
erroneously concluded that such procedure would not
amount to approval of the charge memo.
10. Ms. Jaising further submitted that Office Order No. 205
of 2005 has been misread by the Courts below. She points
out that to appreciate the true purport of the said
office order, a careful consideration needs to be given
to the safeguards available to a delinquent officer
under the Constitution of India and the CCS (CCA) Rules.
Learned ASG then submitted that Article 311 provides for
two safeguards for the delinquent officer: (i) the
officer cannot be dismissed or removed by the authority
subordinate to the appointing authority of the officer
concerned [Article 311(1)]; and (ii) the dismissal or
removal can only be effected after an enquiry in which
the official has been informed of the charges against
him and is given a reasonable opportunity to be heard in
respect of those charges [Article 311(2)]. She submits
that in the present case, none of the two safeguards
have been violated. She has elaborated that 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
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 proceedings”. According to
the learned ASG, the office order dated 19th July, 2005
does not impose any requirement that the charge memo
must be approved by the disciplinary authority. Clause
(8) of the office order, according to Ms. Indira
Jaising, only provides that the Finance Minister is the
competent authority for granting approval “for issuing
charge memo”, and not for “approving the charge memo”.
She submits that the procedure for drawing up the charge
memo commences when approval is sought for initiation of
the disciplinary proceedings. The actual drawing up of
the charge memo is a part of and incidental to the
approval to initiate disciplinary proceedings and is a
ministerial act. The approval to initiate disciplinary
proceedings is the approval to set the law in motion and
carries with it, by necessary implication, all things to
effectuate the same. Therefore, the grant of approval
for initiation of disciplinary proceedings amounts to
grant of approval for issuance of charge memo.
12. The learned ASG further submitted that the office order
does not create any enforceable rights in favour of the
respondent, since the said order is intended for
internal functioning of the department concerned. The
order, she submits, must be given a purposive
interpretation to discern its true import. It was
submitted by the learned ASG, it would be sufficient
compliance with the said order if it is shown that there
was approval by the disciplinary authority to initiate
disciplinary proceedings and approval is granted to the
material on the basis of which the charge memo has been
drawn. In this context, reliance was placed upon Seaford
Court Estates Ltd Vs. Asher,[1] Municipal Corporation of
Greater Bombay and Others Vs. Indian Oil Corporation
Ltd.,[2] State of Karnataka Vs. Appa Balu Ingale &
Ors.,[3] Forest Range Officer & Ors. Vs. P. Mohammad Ali
& Ors.,[4] State of Madhya Pradesh Vs. M.V.
Narasimhan[5].
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.,[6] Executive Engineer, Bihar State
Housing Board Vs. Ramesh Kumar Singh & Ors.,[7] Ulagappa
& Ors. Vs. Div. Commr., Mysore & Ors.[8] Special
Director & Anr. Vs. Mohd. Ghulam Ghouse & Anr.[9] and
Union of India & Anr. Vs. Kunisetty Satyanarayan[10] and
The Secretary, Min. of Defence and Ors. Vs. Prabhash
Chandra Mirdha [11]
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.[12]
16. Further, it was submitted that it is in the interest of
good administration to interpret said the office order
in the manner as contended by the learned ASG since
there are more than 500 enquiries that have been
initiated in the aforesaid manner.
17. Lastly, it was submitted that the appellants, out of
abundant caution, have now amended the procedure and
seek the approval of the Finance Minister for charge
memo.
Respondents’ Submissions:
18. Mr. P.S. Patwalia, learned senior counsel, submitted
that provisions of CCS (CCA) Rules 1965 are applicable
to the respondent, an officer of Indian Revenue Service.
And that since the charge sheet that was issued to him
contemplated a major penalty, Rule 14 of CCS (CCA) Rules
is attracted. Reliance was placed upon Registrar of
Cooperative Society Vs. F.X. Fernando, (supra) to
contend that the CCS (CCA) Rules require a strict
compliance. It was further submitted that it is an
admitted fact that the Disciplinary Authority has not
approved the charge sheet.
19. After citing Rule 14 of the CCS (CCA) Rules, the learned
senior counsel has elaborated the various stages when
decisions required to be taken to comply with the said
provision:
a. Whether or not there is justification for
initiation of an enquiry against a Government
Servant? This would also include undertaking the
decision that whether Disciplinary Authority would
itself hold the enquiry or appoint some other
authority to do the same.
b. The second stage is drawing up of chargesheet; and
that has to be done by the Disciplinary Authority.
c. Then the Disciplinary Authority has to apply its
mind on the charges framed under Rule 14(3) and
has to grant its approval.
20. It was further submitted that there may be some
situations where even despite the fact that approval has
been accorded to initiate the enquiry, 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 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 that acceptance of the stand of
the appellant that approval granted to initiation of
proceedings includes approval to the charge-memo would
lead to the position where the charge memo would get
approval even before it has come into existence.
23. Mr. Patwalia further submitted that the issue in the
present case has already been decided by this Court in
Steel Authority of India, Successor of Bokaro Steel Ltd.
Vs. Presiding Officer, Labour Court at Bokaro Steel
City, Dhanbad & Anr.[13] It was also submitted that
since the law laid down in the aforesaid case is in the
favour of the present Respondents, the present appeals
are liable to be dismissed.
24. Mr. Patwalia has also submitted that the appellants, in
the application for condonation of delay in filing of
the present appeals, contended that the ASG recommended
that this is not a fit case for filing the SLP. Thus,
the Civil Appeals are liable to be dismissed on this
ground as well. The learned senior counsel also
submitted that the Appellants have already accepted the
judgment of CAT and the High Court since the Finance
Minister is now approving the charge-sheets. Further, it
was submitted that after receiving information upon a
RTI query, it was disclosed that the Finance Minister
approved the fresh charge sheet in the case of the
Respondent in SLP No. 6348/2001.
Thus, filing of the present appeals is nothing but an
‘academic exercise.’
25. Mr. Patwalia countered the submission of the learned ASG
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. & Ors. Vs. Saroj Kumar Mishra.[14] 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 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
completed before any punishment can be imposed on a
public servant. These steps are :
i) Initiation of Disciplinary proceedings for major
penalties;
ii) drawing up of charges of misconduct;
iii) appointment of Inquiry Officer & Presenting Officer
and to supervise fair conducting of inquiry by the
Inquiry Officer;
iv) imposition of penalty, if any.
All the above procedures have been elaborated in
provisions of Rule 14 of Central Civil Services
(Classification, Control & Appeal) Rules, 1965, which
require an independent & unbiased application of mind and
approval, directly by the Finance Minister and not by any
other subordinate Authority.
28. Learned senior counsel also submitted that the drawing
up charges of misconduct and issuance/service of charge
memo is a crucial function for conducting an inquiry,
which require the independent & unbiased application of
mind and approval, directly and solely by the Finance
Minister and not by any other subordinate Authority.
29. According to the learned senior counsel, the most
important issue to be decided by this Court is that
whether the stage of initiating Disciplinary Proceedings
is the same as issuing a charge sheet/charge memo? A
plain reading of Rule 14(2) and Rule 14(3) of the
Central Civil Services (Classification, Control &
appeal) Rules, 1965 makes it amply clear and the only
interpretation possible is that the stage of initiating
the disciplinary proceedings U/Rule 14(2) is distinct
and separate from issuing a charge memo U/Rule 14(3) and
it is not a continuing act because it is not necessary
that every disciplinary proceeding initiated would
definitely result in issuing a charge memo because after
initiating disciplinary proceedings it may be found
from the material on record that, the memo 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 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[15] and
Director General, ESI & Anr. Vs. T.Abdul Razak.[16]
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 the
Finance Minister is taken only for provision of Rule 14
(2) and no approval is taken for acting under Rule
14(3), then the provision of Rule 14(3) would be
rendered redundant and obsolete. Such a position, he
submits, would mean as if no charges were ever framed by
the Disciplinary Authority.
34. It was further submitted that the charges were framed
only on the basis of the recommendations of CBI, which
is not the recommending authority as per the CCS (CCA)
Rules.
35. Mr. Shekhar Kumar, learned counsel, submitted that the
contention of the learned ASG that no prejudice would be
caused to the Respondent is premised on an incorrect
notion. Learned counsel further submitted that since the
intention of the Government is manifest in the office
order No. 205 of 2005, the said order has to be complied
with strictly, irrespective of the fact whether
prejudice is shown to be caused to the Government
Servant or not.
36. It was also submitted that the charge memo drawn by an
officer other than the specified authority was wholly
without jurisdiction and hence, vitiated the whole
disciplinary enquiry. Reliance was placed on Government
of Andhra Pradesh Vs. M.A. Majeed & Anr.[17] It was also
submitted that where a statutory authority is required
do something in a particular manner, the same must be
done in that manner only. The State and other
authorities, while acting under the statute, are the
creatures of the statue and they must act with in the
four corners of the statute. Learned counsel relied on
Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd. &
Ors.[18]
37. Lastly, it was submitted that a charge sheet can be
subjected to judicial review on the ground that it has
been issued by an incompetent authority. Ld. Counsel
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 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 interpret this
provision as suggested by the Additional Solicitor
General, that once the disciplinary authority approves
the initiation of the disciplinary proceedings, the
charge sheet can be drawn up by an authority other than
the disciplinary authority. This would destroy the
underlying protection guaranteed under Article 311(1) of
the Constitution of India. Such procedure would also do
violence to the protective provisions contained under
Article 311(2) which ensures that no public servant is
dismissed, removed or suspended without following a fair
procedure in which he/she has been given a reasonable
opportunity to meet the allegations contained in the
charge sheet. Such a charge sheet can only be issued
upon approval by the appointing authority i.e. Finance
Minister.
41. In fact, issuance of the office order No.205
dated 19th July, 2005 makes it evident that the
respondents were aware of the legal position. The office
order clearly sets out the levels of the decision making
authorities depending on the gravity of the consequences
that would have to be faced by a delinquent public
servant in case the decision is taken to proceed against
the public servant. Clause (1) deals with closure of
complaints which are anonymous/pseudonymous; if the
decision is taken to close the complaint it can be taken
by the CVO. But in case of verifiable facts, the
complaints have to be referred to the next level of
hierarchy CVB (Central Vigilance Bureau). For placing an
officer under suspension, the decision has to be taken
by the Finance Minister himself. Even review of
suspension at quarterly/half yearly interval rests with
the Finance Minister. This is so, as suspension during
contemplation/pendency of enquiry, though may not be
penal in nature per se, still has very serious adverse
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 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 commenced
simultaneously. When the decision is taken by the
Finance Minister that the departmental proceedings are
to be held (initiation), only then the question of
approval of charge memo arises. The department would
thereafter complete the necessary formalities and then
place the file before the Finance Minster, for “approval
of” charge memo. This provision is in harmony with the
mandate contained under Articles 311(1) and (2) that no
civil servant shall be dismissed or removed by an
authority subordinating to that by which he was
appointed. The second limb of the same direction is that
punishment on a public servant of dismissal, removal or
reduction in rank can only be imposed when the charges
have been proved against him in a departmental enquiry
held in accordance with the rules of natural justice.
Rule 14 of the CCS (CCA) Rules provides for holding a
departmental enquiry in accordance with the provisions
contained in Article 311(2) of the Constitution of
India. Clause (8) also makes it clear that when the
Finance Minister is approached for approval of charge
memo, approval for taking ancillary action such as
appointing an inquiry officer/presiding officer should
also be taken. Clause (9) in fact reinforces the
provisions in clause (8) to the effect that it is the
Finance Minster, who is required to approve the charge
memo. Clause (9) relates to a stage after the issuance
of charge sheet and when the charge sheeted officer has
submitted the statement of defence. It provides that in
case the charge sheeted officer simply denies the
charges, CVO will appoint an inquiry officer/presiding
officer. In case of denial accompanied by
representation, the Chairman is to consider the written
statement of defence. In case the Chairman comes to a
tentative conclusion that written 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), 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, however expressly
authorized by the authority endowed with the power.”
44. This principle has been given recognition in Sahni Silk
Mills (P) Ltd. (supra), wherein it was held as under:
“6. By now it is almost settled that the legislature can
permit any statutory authority to delegate its power to any
other authority, of course, after the policy has been
indicated in the statute itself within the framework of
which such delegatee (sic) is to exercise the power. The
real problem or the controversy arises when there is a sub-
delegation. It is said that when Parliament has
specifically appointed authority to discharge a function,
it cannot be readily presumed that it had intended that its
delegate should be free to empower another person or body
to act in its place.”
45. Much was sought to be made by Ms. Indira Jaising on
clause (10) of the order which provides that once the
Finance Minister has approved the initiation of
departmental proceedings, the ancillary action can be
initiated by the CVO. According to the learned Addl.
Solicitor General, the decision taken by the Finance
Minister would also include the decision for approval of
charge memo. She pointed out the procedure followed for
initiation of penalty proceedings/disciplinary
proceedings. She submitted that the decision to initiate
disciplinary proceedings is based on a Satisfaction Memo
prepared by the CVO. This satisfaction memo is submitted
to the Member (P&V), Central Board of Direct Taxes, New
Delhi who after being satisfied that the memo is in
order, forwards it to the Chairman, CBDT who in turn,
upon his own satisfaction forwards it to Secretary
(Revenue) and finally to the Finance Minister. Based on
the satisfaction memo, the Finance Minister, who is the
disciplinary 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 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
(Conduct) Rules against the officers mentioned in the
note which included the appellant 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.
46. Ms. Indira Jaising also submitted that the purpose
behind Article 311, Rule 14 and also the Office Order of
2005 is to ensure that only an authority that is not
subordinate to the appointing authority takes
disciplinary action and that rules of natural justice
are complied with. According to the learned Addl.
Solicitor General, the respondent is not claiming that
rules of natural justice have been violated as the
charge memo was not approved by the disciplinary
authority. Therefore, according to the Addl. Solicitor
General, the CAT as well as the High Court erred in
quashing the charge sheet as no prejudice has been
caused to the respondent. In our opinion, the submission
of the learned Addl. Solicitor General is not factually
correct. The primary submission of the respondent was
that the charge sheet not having been issued by the
disciplinary authority is without authority of law and,
therefore, non est in the eye of law. This plea of the
respondent has been accepted by the CAT as also by the
High Court. The action has been taken against the
respondent in Rule 14(3) of the CCS(CCA) Rules which
enjoins the disciplinary authority to draw up or cause
to be drawn up the substance of imputation of misconduct
or misbehaviour 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.
Undoubtedly, this Court in the case of
P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor
General & Ors.[19] 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 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 approved by the disciplinary authority was non est in the eye of law.
50. For the reasons stated above, we see no merit in the
appeals filed by the Union of India.
We may also notice
here that CAT had granted liberty to the appellants to
take appropriate action in accordance with law.
We see
no reasons to disturb the liberty so granted. The
appeals are, therefore, dismissed.
….….…………………..J.
[Surinder Singh Nijjar]
…………………………J.
[M.Y.Eqbal]
New Delhi;
September 05, 2013.
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[1] [1949] 2 KB 481
[2] 1991 Supp. (2) SCC 18
[3] 1995 Supp (4) SCC 469
[4] 1993 Supp (3) SCC 627
[5] (1975) 2 SCC 377
[6] AIR 1987 SC 943
[7] (1996) 1 SCC 327
[8] AIR 2000 SC 3603 (2)
[9] AIR 2004 SC 1467
[10] AIR 2007 SC 906
[11] 2012 (11) SCC 565
[12] 1996 (2) SCC 145
[13] 1980 (3) SCC 734
[14] 2007 (9) SCC 625
[15] 1994 (5) SCC 346
[16] (1996) 4 SCC 708
[17] (2006) 1 ALD 823: (2006) 1 ALT 661
[18] (2003) 2 SCC 111
[19] 1993 (1) SCC 419
-----------------------
41
