The Division Bench of Supreme Court consisting of Justices L. Nageswara Rao and Aniruddha Bose opined that what is non-existent in the eye of the law cannot be revived retrospectively, that life cannot be breathed into the stillborn charge memorandum.
Facts
The appellant at the material point of time was an Assistant Commissioner of Income Tax. The authorities issued a memorandum of charges (charge memorandum) proposing to hold an inquiry against him for major penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Disciplinary proceeding was initiated against him. Allegation against him was that while functioning as an Income Tax Officer in Surat during the year 1998, he, in collusion with a Deputy Commissioner of Income Tax, had conducted a survey u/s 133A of the Income-Tax Act, 1961 in five proprietary group concerns of one Mukeshchandra Dahyabhai Gajiwala and his family and demanded a sum of rupees five lacs other than legal remuneration from the said individual through his advocate for settling the matter. It was further alleged in the articles of charge that he, along with the said Deputy Commissioner, had demanded a sum of rupees two lacs other than legal remuneration from the same individual and later, the Deputy Commissioner Shri K.K. Dhawan accepted the said amount.
Procedural History
Disciplinary proceeding was initiated against the appellant with the approval of the Disciplinary Authority-the finance minister and charge memorandum was issued to the appellant. This charge memorandum was however not specifically approved by the finance minister. Enquiry officer was appointed, who submitted his report and the Central Vigilance Commission (CVC) concurred with the findings of the enquiry officer and appellant was served with both the reports and advice of the CVC. Till the time of filing of suit before the Principal Bench of the Central Administrative Tribunal (CAT), the appellant instituted several proceedings, mainly on procedural irregularities in CAT as well as the High Court.
Relying on Union of India & Ors vs B.V. Gopinath decided by the CAT, the appellant had approached the same forum for quashing the charge memorandum. The Tribunal disposed of that application giving liberty to the appellant to raise the point before the Disciplinary Authority. The said order specified that the appellant could approach the Tribunal again if adverse order was passed. Representation of the appellant to the Disciplinary Authority did not appear to have had been considered at that point of time, which prompted the appellant to bring another action before the Tribunal. This application of the appellant was disposed of with a direction upon the authorities to dispose of the pending enquiry within three months. The appellant’s request for quashing the charges was ultimately turned down on the ground that the petition for Special Leave to Appeal was pending before this Court against the order of the CAT in the case of B.V. Gopinath (supra). Another application of the appellant before the Tribunal was dismissed as withdrawn giving liberty to the appellant to give detailed representation on reply to the inquiry report and CVC advice, which were directed to be disposed of by a reasoned and speaking order. The appellant continued to file different applications and representations on the strength of the decision of this Court in the case of B.V. Gopinath (supra). By an Office Memorandum, the appellant was informed that the charge memorandum had been duly approved by the Disciplinary Authority and the proceedings could continue from the stage where it stood before the charge memorandum was formally approved.
This Office Memorandum was quashed by the Principal Bench of the CAT. Liberty was granted to the authorities to issue a fresh memorandum of charges under the aforesaid Rule 14. Union of India invoked the constitutional writ jurisdiction of High Court challenging the said decision of Principal Bench of the CAT. The High Court in the appellant’s case primarily examined the issue as to whether having regard to the aforesaid Rules, a chargesheet or charge memorandum could be given ex-post facto approval or not.
Contentions made
Stand of the respondents is that there is no bar on giving ex-post facto approval 9 by the Disciplinary Authority to a charge memorandum and so far as the present case is concerned, such approval cures the defect exposed in Gopinath’s case. On behalf of the appellant, the expression “non est” attributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasized to repel the argument of the respondent authorities.
Observations of the Court
The Bench observed that:
“In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary aauthority. If there is any Default in the process of application of mind independently at the time of issue of charge memorandum by the disciplinary Authority; the same would not get cured by the fact that such approval was there at the initial stage. We are conscious application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured bu the fact that such approval was there at the inital stage. We are conscious of the fact that the allegations against teh appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 144 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the department's power to pursue the matter has been reserved and not foreclosed.
Judgment
The Bench set aside the judgment of the High Court and restored the judgment of the Principal Bench of the Central Administrative Tribunal. In the event the department wanted to continue with the matter, and on producing the material the Disciplinary Authority was satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.
Case Name: Sunny Abraham vs Union of India & Anr.
Citation: Civil Appeal No. 7764 of 2021
Decided on: 17th December 2021
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