Delhi High Court
Dr. Sahadeva Singh vs Union Of India & Anr. on 13 July, 2016
$~8
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C).3676/2013 & CM.APPL 13000/2015
% Judgment Dated: 13th July, 2016
DR. SAHADEVA SINGH ..... Petitioner
Through : Mr.Suhail Dutt, Senior Advocate with
Mr. Sankalp Goswami, Advocate
versus
UNION OF INDIA & ANR ..... Respondents
Through : Mr. Anil Soni, CGSC with Mr.
Naginder Benipal, Advocate
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE I.S. MEHTA
G.S.SISTANI, J (ORAL)
1. Pleadings in this writ petition are complete.
2. With the consent of the parties, the petition is set down to final hearing
and disposal.
3. Challenge in this writ petition is to the order dated 5 th December, 2012
passed by the Central Administrative Tribunal, (hereinafter referred to
as „the Tribunal‟ in short) in OA No.3366/2011. Necessary facts to be
noticed for disposal of this writ petition as urged by the petitioner are
that on 30thJune, 2008, the department of Agriculture and Cooperation
had issued transfer orders in respect of the petitioner. The petitioner
filed a complaint in the court of Metropolitan Magistrate, Patiala House
Court, against the officials of the department and against an unknown
local goon. The petitioner on receipt of the transfer orders dated 20 th
W.P.(C).3676/2013 Page 1 of 12
October, 2008, reported at National Rainfed Area Authority (hereinafter
referred to „NRAA‟) on the same day.
4. On 15th September, 2009, the Metropolitan Magistrate, Patiala House
Court, issued summons to one Sh. Amit, Assistant in the Department of
Agriculture and Cooperation and also observed that in the absence of
sufficient evidence against the other accused would not require
summoning. The petitioner was required to hand over the keys and
possession of the Room No. 440, Krishi Bhawan which was being
occupied by the petitioner before his transfer to NRAA. Instead of
handing over the keys of the room to the department, he intimated the
department that the keys of the room were not kept by him.
5. On 28th July, 2011, the petitioner was suspended and a Memo of Charge
was issued against him. On 18th August, 2011, an order of compulsory
retirement of the petitioner was issued which was challenged by the
petitioner by filing a separate OA. By an order dated 20 th September,
2011, it was directed that the inquiry would continue upon the order of
compulsory retirement under the provisions of Rule 9 of CCS (Pension
Rules). The petitioner, thereafter filed OA 3366/2011 before the
Tribunal seeking a direction to quash the suspension order dated 28 th
July, 2011 and also to quash the Charge Memo dated 28th July, 2011.
Since the Memo of Charges was not quashed, being aggrieved by the
aforesaid decision has led to the filing of the present writ petition.
6. Mr. Sohail Dutt, learned Senior counsel for the petitioner submits that
the case of the petitioner is fully covered by the decision rendered by
the Apex Court in the case of Union of India & Others v. B.V.
Gopinath, (2014) 1 SCC 351. It is contended that the disciplinary
authority in the case of petitioner is the Agriculture Minister. He
submits that while the initiation of disciplinary proceedings were
W.P.(C).3676/2013 Page 2 of 12
approved by the disciplinary authority, the charge-sheet was not
approved by the disciplinary authority, and thus, the charge-sheet is
liable to be quashed.
7. Mr. Sohail Dutt, learned Senior counsel for the petitioner also pointed
out that during the pendency of the matter before the Tribunal, the
petitioner had made an application under the Right to Information Act
to the respondent seeking copies of the note-sheets by which approval
on the articles of charge was granted by the disciplinary authority.
However, the request was declined on the ground that the matter was
sub-judice. He submits that after the decision was rendered by the
Tribunal, the relevant note-sheets were provided to the petitioner which
would categorically show that while the Agriculture Minister, being the
disciplinary authority, granted approval of initiation of departmental
proceedings, the articles of charge were approved subsequently by
another officer, who was not the disciplinary authority of the petitioner.
A copy of the note received by the petitioner under the Right to
Information Act has been placed on record along with an affidavit. The
original file has been produced before us in the court by the
respondents.
8. Learned counsel for the respondent submits that when the proposal for
initiation of the disciplinary proceedings against the petitioner was
formulized, approved articles of charge were also placed before the
Hon‟ble Minister which is evident upon reading of the original file. He
submits that the approval of the Articles of Charge by the Minister is
tacit and thus, no benefit can accrue to the petitioner based upon the
decision rendered in the case of B.V. Gopinath (supra). Learned
counsel also submits that the note placed before the Minister was a
detailed note and the formal charges which were framed subsequently
W.P.(C).3676/2013 Page 3 of 12
are not different from the draft charges which were in the knowledge of
the Minister.
9. We have heard the learned counsel for the parties. We have also
examined the original file which has been produced before us. No
doubt, the original file reveals that a detail note was prepared before the
matter was placed before the concerned Minister. It is not necessary for
us to detail the entire note but the hand written note, a copy of which
has been placed on record reads as under:-
" From pre page
A.M. may kindly see notes at 1-4/N. Dr. Singh has defied govt.
Orders and stooped so low as to file false criminal cases against
officials of this Ministry including the then Secretary. The Addl.
Sessions Judge has held that he filed the criminal case to take
revenge consequent to his transfer.
Under these circumstances A.M. may like to approve proposal
of placing Dr. Singh under suspension and starting departmental
proceeding against him as proposed in para 13 of page 4/N.
sd/-
13/7/2011
A.M. sd/-
15/7
Secy(A& C)
sd/-
18/7/11
AS(V)
sd/-
18/7/11
JS(A)
W.P.(C).3676/2013 Page 4 of 12
sd/-
18.7.2011
DS(P)
sd/-
18/7/11
US(P-II)
SO/E-II/A
Ill./-"
10. After the Minister had granted his approval, the following note was
prepared:
"Reference: notes on pre-page
Draft memo and order of suspension submitted for approval,
please.
sd/-
18.7.2011
sd/-
18/7
SO (E.II)
US P (II)
Draft order of suspension on the lines proposed on pre-page and as
amended is placed below for approval please.
sd/-
18/7/2011
DS(P)
sd/-
19/7/11
JS (A)
sd/-
20/26.7.2011
W.P.(C).3676/2013 Page 5 of 12
AS (VV)
sd/-
26.7.11
JS(A)
sd/-
27.7.2011
DS (P) on leave
US (P-II) Signed Pl. issue
sd/-
28/7/2011
SO (E-II) sd/-
Sh APS S.No. 1 (I) P. 252-296"
11. Counsels for the parties are in agreement that after the second note, the
file was not sent to the minister. However, it is the case of the
Respondent that when the first note was prepared, draft charge sheet
was also prepared and when the Minister granted his approval, the
approval was for initiating disciplinary proceedings as also the charges
which had been prepared.
12. Since strong reliance has been placed by Mr. Dutt, learned Senior
Counsel, on the judgment of B.V. Gopinath (supra), we deem it
appropriate to notice the facts of the case. The issue which came up for
consideration before the Supreme Court was whether the Charge-sheet
issued against Sh. B.V. Gopinath was without jurisdiction or not. In
view of the fact that the disciplinary authority, which in the said case
was the Finance Ministry, had not given approval for issuing the Charge
Memo despite the fact that it had given the approval for initiation of a
major penalty proceedings against Sh. B.V. Gopinath. The submissions
made by the learned counsel for the respondent are somewhat identical
W.P.(C).3676/2013 Page 6 of 12
to the submissions made before the Supreme Court by the Union of
India. The paragraphs No. 1 and 8 of the judgment reads as under :-
"1. Leave granted in all the SLPs. 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.
...
8. Ms Jaising 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, 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 hierarch."
13. Mr. Dutt, learned Senior counsel for the petitioner, submits that
necessary safeguards have been provided under the Constitution of
India which are to be scrupulously followed. In this regard, reliance has
been placed upon Sh. B.V. Gopinath (supra) and the judgment of this
Court in Vikram Singh v. Union of Indian & Anr., W.P.(C)
6694/2014. More particularly the learned counsel has drawn our
attention to Paragraphs 29, 30, 40, 41, 49 and 50 of B.V. Gopinath
(supra), which read as under:
"29. The 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 and unbiased
application of mind and approval, directly and solely by
the Finance Minister and not by any other subordinate
authority.
30. 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 and Appeal) Rules, 1965 makes it
amply clear and the only interpretation possible is that the
stage of initiating the disciplinary proceedings under Rule
14(2) is distinct and separate from issuing a charge memo
under 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 and Appeal) Rules, 1965.
...
40. 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 restated by this Court in
numerous judgments since the Constitution came into effect
on 19-1-1950 (sic). 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
the CCS (CCA) Rules, 1965.
41. 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.
...
49. We are unable to accept the submission of the learned
Additional 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's 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.
50. In our opinion, the Central Administrative Tribunal as
well as the High Court has correctly interpreted the
provisions of 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 Rules
3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct)
Rules against the officers mentioned in the note which
included the respondent herein. Ultimately, it appears that
the charge memo was not put up for approval by the
Finance Minister. Therefore, it would not be possible to
accept the submission of Ms Indira Jaising that the
approval granted by the Finance Minister for initiation of
departmental proceedings would also amount to approval
of the charge memo."
(Emphasis supplied)
14. While learned counsel for the respondent submits that Para 13 at page 4
of the note, two proposals were placed before the concerned Minister,
firstly to issue Charge-sheet in terms of two Articles of charge and
secondly, to place the petitioner under suspension. It is thus, contended
that the judgment in the case of B.V. Gopinath (supra) would not apply
to the facts of the present case. Per contra, learned Senior Counsel for
the petitioner submits that as per the law laid down by the Supreme
Court and even as per the understanding of the respondent, initiation of
the departmental proceedings and formulizing the Articles of Charge
are two different, distinct and separate stages.
15. We find force in the submission of the learned Senior Counsel for the
petitioner that drawing of charges of misconduct and issuance of charge
sheet is a crucial function for conducting an inquiry, which requires an
independent and unbiased application of mind and approval of the
disciplinary authority; which in this case is the Minister and not a
subordinate authority, who has granted the approval as is evident upon
reading the original note at the second stage as is reproduced above in
Paragraph 9. The relevant line reads as "Draft memo and order of
suspension submitted for approval, please." But the file has not been
sent to the Minister thereafter. Further, in case, the charge had been
approved by the concerned Minister and if this was the understanding
of the respondent department, no fresh approval would have been
sought much less from an authority which was not the disciplinary
authority in this case.
16. B.V. Gopinath (supra) has laid down the principle that there are two
distinct and separate stages of conducting disciplinary inquiry which are
as follows:
Stage I Granting of approval for initiation of disciplinary
proceedings
Stage II Approval of framing of charges.
17. We may also note that the rationale for dividing the disciplinary
proceedings in two distinct and separate stages emanates out of Article
311 of the Constitution. If we presume that once the disciplinary
authority approves the initiation of disciplinary proceedings, the charge-
sheet can be prepared by any other authority. The same would severely
undermine the protections enshrined under Article 311 (1) and 311 (2)
of the Constitution. They ensure that a public servant is not dismissed,
removed or suspended without following a fair procedure and giving
him a reasonable opportunity to meet the allegations against him.
Coming to the dichotomy of Sections 14 (2) and 14 (3) of the Central
Civil Services (Classification, Control and Appeal) Rules, 1965, it is
not necessary that initiation of every disciplinary proceedings will
inevitably result in the issuing of charges. It may be that after initiation
of disciplinary proceedings it may come to light that charges need not
be issued as charges may not be made out or lesser charge may be made
out. Consequently, it would necessitate the application of mind by the
disciplinary authority on the stage of issuance of charge as well. Thus,
approval of the disciplinary authority is required upon both the stages of
Section 14 (2) and Section (3).
18. Since, no approval having been granted at the second stage in the
instant matter, the charge issued is quashed. However, we make it clear
that this order will not come in the way of respondent should they so
desire to initiate fresh proceedings against the petitioner by taking
necessary approval in accordance with law. Original file has been seen
and returned.
19. The writ petition stands disposed of in the above terms.
G.S.SISTANI, J
I.S. MEHTA, J
JULY 13, 2016
j
