9911796707
TMI Blog2023 (6) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... ority has also approved the Charge Memo under Rule 14 of the Rules of 1965, and had also accorded the appointment of Inquiry Officer / Presenting Officer, if required, in the course of departmental proceedings to be initiated against the petitioner. The decisions of the Finance Minister approving the issuance of memorandum under Rule 14 of the Rules of 1965 were with a clear application of mind. So, in that sense the approvals were in conformity with the judgment of the Supreme Court in CHAIRMAN-CUM-M. D., COAL INDIA LTD. [ 2011 (4) TMI 1216 - SUPREME COURT] . No merit in the petition, the same is dismissed. - W.P.(C) 11485/2021, CM APPLs. 35420/2021 & 46480/2022 - - - Dated:- 29-5-2023 - HON'BLE MR. JUSTICE V. KAMESWAR RAO AND HON'BLE MR. JUSTICE ANOOP KUMAR MENDIRATTA Petitioner: Mr. Navniti Prasad Singh, Sr. Adv. with Mr. Abhishek Singh, Mr. Shreshth Arya, Mr. Madhav Bhatia and Mr. Aditya Pandey, Advs Respondents: Mr. Ravi Prakash, CGSC with Mr.Farman Ali Ms. Astu Khandelwal, Advs. for UOI JUDGMENT V. KAMESWAR RAO, J 1. The challenge in this writ petition is to an order dated July 6, 2021, passed by the Central Administrative Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al did not grant any stay of proceedings, there is no progress in the matter at all. The applicant merrily retired in 2016. Unless he had got big clout in the department, such state of affairs would not have been possible. It must not be forgotten that if a conductor in the State Road Transport Corporation is found to have failed to issue tickets worth Rs. 2 or 5 after collecting fare, he would be dismissed from service and the question of his being reinstated does not arise. Here is a case, where the applicant is said to have accumulated the wealth worth several crores. The department was very cooperative to him and enabled him to retire, notwithstanding the fact that it is a serious case wherein hundreds of documents and hundreds of witnesses are cited. Though a set of officers, at one point of time took the matter seriously and did the needful, the subsequent incumbents seems to have become friendly to the applicant and permitted him to go scot free. 9. The plea of the applicant that there was non application of mind by the disciplinary authority is totally untenable. The respondents have categorically stated that every aspect of the matter was dealt with by the DA, before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgments in support of his submission. 9. On the other hand, Mr. Ravi Prakash, learned CGSC appearing for the Union of India had filed the note sheets of the month of November 2005, which resulted in issuance of the first charge sheet dated December 1, 2006 and also the second charge sheet dated August 28, 2014, before this Court. He submitted that the second charge sheet was issued on the basis of approval of the Competent Authority at two stages; i.e., (i) approval at the time of initiation of disciplinary proceedings and (ii) approval of the charges. 10. According to him, it is clear from the note sheets that the Competent Authority has approved the initiation of major penalty proceedings against the petitioner on December 1, 2005. He also stated that the approval of the draft memorandum under Rule 14 of the Rules of 1965 was in compliance with the judgments of the Supreme Court in B.V. Gopinath and Chairman-cum-Managing Director Coal India Limited and Ors. (supra) . In other words, the decision to initiate major penalty proceedings and the charge memo consisting of the charges, by the Competent Authority, is in compliance with the law laid down in the said judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiating proceedings with respect to the petitioner itself. In any case, the charge sheet which was challenged before the Tribunal is dated August 28, 2014, which has been issued after being approved by the Competent Authority on August 17, 2014, which clearly reveals the application of mind on the part of the Authority. 16. Having said that, insofar as the reliance placed by Mr. Singh on the judgment of the Supreme Court in the case of B.V. Gopinath is concerned, the mandate of the same has been complied with. In B.V. Gopinath, the facts were that, B.V. Gopinath joined the Indian Revenue Service in the year 1987, as Assistant Commissioner of Income Tax. 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. While working on the aforesaid post, on September 7, 2005 / September 8, 2005, a charge sheet was served to him under Rule 14 of the Rules of 1965. The said charge-sheet was issued on the allegation that, in 2003, B.V. Gopinath was alleged to have approached one Chartered Accountant in Chennai for securing his transfer to Mumbai by offering a bribe to the P.A. to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Minister. xxx xxx xxx 44. 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 subordinate 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. 45. Ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge-sheet . These proposed articles of charge would only be finalised upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG 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: (SCC p. 422, para 4) 4. However, it is open to the 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: (SCC p. 422, para 4) 4. 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. (emphasis supplied) 18. From the above, it is clear that the Supreme Court has upheld the orders of the Tribunal and this Court on the ground that the Disciplinary Authority has to approve the initiation of disciplinary proceedings against the officer, approve the charge memo and appoint Inquiry Officer / Presenting Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge-sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record. 31. This Court has repeatedly held that an order of dismissal from service passed against a delinquent employee after holding him guilty of misconduct may be an administrative order, nevertheless proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings. The authority has to give some reason, which may be very brief, for initiation of the enquiry and conclusion thereof. It has to pass a speaking order and cannot be an ipse dixit either of the enquiry officer or the authority. (Vide Bachhittar Singh v. State of Punjab [AIR 1963 SC 395] , Union of India v. H.C. Goel [AIR 1964 SC 364] , Anil Kumar v. Presiding Officer [(1985) 3 SCC 378 : 1985 SCC (L S) 815: AIR 1985 SC 1121] and Union of India v. Prakash Kumar Tandon [(2009) 2 SCC 541: (2009) 1 SCC (L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;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. xxx xxx xxx 12. The next question we shall address is as to whether there would be any difference in the position of law in this case vis- -vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent app ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
