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SUPREME COURT OF INDIA
(From the High Court of Delhi at New Delhi)
L. NAGESWARA RAO, ANIRUDDHA BOSE, JJ.
Sunny Abraham - Appellant
Versus
Union of India & Anr. - Respondents
Civil Appeal No.7764 of 2021 [Arising out of Special Leave Petition (C) No.30001 of 2017]
Decided On : 17-12-2021
(A) Central Civil Services (Classification, Control and Appeal) Rules, 1965 – Rule 14 – Disciplinary proceeding – Allegation of demanding money other than legal remuneration for settling the matter – Charge-sheet/charge memorandum not having approval of Disciplinary Authority would be non est in eye of law – Distinction between prior approval and approval simplicitor does not have much impact so far as status of subject charge memorandum is concerned – Fact that initiation of proceeding received approval of Disciplinary Authority could not lighten obligation on part of employer (in this case Union of India) in complying with requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965 – What is non-existent in eye of law cannot be revived retrospectively – Life cannot be breathed into stillborn charge memorandum – Approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on part of Disciplinary Authority – If there is any default in process of application of mind independently at the time of issue of charge memorandum by Disciplinary Authority, same would not get cured by fact that such approval was there at initial stage – Allegations against appellant are serious in nature and ought not to be scuttled on purely technical ground – But Tribunal in judgment which was set aside by High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter – Thus, department’s power to pursue the matter has been reserved and not foreclosed – Judgment of High Court set aside and judgment of Principal Bench of Central Administrative Tribunal restored. (Paras 11, 12, 14 and 15)
(B) Words and Phrases – Non est – In context of our jurisprudence, term non est conveys meaning of something treated to be not in existence because of some legal lacuna in process of creation of subject-instrument – It goes beyond a remediable irregularity – In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. (Para 12)
Facts of the case:
Appellant was an Assistant Commissioner of Income Tax. The authorities issued a memorandum of charges (charge memorandum) proposing to hold inquiry against him on 18th November, 2002 for major penalty under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. Disciplinary proceeding was initiated against him on 19th September, 2002. Allegation against him was that while functioning as an Income Tax Officer in Surat during year 1998, he, in collusion with a Deputy Commissioner of Income Tax, had conducted a survey under Section 133A of the Income-Tax Act, 1961 in five proprietary group concerns and demanded a sum of rupees five lacs other than legal remuneration from concerned individual through his Advocate for settling the matter.
Findings of Court:
Considering the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, we direct that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is 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.
Result : Appeal allowed.
JUDGMENT :
Aniruddha Bose, J.
Leave granted.
2. The appellant before us, 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 on 18th November, 2002 for major penalty under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Disciplinary proceeding was initiated against him on 19th September, 2002. 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 under Section 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, alongwith the said Deputy Commissioner, had demanded a sum of rupees two lacs other than legal remuneration from the same individual and later on, the Deputy Commissioner Shri K.K. Dhawan accepted the said amount. Disciplinary proceeding was initiated against the appellant with the approval of the Disciplinary Authority-the Finance Minister on 19th September, 2002. On 18th November, 2002, 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 on 13th July, 2007 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 the O.A. No. 1157 of 2014 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. We, however, do not consider it necessary to refer to all of them in this judgment. Earlier, in one decision of the CAT, Principal Bench delivered on 5th February, 2009 in O.A. No. 800 of 2008 (B.V. Gopinath vs. Union of India) it was held, while examining the same Rule, that in absence of the approval of the charges by the competent authority, further proceedings in the disciplinary case could not be sustained. This view has been ultimately upheld by this Court in a judgment delivered by a Coordinate Bench in the case of Union of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351] on 5th September, 2013. The ratio of this decision constitutes the sheet anchor of the appellant’s case. We shall deal with that aspect of the appellant’s case later in this judgment.
3. Relying on the B.V. Gopinath (supra) case decided by the CAT, the appellant had approached the same forum with O.A. No. 344 of 2012 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 on this count does 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 (O.A. No. 1047 of 2012) was disposed of on 30th April, 2012 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 (O.A. No. 2286 of 2012) before the Tribunal was dismissed as withdrawn giving liberty to the appellant to give detailed representation on reply to the inqui
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