Non-est proceedings cannot be validated by ex-post facto approval.

JUDGMENT

V. Kameswar Rao, J. (Oral)

1. The challenge in this writ petition is to an order dated July 28, 2017, passed by the Central Administrative Tribunal Principal Bench, New Delhi (`Tribunal', in short) in Original Application No.2634/2015 whereby the Tribunal has dismissed the OA filed by the petitioner herein.

2. The challenge in the OA by the petitioner was to an order dated August 29, 2014 passed under Rule 9 of CCS (Pension) Rules, 1972 read with Rule 15 of CCS (CCA) Rules, 1965 imposing the penalty of withholding of 30% of monthly pension, otherwise admissible, for a period of 5 years and also in withholding the entire amount of Gratuity permanently, on the petitioner.

3. The brief facts which are necessary for a decision in the writ petition are that while the petitioner was working as Chief Commissioner of Income Tax-II, Hyderabad, the respondents vide letter dated October 7, 2004 had issued Vigilance Inspection note to him and directing him to submit his reply on the irregularities mentioned therein. The petitioner submitted his reply on November 2, 2004.

4. Pursuant thereto, a Charge sheet dated March 31, 2005, was issued to the petitioner wherein two Articles of charge were framed in the following manner:

"Article-I:

That the said Shri P.K. Sinha, while working as Chief Commissioner of Income Tax-II, Hyderabad, Andhra Pradesh, from 24.7.2003 onwards, showed favour to the assessees and caused wrongful loss of revenue to the Government of India, by allowing waiver of interest charged under sections 234A, 234B and 234C of the Income Tax Act, 1961 in the cases of twenty five assessees, in gross violation of the order of the Central Board of Direct Taxes, New Delhi in F.No.400/234/95-IT(B) dated 23.05.1996.

By his above acts, Shri P.K. Sinha failed to maintain absolute integrity and devotion to duty and displayed conduct unbecoming of a Government servant, thereby violating the Rules 3(1)(i), 3 (1) (ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964."

Article-II:

That the said Shri P.K. Sinha, Chief Commissioner of Income Tax-II, Hyderabad, on 5.5.2004 ordered the release of Rs.4.39 crores, out of the amount held under lien by the Income Tax Department, to HEH The Nizam's Jewellery Trust in an irregular manner and in unseemly haste, even before ascertaining the exact quantum of arrears of tax due from the Trust.

Shri P.K. Sinha, thus, failed to maintain absolute devotion to duty and displayed conduct unbecoming of a Government servant, thereby violating Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964."

5. The petitioner submitted his reply to the said Charge-sheet on April 04, 2005. As the respondents were not satisfied with the reply to the said Charge sheet, disciplinary proceedings were initiated against the petitioner. The Inquiry Officer submitted his report. The petitioner was furnished with a copy of the inquiry report along with CVC Advice dated April 01, 2009 and called upon the petitioner's to make representation on the same. The representation was submitted by the petitioner on March 11, 2011. The respondents vide Office Memorandum dated August 19, 2013, again furnished the UPSC Advice dated July 23, 2013, to the petitioner and called for his representation. Pursuant to and on consideration of representations, the aforesaid penalty was imposed on the petitioner, as by that time he had attained the age of superannuation.

6. The case setup by the petitioner before the Tribunal was that the charge memo dated March 31, 2005, was issued without the approval of the Finance Minister, who is the Competent Disciplinary Authority and, hence, all the consequential disciplinary proceedings including the Penalty Order dated August 29, 2014 are vitiated and liable to be quashed in view of the decision of the Supreme Court in Union of India & Ors. v. B.V. Gopinath, (2014) 1 SCC 351.

7. It was also stated that post-facto approval for initiation of the disciplinary pro