A charge sheet issued without prior approval of the competent authority is invalid and cannot be ratified by subsequent approval.

ORDER :

ANITA SUMANTH, J.

Prayer : Petition filed under Article 226 of the Constitution of India praying to issue a writ of certiorari calling for the records relating to the order dated 04.11.2017 made in O.A. No.1119 of 2014 on the file of the 3rd Respondent Tribunal.

The respondent / R1 in the Original Application, was one Mr.T.Goraknathan. While working as Commissioner of Income Tax, in the Income tax Department, he had been issued with a charge memorandum on 23.05.06 in terms of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 ('Rules').

2. The charge was to the effect that he had passed appellate orders in favour of seven assessees without proper examination of issues conferring undue benefit to those assessees with malafide intent. He had thus failed to maintain absolute integrity and devotion to duty, acting in a manner that was unbecoming of a Government servant.

3. R1 approached the Central Administrative Tribunal ('Tribunal / CAT') seeking to quash charge sheet dated 28.05.06 but failed as the Tribunal by order dated 20.11.06 directed the Department to conclude the enquiry under the charge memo, expeditiously.

4. Post enquiry, the charges were held to be proved by the enquiry officer, who submitted a report to the Ministry of Finance. The Ministry sought the advice of the Union Public Service Commission (UPSC) in regard to the subject disciplinary proceedings and the suggestion of the UPSC was for the levy of penalty by way of cut of 20% of pension for three years.

5. The recommendation of the UPSC is dated 08.08.2013 and clearly there has been a hiatus of four years prior thereto, when the matter was pending before the UPSC. A formal memorandum was issued thereafter on 20.02.2014 revealing that the disciplinary authority, being the Finance Minister, had accorded formal approval only on 04.02.2012 to charge memo dated 23.05.2006.

6. R1 then raised a preliminary objection assailing approval accorded on 04.02.2014. The objection was two pronged. Firstly, it was contended that the approval could not have been issued in 2012 post facto, relating to a charge sheet issued in May, 2006. The second objection was that R1 had superannuated on 31.05.2006 and in terms of the extant procedure, no charge sheet can be issued beyond the period of four years from date of superannuation.

7. Overriding the objections raised, an order came to be passed by petitioner on 14.03.2014 accepting the recommendation of the UPSC and imposing penalty under Rule 9 of the Central Civil Services (Pension), Rules, 2021 withholding 20% of monthly pension for three years. As against the same, R1 filed OA.No.119 of 2014 before the CAT.

8. Pending the matter before the CAT, R1 had passed away on 11.02.2016. The appeal came to be allowed on the ground that the approval granted by the Ministry of Finance for initiating disciplinary proceedings would amount to a retroactive approval of the charge memo, which was not permissible.

9. While the authority was at liberty to have issued a fresh charge sheet after receipt of the approval, they have proceeded to merely ratify the charge sheet earlier issued. Hence, and since the charge sheet issued originally was sans approval of the competent authority, it was set aside as being without jurisdiction and the original application was allowed. In so concluding, the CAT places reliance upon the judgment in Union of India v B.V.Gopinath [(2014) 1 SCC 351].

10. That was a matter which concerned Departmental proceedings as against various officials of the Income-Tax Department. The legal issue framed was identical to the issue that arises in the present case. In those cases as well, charge sheets had ultimately come to be dropped, as the Authority was of the view that proper procedure, as set out under Office Order No. 205/2005 (‘Office Order’), had not been followed.

11. That Office Order, referred to in the judgment of B.V.Gopinath, specifies the requirement that a charge memo can be issued only with the