SUNNY ABRAHAM versus UNION OF INDIA & ANR. on 17 December 2021

[2021] 9 S.C.R. 892

SUPREME COURT REPORTS

[2021] 9 S.C.R.

ASUNNY ABRAHAM

v.

UNION OF INDIA & ANR.

(Civil Appeal No. 7764 of 2021)

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DECEMBER 17, 2021

[ L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]

Central Civil Services (Classification, Control and Appeal)CRules, 1965 – r.14(2), (3) – Disciplinary proceeding initiated againstthe appellant-Asstt. Commissioner of Income Tax with the approvalof the Disciplinary Authority-the Finance Minister – However,charge memorandum issued to the appellant was not approved bythe Finance Minister – Approved ex-post facto – Appellant wasinformed through an Office Memorandum – Office MemorandumDquashed by CAT, liberty granted to department to issue freshmemorandum of charges u/r.14 – Order set aside by High Court –Held: While construing r.14(2), (3) which is applicable in the presentcase, a Co-ordinate Bench of Supreme Court in the Union of Indiaand Ors. vs. B.V. Gopinath reported as [2013] 14 SCR 185 held thatEcharge memorandum not having approval of the DisciplinaryAuthority would be non-est in the eye of the law – Thus, absence ofthe expression “prior approval” in r.14 would not have any impactso far as the present case is concerned – Further, sub-clauses (2)and (3) of r.14 contemplate independent approval of the DisciplinaryAuthority at both stages- for initiation of enquiry and also forFdrawing up or to cause to be drawn up the charge memorandum –In the event the requirement of sub-clause (2) is complied with, nothaving the approval at the time of issue of charge memorandum u/sub- clause (3) would render the charge memorandum fundamentallydefective, not capable of being validated retrospectively – JudgmentGof High Court set aside while that of CAT is restored with modificationon operational part, as directed – Income Tax Act, 1961 – s.133A –All India Services (Discipline and Appeal) Rules, 1969 – ServiceLaw.

Words & Expressions – “non est” – Meaning of – Discussed.

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Allowing the appeal, the Court

HELD : 1.1 The High Court considered the fact that in thecase of B.V. Gopinath, the proceeding stood concluded whereasin the appellant’s case, it was still running when ex-post factoapproval was given. That was the point on which the ratio of B.V.Gopinath was distinguished by the High Court. The absence ofthe expression “prior approval” in the aforesaid Rule would nothave any impact so far as the present case is concerned as thesame Rule has been construed by this Court in the case of B.V.Gopinath and it has been held that chargesheet/chargememorandum not having approval of the Disciplinary Authoritywould be non est in the eye of the law. [Paras 10, 11][904-C-E]

Union of India and Ors. vs. B.V. Gopinath [(2014) 1SCC 351 : [2013] 14 SCR 185 – relied on.

1.2 Now the question arises as to whether concludedproceeding (as in the case of B.V. Gopinath) and pendingproceeding against the appellant is capable of giving differentinterpretations to the said Rule. The High Court’s reasoning,referring to the notes on which approval for initiation ofproceeding was granted, is that the Disciplinary Authority hadtaken into consideration the specific charges. The ratio of thejudgments in the cases of Ashok Kumar Das and Bajaj HindustanLimited, do not apply in the facts of the present case. Becausethese authorities primarily deal with the question as to whetherthe legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutoryinstrument does not specify taking of prior or previous approval.It is a fact that in the Rules concerned in the present case, thereis no stipulation of taking “prior” approval. But since this veryRule has been construed by a Coordinate Bench to the effectthat the approval of the Disciplinary Authority should be therebefore issuing the charge memorandum, the principles of lawenunciated in the aforesaid two cases, that is Ashok Kumar Dasand Bajaj Hindustan Limited would not aid the respondents. Thedistinction between the prior approval and approval simplicitordoes not have much impact so far as the status of the subjectcharge memorandum is concerned. [Para 11][904-F-H; 905-A-B]

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AAshok Kumar Das and Others vs. University of Burdwanand Others [(2010) 3 SCC 616 : [2010] 3 SCR 429;Bajaj Hindustan Limited vs. State of Uttar Pradesh andOthers [(2016) 12 SCC 613 : 2016 (3 ) SCALE 669 –held inapplicable.

BState of Tamil Nadu vs. Promod Kumar, IPS andAnother [(2018) 17 SCC 677 : 2018 AIR 4060 –relied on.

1.3 The next question is as to whether there would be anydifference in the position of law in this case vis-à-vis the case ofCB.V. Gopinath. In the latter authority, the charge memorandumwithout approval of the Disciplinary Authority was held to be nonest in a concluded proceeding. The High Court has referred tothe variants of the expression non est used in two legal phrasesin the judgment under appeal. The term non est conveys themeaning of something treated to be not in existence because ofDsome legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is howthe Coordinate Bench has construed the impact of not havingapproval of the Disciplinary Authority in issuing the chargememorandum. In the event a legal instrument is deemed to beEnot in existence, because of certain fundamental defect in itsissuance, subsequent approval cannot revive its existence andratify acts done in pursuance of such instrument, treating thesame to be valid. The fact that initiation of proceeding receivedapproval of the Disciplinary Authority could not lighten theobligation on the part of the employer (in this case the Union ofFIndia) in complying with the requirement of sub-clause (3) of Rule14 of CCS (CCA), 1965. Sub-clauses (2) and (3) of Rule 14contemplates independent approval of the Disciplinary Authorityat both stages – for initiation of enquiry and also for drawing upor to cause to be drawn up the charge memorandum. In the eventGthe requirement of sub-clause (2) is complied with, not havingthe approval at the time of issue of charge memorandum undersub- clause (3) would render the charge memorandumfundamentally defective, not capable of being validatedretrospectively. What is non-existent in the eye of the law cannotbe revived retrospectively. The approval for initiating disciplinaryH

Procedure

proceeding and approval to a charge memorandum are twodivisible acts, each one requiring independent application of mindon the part of the Disciplinary Authority. If there is any default inthe process of application of mind independently at the time ofissue of charge memorandum by the Disciplinary Authority, thesame would not get cured by the fact that such approval was thereat the initial stage. [Para 12][905-C-H; 906-A-B]

1.4 The Tribunal in the judgment which was set aside bythe High Court had reserved liberty to issue a fresh memorandumof charges under Rule 14 of CCS (CCA) Rules, 1965 as per Ruleslaid down in the matter, if so advised. Thus, the department’spower to pursue the matter has been reserved and not foreclosed.The judgment of the High Court is set aside and that of thePrincipal Bench of the Central Administrative Tribunal is restoredsubject to certain modification on operational part of it. Theproceeding against the appellant relates to an incident alleged tohave taken place in the year 1998 and the proceeding was initiatedin the year 2002, in the event the department wants to continuewith the matter, and on producing the material the DisciplinaryAuthority is satisfied that a fresh charge memorandum ought tobe issued, such charge memorandum shall be issued not beyonda period of two months, and thereafter the proceeding shall takeits own course. [Paras 14-16][907-E-F, G-H; 908-A]

Case Law Reference

[2013] 14 SCR 185relied onPara 2[2010] 3 SCR 429held inapplicablePara 8

CIVIL APPELLATE JURISDICTION : Civil Appeal No.7764of 2021.

From the Judgment and Order dated 25.08.2017 of the High Courtof Delhi at New Delhi in Writ Petition (Civil) No.7649 of 2015.

Shanker Raju, Aditya Ranjan, Advs. for the Appellant.

Jayant K. Sud. ASG, Arijit Prasad, Sr. Adv., Rupesh Kumar,Niranjana Singh, Ms. Aakansha Kaul, Raj Bahadur Yadav, Advs. for theRespondents.

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AThe Judgment of the Court was delivered byANIRUDDHA BOSE, J.

1. Leave granted.

2. The appellant before us, at the material point of time was anBAssistant Commissioner of Income Tax. The authorities issued amemorandum of charges (charge memorandum) proposing to hold aninquiry against him on 18[th] November, 2002 for major penalty underRule 14 of the Central Civil Services (Classification, Control and Appeal)Rules, 1965. Disciplinary proceeding was initiated against him on 19[th]September, 2002. Allegation against him was that while functioning asCan Income Tax Officer in Surat during the year 1998, he, in collusionwith a Deputy Commissioner of Income Tax, had conducted a surveyunder Section 133A of the Income-Tax Act, 1961 in five proprietarygroup concerns of one Mukeshchandra Dahyabhai Gajiwala and hisfamily and demanded a sum of rupees five lacs other than legalDremuneration from the said individual through his advocate for settlingthe matter. It was further alleged in the articles of charge that he, alongwiththe said Deputy Commissioner, had demanded a sum of rupees two lacsother than legal remuneration from the same individual and later on, theDeputy Commissioner Shri K.K. Dhawan accepted the said amount.Disciplinary proceeding was initiated against the appellant with theEapproval of the Disciplinary Authority-the Finance Minister on 19[th]September, 2002. On 18[th] November, 2002, charge memorandum wasissued to the appellant. This charge memorandum was however notspecifically approved by the Finance Minister. Enquiry officer wasappointed, who submitted his report on 13[th] July, 2007 and the CentralFVigilance Commission (CVC) concurred with the findings of the enquiryofficer and appellant was served with both the reports and advice of theCVC. Till the time of filing of the O.A. No. 1157 of 2014 before thePrincipal Bench of the Central Administrative Tribunal (CAT), theappellant instituted several proceedings, mainly on procedural irregularitiesin CAT as well as the High Court. We, however, do not consider itGnecessary to refer to all of them in this judgment. Earlier, in one decisionof the CAT, Principal Bench delivered on 5[th] February, 2009 in O.A. No.800 of 2008 (B.V. Gopinath vs. Union of India) it was held, whileexamining the same Rule, that in absence of the approval of the chargesby the competent authority, further proceedings in the disciplinary caseHcould not be sustained. This view has been ultimately upheld by this Court in a judgment delivered by a Coordinate Bench in the case ofUnion of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351] on5[th] September, 2013. The ratio of this decision constitutes the sheet anchorof the appellant’s case. We shall deal with that aspect of the appellant’scase later in this judgment.

3. Relying on the B.V. Gopinath (supra) case decided by theCAT, the appellant had approached the same forum with O.A. No. 344of 2012 for quashing the charge memorandum. The Tribunal disposed ofthat application giving liberty to the appellant to raise the point before theDisciplinary Authority. The said order specified that the appellant couldapproach the Tribunal again if adverse order was passed. Representationof the appellant to the Disciplinary Authority on this count does not appearto have had been considered at that point of time, which prompted theappellant to bring another action before the Tribunal. This application ofthe appellant (O.A. No. 1047 of 2012) was disposed of on 30[th] April,2012 with a direction upon the authorities to dispose of the pending enquirywithin three months. The appellant’s request for quashing the chargeswas ultimately turned down on the ground that the petition for SpecialLeave to Appeal was pending before this Court against the order of theCAT in the case of B.V. Gopinath (supra). Another application of theappellant (O.A. No. 2286 of 2012) before the Tribunal was dismissed aswithdrawn giving liberty to the appellant to give detailed representationon reply to the inquiry report and CVC advice, which were directed tobe disposed of by a reasoned and speaking order.

4. The appellant continued to file different applications andrepresentations on the strength of the decision of this Court in the caseof B.V. Gopinath (supra). By an Office Memorandum dated 23[rd]January, 2014, the appellant was informed that the charge memorandumdated 18[th] November, 2002 had been duly approved by the DisciplinaryAuthority and the proceedings could continue from the stage where itstood before the charge memorandum dated 18[th] November, 2002 wasformally approved. This Office Memorandum reads:- “F.No.C-14011/10/99-V&LGovernment of IndiaMinistry of FinanceDepartment of RevenueCentral Board of Direct TaxesNew Delhi-110001

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SUPREME COURT REPORTS

Dated: 23[rd] January, 2014

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OFFICE MEMORANDUM

WHEREAS, disciplinary proceedings under Rule 14 of the CCS(CCA) Rules, 1965 were initiated against Shri Sunny Abraham,ACIT with the approval of the Disciplinary Authority on 10.9.2002and consequently a Memorandum from F.No.C-14011/10/99-V&Ldated 18.11.2002 was issued to him.

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WHEREAS, in view of the judgment dated 5[th] September 2013of the Supreme Court in the case of Union of India Vs. B.V.Gopinath & others (SLOP No.6348 of 2009), the Memorandumfrom F.No.C-14011/10/99-V&L dated 18.11.2002 issued to ShriSunny Abraham, ACIT was placed before the DisciplinaryAuthority, who after examining the facts and circumstances ofthe case, has accorded approval to the same on 8.1.2014.

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AND WHEREAS, the Disciplinary Authority has also approvedcontinuation of disciplinary proceedings from the stage where theproceedings stood before the Charge Memorandum F.No.C-14011/10/99-V&L dated 18.11.2002 was formally approved by theDisciplinary Authority.

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NOW THEREFORE, Shri Sunny Abraham, ACIT is herebyEinformed that he Charge Memorandum F.No.C-14011/10/99-V&Ldated 18.1.2002 has been duly approved by the DisciplinaryAuthority and that the disciplinary proceedings in the matter wouldcontinue from the stage where the proceedings stood before theCharge Memorandum F.No.C-14011/10/99-V&L datedF18.11.2002 was formally approved by the Disciplinary Authority.

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(By order and in the name of the President of India)

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(Dr. Prashant Rhambra)

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Under Secretary to the Government of India”(quoted verbatim from the copy of the judgment as reproduced inthe paperbook)

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5. This Office Memorandum was quashed by the Principal Benchof the CAT on 20[th] April, 2015 in O.A. No. 1157 of 2014 brought by theappellant. View of the Principal Bench of the CAT was that such approvalcould not have been granted ex-post facto. The approval was sought tobe given on 8[th] January, 2014 to a charge memorandum dated 18[th]November, 2002. Liberty was granted to the authorities to issue a freshmemorandum of charges under the aforesaid Rule 14. Union of Indiainvoked the constitutional writ jurisdiction of the Delhi High Courtchallenging the said decision of Principal Bench of the CAT.

6. The applicable Rules of 1965 in this case are sub-clauses (2)and (3) of Rule 14, which had earlier come up for interpretation in thecase of B.V. Gopinath (supra). In the said case, a Coordinate Bench ofthis Court had observed and opined:- “51. Ms. Indira Jaising also submitted that the purpose behindArticle 311, Rule 14 and also the Office Order of 2005 is to ensurethat only an authority that is not subordinate to the appointingauthority takes disciplinary action and that rules of natural justiceare complied with. According to the learned Additional SolicitorGeneral, the respondent is not claiming that the rules of naturaljustice have been violated as the charge memo was not approvedby the disciplinary authority. Therefore, according to the AdditionalSolicitor General, CAT as well as the High Court erred in quashingthe charge-sheet as no prejudice has been caused to therespondent.

52. In our opinion, the submission of the learned Additional SolicitorGeneral is not factually correct. The primary submission of therespondent was that the charge-sheet not having been issued bythe disciplinary authority is without authority of law and, therefore,non est in the eye of the law. This plea of the respondent has beenaccepted by CAT as also by the High Court. The action has beentaken against the respondent in Rule 14(3) of the CCS (CCA)Rules which enjoins the disciplinary authority to draw up or causeto be drawn up the substance of imputation of misconduct ormisbehaviour into definite and distinct articles of charges. Theterm “cause to be drawn up” does not mean that the definite anddistinct articles of charges once drawn up do not have to beapproved by the disciplinary authority. The term “cause to be drawn AB

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up” merely refers to a delegation by the disciplinary authority to asubordinate authority to perform the task of drawing up substanceof proposed “definite and distinct articles of charge-sheet”. Theseproposed articles of charge would only be finalized upon approvalby the disciplinary authority. Undoubtedly, this Court in P.V.Srinivasa Sastry v. CAG [(1993) 1 SCC 419] has held that Article311(1) does not say that even the departmental proceeding mustbe initiated only by the appointing authority. However, at the sametime it is pointed out that: (SCC p. 422, para 4)

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“4. … However, it is open to the Union of India or a StateGovernment to make any rule prescribing that even theproceeding against any delinquent officer shall be initiated byan officer not subordinate to the appointing authority.”

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It is further held that: (SCC p.422, para 4)

“4. …Any such rule shall not be inconsistent with Article 311of the Constitution because it will amount to providing anadditional safeguard or protection to the holders of a civil post.”

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53. Further, it appears that during the pendency of theseproceedings, the appellants have, after 2009, amended theprocedure which provides that the charge memo shall be issuedEonly after the approval is granted by the Finance Minister.

54. Therefore, it appears that the appeals in these matters werefiled and pursued for an authoritative resolution of the legal issuesraised herein.

55. Although number of collateral issues had been raised by thelearned counsel for the appellants as well the respondents, wedeem it appropriate not to opine on the same in view of theconclusion that the charge-sheet/charge memo having not beenapproved by the disciplinary authority was non est in the eye ofthe law.

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56. For the reasons stated above, we see no merit in the appealsfiled by the Union of India. We may also notice here that CAThad granted liberty to the appellants to take appropriate action inaccordance with law. We see no reasons to disturb the liberty sogranted. The appeals are, therefore, dismissed.”

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7. The Delhi High Court in the appellant’s case primarily examinedthe issue as to whether having regard to the aforesaid Rules, a chargesheetor charge memorandum could be given ex-post facto approval or not.The main distinguishing feature between the case of the appellant andthat decided in B.V. Gopinath (supra) is that in the facts of the latterjudgment, the subject charge memorandum did not have the ex-postfacto approval. Stand of the respondents is that there is no bar on givingex-post facto approval by the Disciplinary Authority to a chargememorandum and so far as the present case is concerned, such approvalcures the defect exposed in Gopinath’s case. On behalf of the appellant,the expression “non est” attributed to a charge memorandum lackingapproval of the Disciplinary Authority has been emphasized to repel theargument of the respondent authorities.

8. The respondents’ argument was accepted by the High Courtmainly on two counts. First, there was no ex-post facto approval to thecharge memorandum in Gopinath’s case. Approval implies ratifying anaction and there being no requirement in the concerned Rules for priorapproval, ex-post facto approval could always be obtained. On this point,the cases of Ashok Kumar Das and Others vs. University ofBurdwan and Others [(2010) 3 SCC 616] and Bajaj HindustanLimited vs. State of Uttar Pradesh and Others [(2016) 12 SCC613] are relevant. As regards the charge memorandum being declarednon est, it was held by the High Court:- “26. However, question would arise whether this ratio would beapplicable for as per the respondents as in B.V. Gopinath (supra),the Supreme Court has used the term “non est”. The expressionnon est can be used as non est inventus or non est factum,which means a denial of the execution of an instruction sued upon.Non est inventus is a Latin phrase which means “he is not found”.[See Black’s Dictionary 8[th] Edition at page 1079-1980]. Indeed itcould be argued that the use of the expression would indicate thatthe chargesheet was illegal and void for want of approval.”

(quoted verbatim from the copy of the judgment as reproduced inthe paperbook)

The cases of Ashok Kumar Das (supra) and Bajaj HindustanLimited (supra) were referred to for the proposition that the approvalincludes ratifying an action, which obviously could be given ex-post facto.

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AThe following passage from the case of Bajaj Hindustan Limited(supra) was quoted in the judgment under appeal:-

“7. As is clear from the above, the dictionary meaning of theword “approval” includes ratifying of the action, ratificationobviously can be given ex post facto approval. Another aspectBwhich is highlighted is a difference between approval andpermission by the assessing authority that in the case of approval,the action holds until it is disapproved while in other case untilpermission is obtained. In the instant case, the action was approvedby the assessing authority. The Court also pointed out that if inthose cases where prior approval is required, expression “prior”Chas to be in the particular provision. In the proviso to sub-section(1) of Section 3-A word “prior” is conspicuous. For all thesereasons, it was not a case for levying any penalty upon theappellant. We, therefore, allow this appeal and set aside theimpugned judgment [Bajaj Hindustan Ltd. v. State of U.P., Misc.DSingle No. 3088 of 1999, order dated 30-9-2004 (All)] of the HighCourt as well as the penalty. No order as to costs.”

(quoted verbatim from the copy of the judgment as reproduced inthe paperbook)

9. The following passage from the case of Ashok Kumar DasE(supra) has also been quoted in the judgment under appeal:- “11. In Black’s Law Dictionary (Fifth Edition), the word“approval” has been explained thus:

“Approval. – The act of confirming, ratifying, assenting,Fsanctioning, or consenting to some act or thing done byanother.”

Hence, approval to an act or decision can also be subsequent tothe act or decision.

12. In U.P. Avas Evam Vikas Parishad 1955 Supp. (3) SCCG456, this Court made the distinction between permission, priorapproval and approval. Para 6 of the judgment is quotedhereinbelow:

“6. This Court in Life Insurance Corpn. of India v. EscortsLtd. [(1986) 1 SCC 264], considering the distinction betweenH

“special Permission” and “general permission”, previousapproval” or “prior approval” in para 63 held that:

“63….we are conscious that the word ‘prior’ or ‘previous’may be implied if the contextual situation or the object anddesign of the legislation demands it, we find no suchcompelling circumstances justifying reading any suchimplication into Section 29 (1) of the Act.”

Ordinarily, the difference between approval and permission is thatin the first case the action holds good until it is disapproved, whilein the other case it does not become effective until permission isobtained. But permission subsequently granted may validate theprevious Act, it was stated in Lord Krishna Textiles Mills Ltd. v.Workmen [AIR 1961 SC 860], that the Management need notobtain the previous consent before taking any action. Therequirement that the Management must obtain approval wasdistinguished from the requirement that it must obtain permission,of which mention is made in Section 33 (1).”

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15. The words used in Section 21 (xiii) are not “with the permissionof the State Government” nor “with the prior approval of the StateGovernment”, but “with the approval of the State Government”.If the words used were “with the permission of the StateGovernment”, then without the permission of the State Governmentthe Executive council of the University could not determine theterms and conditions of service of non-teaching staff. Similarly, ifthe words used were “with the prior approval of the StateGovernment”, the Executive Council of the University could notdetermine the terms and conditions of service of the non-teachingstaff without first obtaining the approval of the State Government.But since the words used are “with the approval of the StateGovernment”, the Executive Council of the University coulddetermine the terms and conditions of service of the non-teachingstaff and obtain the approval of the State Government subsequentlyand in case the State Government did not grant approvalsubsequently, any action taken on the basis of the decision of theExecutive council of the University would be invalid and nototherwise.”

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A(quoted verbatim from the copy of the judgment as reproduced inthe paperbook)

10. As it has already been pointed out, the High Court sought todistinguish the case of B.V. Gopinath (supra) with the facts of thepresent case on the ground that in the case of the appellant, theBDisciplinary Authority had not granted approval at any stage and in thepresent case, ex-post facto sanction of the charge memorandum orchargesheet was given when the departmental proceeding was pending.The High Court found such approach to be practical and pragmatic,having regard to the fact that the departmental proceeding had remainedpending in the case of the appellant and evidences had been recorded.CThe High Court thus considered the fact that in the case of B.V. Gopinath(supra), the proceeding stood concluded whereas in the appellant’s case,it was still running when ex-post facto approval was given. That was thepoint on which the ratio of B.V. Gopinath (supra) was distinguished bythe High Court.D

11. We do not think that the absence of the expression “priorapproval” in the aforesaid Rule would have any impact so far as thepresent case is concerned as the same Rule has been construed by thisCourt in the case of B.V. Gopinath (supra) and it has been held thatchargesheet/charge memorandum not having approval of the DisciplinaryEAuthority would be non est in the eye of the law. Same interpretationhas been given to a similar Rule, All India Services (Discipline and Appeal)Rules, 1969 by another Coordinate Bench of this Court in the case ofState of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018)17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now thequestion arises as to whether concluded proceeding (as in the case ofFB.V. Gopinath) and pending proceeding against the appellant is capableof giving different interpretations to the said Rule. The High Court’sreasoning, referring to the notes on which approval for initiation ofproceeding was granted, is that the Disciplinary Authority had taken intoconsideration the specific charges. The ratio of the judgments in theGcases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited(supra), in our opinion, do not apply in the facts of the present case. Wehold so because these authorities primarily deal with the question as towhether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrumentdoes not specify taking of prior or previous approval. It is a fact that inH

the Rules with which we are concerned, there is no stipulation of taking“prior” approval. But since this very Rule has been construed by aCoordinate Bench to the effect that the approval of the DisciplinaryAuthority should be there before issuing the charge memorandum, theprinciples of law enunciated in the aforesaid two cases, that is AshokKumar Das (supra) and Bajaj Hindustan Limited (supra) would notaid the respondents. The distinction between the prior approval andapproval simplicitor does not have much impact so far as the status ofthe subject charge memorandum is concerned.

12. The next question we shall address is as to whether therewould be any difference in the position of law in this case vis-à-vis thecase of B.V. Gopinath (supra). In the latter authority, the chargememorandum without approval of the Disciplinary Authority was held tobe non est in a concluded proceeding. The High Court has referred tothe variants of the expression non est used in two legal phrases in thejudgment under appeal. In the context of our jurisprudence, the term nonest conveys the meaning of something treated to be not in existencebecause of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how theCoordinate Bench has construed the impact of not having approval ofthe Disciplinary Authority in issuing the charge memorandum. In theevent a legal instrument is deemed to be not in existence, because ofcertain fundamental defect in its issuance, subsequent approval cannotrevive its existence and ratify acts done in pursuance of such instrument,treating the same to be valid. The fact that initiation of proceeding receivedapproval of the Disciplinary Authority could not lighten the obligation onthe part of the employer (in this case the Union of India) in complyingwith the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965.We have quoted the two relevant sub-clauses earlier in this judgment.Sub-clauses (2) and (3) of Rule 14 contemplates independent approvalof the Disciplinary Authority at both stages – for initiation of enquiry andalso for drawing up or to cause to be drawn up the charge memorandum.In the event the requirement of sub-clause (2) is complied with, nothaving the approval at the time of issue of charge memorandum undersub-clause (3) would render the charge memorandum fundamentallydefective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Lifecannot be breathed into the stillborn charge memorandum. In our opinion, A

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Athe approval for initiating disciplinary proceeding and approval to a chargememorandum are two divisible acts, each one requiring independentapplication of mind on the part of the Disciplinary Authority. If there isany default in the process of application of mind independently at thetime of issue of charge memorandum by the Disciplinary Authority, thesame would not get cured by the fact that such approval was there atBthe initial stage. This was the argument on behalf of the authorities in thecase of B.V. Gopinath (supra), as would be evident from paragraph 8of the report which we reproduce below:-

“8. Ms Jaising has elaborately explained the entire procedure thatCis followed in each and every case before the matter is put upbefore the Finance Minister for seeking approval for initiation ofthe disciplinary proceedings. According to the learned AdditionalSolicitor General, the procedure followed ensures that entirematerial is placed before the Finance Minister before a decisionis taken to initiate the departmental proceedings. She submits thatDapproval for initiation of the departmental proceedings would alsoamount to approval of the charge memo. According to the learnedAdditional Solicitor General, CAT as well as the High Court hadcommitted a grave error in quashing the departmental proceedingsagainst the respondents, as the procedure for taking approval ofEthe disciplinary authority to initiate penalty proceeding iscomprehensive and involved decision making at every level of thehierarchy.”

13. But this argument was repelled by the Coordinate Bench, aswould be evident from the opinion of the Bench reflected in paragraphsF49 & 50 of the report, which reads:- “49. We are unable to accept the submission of the learnedAdditional Solicitor General. Initially, when the file comes to theFinance Minister, it is only to take a decision in principle as towhether departmental proceedings ought to be initiated againstGthe officer. Clause (11) deals with reference to CVC for secondstage advice. In case of proposal for major penalties, the decisionis to be taken by the Finance Minister. Similarly, under Clause(12) reconsideration of CVC’s second stage advice is to be takenby the Finance Minister. All further proceedings including approvalfor referring the case to DoP&T, issuance of show-cause noticeH

in case of disagreement with the enquiry officer’s report; tentativedecision after CVC’s second stage advice on imposition of penalty;final decision of penalty and revision/review/memorial have to betaken by the Finance Minister.

50. In our opinion, the Central Administrative Tribunal as well asthe High Court has correctly interpreted the provisions of OfficeOrder No. 205 of 2005. Factually also, a perusal of the recordwould show that the file was put up to the Finance Minister by theDirector General of Income Tax (Vigilance) seeking the approvalof the Finance Minister for sanctioning prosecution against oneofficer and for initiation of major penalty proceeding under Rules3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rulesagainst the officers mentioned in the note which included therespondent herein. Ultimately, it appears that the charge memowas not put up for approval by the Finance Minister. Therefore, itwould not be possible to accept the submission of Ms Indira Jaisingthat the approval granted by the Finance Minister for initiation ofdepartmental proceedings would also amount to approval of thecharge memo.”

14. We are conscious of the fact that the allegations against theappellant are serious in nature and ought not to be scuttled on purelytechnical ground. But the Tribunal in the judgment which was set asideby the High Court had reserved liberty to issue a fresh memorandum ofcharges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laiddown in the matter, if so advised. Thus, the department’s power to pursuethe matter has been reserved and not foreclosed.

15. For these reasons we set aside the judgment of the High Courtand restore the judgment of the Principal Bench of the CentralAdministrative Tribunal delivered on 20[th] April, 2015 in O.A. No. 1157of 2014 subject to certain modification on operational part of it, whichwe express in the next paragraph of this judgment.

16. Considering the fact that the proceeding against the appellantrelates to an incident which is alleged to have taken place in the year1998 and the proceeding was initiated in the year 2002, we direct that inthe event the department wants to continue with the matter, and onproducing the material the Disciplinary Authority is satisfied that a fresh A

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Acharge memorandum ought to be issued, such charge memorandum shallbe issued not beyond a period of two months, and thereafter theproceeding shall take its own course.

17. The appeal is allowed in the above terms.

B18. There shall be no orders as to costs.

Divya Pandey

Appeal allowed.

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