2017 (8) TMI 1570 - HC - Indian Laws

Court upholds disciplinary proceedings in writ petitions, permits ex-post facto charge memo approval.

UNION OF INDIA AND ANR Versus SUNNY ABRAHAM AND SHRI PAVAN VED AND ANR

The court allowed the writ petitions, setting aside the orders that quashed disciplinary proceedings against the parties. It held that ex-post facto ... Initiation of disciplinary proceedings - Disciplinary authority to draw or cause to drawn up the substance of imputations of misconduct or misbehavior into definite and distinct article of charges - whether the ex-post facto approval granted by the Finance Minster to validate the charge-sheet was valid, even if the said permission was not taken at the initial stage when the charge- sheet was issued? HELD THAT:- Papers produced before us show that in the present case at the initiating stage a note was prepared in the two cases setting out the exact charges and insinuations and that the CVC had advised initiation of penalty proceedings. The approval was sought from the Finance Minister for initiation of proceedings. At the same time, approval was also sought for appointment of the inquiry officer and the presenting officer in case oral inquiry was considered necessary. However, subsequently, during the pendency of the disciplinary proceedings in the light of the judgment of the Supreme Court in UNION OF INDIA & ORS. VERSUS B.V. GOPINATH, K.K. KAPILA, SUDHIR RANJAN SENAPATI, S.K. SRIVASTAVA, SHRI H.A. SIDDIQUI, SHRI PAUL GEORGE [2013 (9) TMI 1219 - SUPREME COURT], formal approval was sought from the disciplinary authority for the continuation of the disciplinary proceedings from the current stage as well as the charge memo, which had been issued earlier. The said approval was granted. Petition allowed. Issues Involved:1. Validity of disciplinary proceedings initiated without prior approval of the disciplinary authority.2. Impact of Supreme Court's decision in B.V. Gopinath on the disciplinary proceedings.3. Validity of ex-post facto approval for charge memos.4. Delay in conclusion of disciplinary proceedings.Detailed Analysis:1. Validity of Disciplinary Proceedings Initiated Without Prior Approval of the Disciplinary Authority:The primary issue in these writ petitions was whether the disciplinary proceedings initiated against Sunny Abraham and Pavan Ved were valid, given that the charge memoranda were not approved by the disciplinary authority (the Finance Minister) before their issuance. The Supreme Court in B.V. Gopinath held that the disciplinary authority must approve the articles of charge before they are finalized. The court observed that the term 'cause to be drawn up' does not mean that the articles of charge do not need approval by the disciplinary authority. Therefore, the charge memos issued without such approval were considered non est in the eyes of the law.2. Impact of Supreme Court's Decision in B.V. Gopinath on the Disciplinary Proceedings:The court examined the Supreme Court's decision in B.V. Gopinath, which emphasized that the disciplinary authority must approve the charge memo before its issuance. The decision established that the initiation of disciplinary proceedings with the necessary approval is distinct from the approval of the charge memo itself. The court noted that the disciplinary authority's approval for initiating proceedings does not imply approval of the charge memo. This distinction was crucial in determining the validity of the proceedings against Sunny Abraham and Pavan Ved.3. Validity of Ex-Post Facto Approval for Charge Memos:The court analyzed whether ex-post facto approval of the charge memos by the disciplinary authority could validate the previously issued charge memos. The court referred to several judgments, including Ashok Kumar Das and Bajaj Hindustan Limited, which distinguished between 'approval' and 'prior approval.' It was held that approval can be granted subsequently and can ratify previous actions. The court concluded that in cases where departmental proceedings were already initiated with proper approval, ex-post facto approval of the charge memos would not violate the principles established in B.V. Gopinath. This pragmatic approach was deemed necessary to avoid unnecessary delays and complications in the disciplinary process.4. Delay in Conclusion of Disciplinary Proceedings:The court also addressed the issue of delay in the conclusion of disciplinary proceedings, particularly in the case of Pavan Ved. The inquiry report in his favor was dated 19th March 2004, but no further action was taken until advice was sought from the Union Public Service Commission in January 2013. The court emphasized that the disciplinary authority must examine the reasons for the delay and its impact on the proceedings. It was noted that the delay alone does not automatically vitiate the proceedings, and the disciplinary authority should consider all relevant factors before making a decision.Conclusion:The court allowed the writ petitions, setting aside the impugned orders that quashed the disciplinary proceedings against Sunny Abraham and Pavan Ved. The court held that ex-post facto approval of the charge memos was valid, provided the initial disciplinary proceedings were initiated with proper approval. The authorities were directed to proceed with the disciplinary proceedings from the stage they were at before the ex-post facto approval. The court clarified that its judgment should not be construed as an opinion on the merits of the charges and that the respondents could challenge any adverse orders in accordance with the law.