TaxTMI 
TaxTMI 
TaxTMI 
2017 (8) TMI 1570
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....d distinct articles of charge once drawn up do not have to be approved by the disciplinary authority. The proposed articles of charge once drawn up must only be finalized by approval of the disciplinary authority. This is notwithstanding that initiation of disciplinary proceedings was after necessary approval of the disciplinary authority in terms of Rule 14(2). We would be subsequently examining the exact ratio and effect of the judgment in B.V. Gopinath (supra). We begin by referring to the relevant facts. 3. Sunny Abraham, respondent in WP(C)No.7649/2015, was appointed as an Income-tax Officer on 30th December, 1980 and had earned promotions to the post of Inspector and Assistant Commissioner in the year 1991 and 2001, respectively. 4. On 19th September, 2002, disciplinary proceedings were initiated against Sunny Abraham with the approval of the disciplinary authority. The disciplinary authority in the present case was the Finance Minister, who while granting approval had examined the detail note with full particulars of the imputations. 5. Thereafter, charge memorandum dated 18th November, 2002 was issued and served on Sunny Abraham. This charge memorandum was not specifical....
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....ronounced the judgment in the case of B.V. Gopinath (Supra) on 5th September, 2013. The appeal filed by the Union of India was dismissed. In view of the decision in the case of B.V. Gopinath (Supra), the matter was placed before the disciplinary authority i.e. the Finance Minster, who then accorded approval to the charge memorandum dated 18th November, 2002 on 8th January, 2014 after examining the facts and circumstances of the case. 13. Sunny Abraham then filed C.P. No.571/2013 in MA.No. 1135/2013 in OA No.2286/2012. By office Memorandum dated 23rd January, 2014 Sunny Abraham was informed that the charge memorandum dated 18 th November, 2002 has been duly approved by the disciplinary authority and the disciplinary proceedings would continue from the stage where the proceedings stood before the charge memorandum dated 18th November, 2002 was formally approved. The contempt proceedings were closed vide order dated 6th March, 2014. 14. Thereupon Sunny Abraham filed OA No.1157/2014 before the Principal bench of the Tribunal which has been allowed by the impugned order dated 20th April, 2015. The Tribunal has quashed the office memorandum dated 23rd January, 2014 observing that the d....
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.... by Pavan Ved relying upon their decision in Sunny Abraham (Supra) and after making reference to B.V. Gopinath (Supra). The Tribunal noticed that the charge memo was dated 13th September, 2002, whereas the ex-post facto approval was granted by the disciplinary authority i.e. the Finance Minister on 26th December, 2013 after more than 11 years from the date of issuance of the charge memo. We shall refer to other facets examined by the tribunal in the impugned order in this case subsequently. LEGAL PROVISIONS 18. The relevant portions of Rule 14(2) and 14(3) of the CCA Rules read as under: "14. PROCEDURE FOR IMPOSING MAJOR PENALTIES: (2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth ....
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....on that approval of the Finance Minister for initiation of the departmental proceedings would include approval of the charge memo, was rejected. At the initiation stage, the Finance Minster only takes a decision in principle as to whether the departmental proceedings ought to be initiated or not. The second stage would be when the charge memo was to put up for approval before the Finance Minster. It was accordingly held as under: "51. Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent. 52. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The pr....
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....n the case of P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors.1993 (1) SCC 419 has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that "However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority." It is further held that "Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post." 53. Further, it appears that during the pendency of these proceedings, the appellants have, after 2009, amended the procedure which provides that the charge memo shall be issued only after the approval is granted by the Finance Minister. 54. Therefore, it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised herein." Paragraph 53 quoted above records that during the pendency of the appeal before the Sup....
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....eld that: "63...we are conscious that the word `prior' or `previous' may be implied if the contextual situation or the object and design of the legislation demands it, we find no such compelling circumstances justifying reading any such implication into Section 29(1) of the Act." Ordinarily, the difference between approval and permission is that in the first case the action holds good until it is disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently granted may validate the previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v. Workmen [AIR 1961 SC 860], that the Management need not obtain the previous consent before taking any action. The requirement that the Management must obtain approval was distinguished from the requirement that it must obtain permission, of which mention is made in Section 33(1)." XXXX 15. The words used in Section 21 (xiii) are not "with the permission of the State Government" nor "with the prior approval of the State Government", but "with the approval of the State Government". If the words used were "with the permission of the State Government", then with....
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....approval and permission by the assessing authority that in the case of approval, the action holds until it is disapproved while in other case until permission is obtained. In the instant case, the action was approved by the assessing authority. The Court also pointed out that if in those cases where prior approval is required, expression "prior" has to be in the particular provision. In the proviso to sub-section (1) of Section 3-A word "prior" is conspicuous. For all these reasons, it was not a case for levying any penalty upon the appellant. We, therefore, allow this appeal and set aside the impugned judgment [Bajaj Hindustan Ltd. v. State of U.P., Misc. Single No. 3088 of 1999, order dated 30-9-2004 (All)] of the High Court as well as the penalty. No order as to costs." 26. However, question would arise whether this ratio would be applicable for as per the respondents as in B.V. Gopinath (supra), the Supreme Court has used the term "non est". The expression non 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....
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....behalf of the counsel for the chargesheeted employee. The submission made on behalf of the Government was that it would not be in the interest of good administration to drop inquiries, which were already going on if the charge sheet issued were required to be approved by the Finance Ministry. Thus, the Government had urged and argued that disciplinary proceeding should not be dropped for want of approval of the Finance Minister, the disciplinary authority. In B.V. Gopinath (supra) reference was also made to the changed stand and the position adopted by the Government, who had amended the procedure with the stipulation that the charge memo shall be issued after approval was granted by the Finance Minister. [See paragraphs 53 and 54 in B.V. Gopinath (supra)]. On the question whether the initial approval for initiation of departmental proceedings was sufficient in the said case, the Supreme Court observed: "50. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a perusal of the record would show that the file was put up to the Finance Minister by the Director General ....
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.... The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/removal shall not be by an authority subordinate to the appointing authority. Accordingly it is held that this was not a permissible ground for quashing the charges by the Tribunal." (See also ESI v. T. Abdul Razak [(1996) 4 SCC 708 : 1996 SCC (L&S) 1061 : AIR 1996 SC 2292] and Coal India Ltd. v. Ananta Saha [(2011) 5 SCC 142 : (2011) 1 SCC (L&S) 750] .)" 30. It is clear from the aforesaid quotation that earlier the view taken was that initiation of disciplinary proceedings can be by an authority subordinate to the appointing authority. This view was also responsible for the belief and foundation that the charge memo could be issued by an authority subordinate to the appointing authority and another approval viz. the formal chargesheet to be issued, was not required. This view has been specifically rejected and not accepted in B.V. Gopinath (supra). The ratio in B.V. Gopinath (supra) has to be applied with full vigour and force in cases where there is violation of Rule 14(3) of the Rules for after the departmental proceedings are over, possibility of ex-post facto approval is unacc....
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.... diretions of superior officers. The charge of any impropriety and of demand of bribe was denied by the officers. 4. However, the CBI report has cited various arguments and evidence to rebut the explanation/defence of the officers. As per record, the Income tax officials at Surat had been advised to abstain from surveys or searches in cases of assessees who had made substantial declarations under the VDIS, 1997. Hence the conduct of survey in this case showed mala fide intention of the officers. The affidavits of Shri Mukeshchandra Dahyabhai Gajiwala and his father Shri Dhayabhai N Gajiwala are available as evidence, alleging harassment and demand of bribe by Shri K K Dhawan from Shri M D Gajiwala, as also complaint lettedr dated 19.3.98 of Shri Mitesh Modi, CA, addressed to CIT, Surat. The allegations made, particularly regarding demand of Rs. 5 lakhs by Shri K. K. Dhawan. through advocate Shri R M Gajjar, and the subsequent payment of Rs. 2 lakhs as bribe to Shri Dhawan at his residence on 5th March, ‟98, are supported by the evidence of Shri Mitesh Modi, CA, his colleague Shri B N Shah Tax Consultant, Shri Suresh S Kadam, accountant of Shri MD Gajiwala, and Shri DN Gaji....
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....s first stage advice. The CVC, vide its OM dated 9.8.2001, has advised the initiation of major penalty proceedings in the case." The approval granted pertinently took into consideration the specific charges." 31. It is in the aforesaid context that we have preferred to accept the position that where departmental proceedings are pending and had been validly initiated, ex post facto sanction of the chargesheet would not violate the ratio of B.V. Gopinath (supra). This would be a practical and pragmatic approach given the fact that the departmental proceedings had remained pending and evidence etc. has been recorded. De novo or fresh proceedings would only delay the matter and would not serve any other purpose. We also do not think that the two respondents would be benefitted by the said recourse. There was a flaw in the absence of approval which has been rectified and corrected. This should not be treated as having caused prejudice. 32. In the case of Coal India Ltd. Vs. Ananta Saha & Ors., (2011) 5 SCC 142, a decision relied upon by Pavan Ved and also referred to by the Tribunal, the Supreme Court had expressly stated and held that when punishment awarded by the disciplinary aut....
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.... initiation. It is this technical flaw or irregularity which has been corrected, and in that context we have referred to the decisions of the Supreme Court accepting the grant of ex post facto approval. 35. There is another aspect raised in the case of Pavan Ved, which relates to the delay in conclusion of the disciplinary proceedings. Inquiry report in favour of Pawan Ved was dated 19th March, 2004. The disciplinary authority did not agree with the report and had issued disagreement note dated 6th June, 2005 to which Pawan Ved had replied, on 20th July, 2005. What happened thereafter and as to why no further progress was made till advice was sought from the Union Public Service Commission vide letter dated 15th January, 2013, is a mystery and has not been ascertained or examined. Why and what was the reason, we do not know. Communication was written to the Union Public Service Commission only when it became apparent that Pavan Ved was to retire in August, 2014. The Union Public Service Commission vide their advice dated 17th June, 2013 suggested that justice would be met by imposing a penalty of compulsory retirement and forfeiture of admissible amount of gratuity. However, OA No....
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....linquency involved. Thus, the court must examine the magnitude of misconduct alleged against the delinquent employee. It is in view of this, that courts/tribunals are not competent to quash the charge-sheet and related disciplinary proceedings, before the same are concluded on the aforementioned grounds. 18. The court/tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is dehors the limits of judicial review. In the event that the court/tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show-cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by the court. The same principle is applicable in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question have to be examined taking into consideration the gravity/magnitude of charges involved therein. The essence of the matter is that the court must take into consideration all relevant facts and to balance and weigh the same, so as to determi....