TaxTMI 
TaxTMI 
TaxTMI 
2021 (12) TMI 1443
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....jiwala and his family and demanded a sum of rupees five lacs other than legal remuneration from the said individual through his advocate for settling the matter. It was further alleged in the articles of charge that he, alongwith the said Deputy Commissioner, had demanded a sum of rupees two lacs other than legal remuneration from the same individual and later on, the Deputy Commissioner Shri K.K. Dhawan accepted the said amount. Disciplinary proceeding was initiated against the appellant with the approval of the Disciplinary Authority-the Finance Minister on 19th September, 2002. On 18th November, 2002, charge memorandum was issued to the appellant. This charge memorandum was however not specifically approved by the Finance Minister. Enquiry officer was appointed, who submitted his report on 13th July, 2007 and the Central Vigilance Commission (CVC) concurred with the findings of the enquiry officer and appellant was served with both the reports and advice of the CVC. Till the time of filing of the O.A. No. 1157 of 2014 before the Principal Bench of the Central Administrative Tribunal (CAT), the appellant instituted several proceedings, mainly on procedural irregularities in CAT a....
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.... dated 18th November, 2002 had been duly approved by the Disciplinary Authority and the proceedings could continue from the stage where it stood before the charge memorandum dated 18th November, 2002 was formally approved. This Office Memorandum reads:- "F.No.C-14011/10/99-V&L Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi-110001 Dated: 23rd January, 2014 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 10.9.2002 and consequently a Memorandum from F.No.C-14011/10/99-V&L dated 18.11.2002 was issued to him. WHEREAS, in view of the judgment dated 5th September 2013 of the Supreme Court in the case of Union of India Vs. B.V. Gopinath & others (SLOP No.6348 of 2009), the Memorandum from F.No.C-14011/10/99-V&L dated 18.11.2002 issued to Shri Sunny Abraham, ACIT was placed before the Disciplinary Authority, who after examining the facts and circumstances of the case, has accorded approval to the same on 8.1.2014. AND WHEREAS, the Disciplinary Authority has also approved continua....
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....nal Solicitor General is not factually correct. The primary submission of the respondent was that the charge-sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of the law. This plea of the respondent has been accepted by CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up" merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge-sheet". These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in P.V. Srinivasa Sastry v. CAG [(1993) 1 SCC 419] has held that Article 311(1) does not....
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....tributed to a charge memorandum lacking approval of the Disciplinary Authority has been emphasized to repel the argument of the respondent authorities. 8. The respondents' argument was accepted by the High Court mainly on two counts. First, there was no ex-post facto approval to the charge memorandum in Gopinath's case. Approval implies ratifying an action and there being no requirement in the concerned Rules for prior approval, ex-post facto approval could always be obtained. On this point, the cases of Ashok Kumar Das and Others vs. University of Burdwan and Others [(2010) 3 SCC 616] and Bajaj Hindustan Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC 613] are relevant. As regards the charge memorandum being declared non est, it was held by the High Court:- "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 8th Edi....
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...."special Permission" and "general permission", previous approval" 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 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)." XXX &....
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....distinguished by the High Court. 11. We do not think that the absence of the expression "prior approval" in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath (supra) and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law. Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in the case of State of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018) 17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now the question arises as to whether concluded proceeding (as in the case of B.V. Gopinath) and pending proceeding against the appellant is capable of giving different interpretations to the said Rule. The High Court's reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the Disciplinary Authority had taken into consideration the specific charges. The ratio of the judgments in the cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limi....
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....s (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages - for initiation of enquiry and also 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, not having the approval at the time of issue of charge memorandum under sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of th....