Central Administrative Tribunal - Delhi
S K Jasra vs M/O Defence on 27 September, 2023
1 O.A. No.2406/2021
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.2406 of 2021
Orders reserved on : 11.09.2023
Orders pronounced on : 27.09.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Shri S K Jasra
Age 68 years
S/o Late Shri C L Jasra
Joint Director (Retd)
D-5/1502, Aloha Apartments,
Sector-57, Gurgaon-122002
Group 'A'
...Applicant
(By Advocate: Shri Sachin Chauhan)
VERSUS
1. Union of India
Through Secretary
Ministry of Defence,
South Block, New Delhi-110011
2. Union of India,
Through Secretary,
Ministry of Personnel, Public Grievances & Pensions,
Department of Personnel and Training,
North Block, New Delhi-110001.
3. Joint Secretary & CAO
Ministry of Defence,
E-Block, Dara Sukhoh Road, New Delhi-110011.
2 OA No.2406/2021
4. Director (DCW & Trg),
Office of Joint Secretary & CAO
E - Block, Dara Sukhoh Road, New Delhi-110011.
5. Director (Personnel Civilian)
Dte of Pers Civ/Pension,
Air HQ, J Block,
New Delhi-110011.
...Respondents
(By Advocate: Shri Subhash Gosai)
ORDER
Hon'ble Mr. R.N. Singh, Member (J):
By filing the present OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following reliefs:-
"(A) This Hon'ble Tribunal may be graciously pleased to quash and set aside:-
(i) The non-est Charge Memo No. A/28137/CAO/DD/08 dated 24-03- 2009 and the subsequent disciplinary proceedings conducted based on the said non-est Charge Memo;
(ii) The non-est Order No.A/28137/CASO/DD/08 dated 17- 04-2009 appointing Shri IB Arora, JD, as the Inquiring Authority;
(iii) The non-est Order No.A/28137/CAO/DD/08 dated 20- 07-2009 appointing Shri A.K. Toor, DD as the Presenting Officer;3 OA No.2406/2021
(iv) The impugned Penalty Order dated 16.01.2019 with consequential benefits thereof passed by the Respondents based on the inquiry proceedings conducted pursuant to the illegal Charge Memo No.A/28137/CAO/DD/08 dated 24- 03-2009 as well as the Orders appointing Inquiry Officer/Presenting Officer.
(v) The Presidential Order
No.A/28137/CAO/DD/13 dated 19-
02-2020;
(vi) The PPO Number 406021300173
dated 13-10-2-2020.
(B) After quashing the impugned Penalty
Order dated 16-01-2019, the Respondents ought not to be allowed to initiate disciplinary proceedings against the Applicant on charges which are similar or identical to the one involved in the present OA.
(C) Pass such further or other orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case and in the interest of justice."
2. Pursuant to notice, the respondents have filed their reply opposing the claim of the applicant and the applicant has filed his rejoinder while denying the contents of the counter reply and reiterating the contents of the OA.
3. This is the fourth round of litigation by the applicant, who is a retired employee. Earlier the present applicant 4 OA No.2406/2021 had filed three OAs, namely, OA No.654/2011, 3577/2012 and 852/2017. In the first OA, the applicant had challenged the penalty order dated 21.9.2010, vide which a punishment of reduction of pay by three stages for a period of two years with further order that he would not earn increments during these two years and his future increment would remain postponed, and order dated 11.1.2011 vide which his review petition was rejected and his representations dated 26.7.2010, 6.8.2010 and 10.8.2010 were also disposed of. This Tribunal vide Order/Judgment dated 28.02.2012 allowed the said OA. The relevant paras of the said Order/Judgment dated 28.2.2012 read as under:-
"21. The framing of charge against the applicant seems to have been triggered by the conclusion arrived at by the Complaint's Committee on sexual harassment at work place. The non-application of mind by the competent authority is writ large on the face of the said enquiry ordered. Just because the complainant is a peon working within the unit where the applicant has been working, without going into the nature and tenor of complaint the authority concerned has come to the view that it is a case of sexual harassment of an employee in work place. This type of casual nature in a serious matter of sexual harassment is unpardonable.
22. Having considered the totality of facts and circumstances of the case, and guided by the well settled position in law on the subjects, we are of the considered opinion that the Disciplinary Authority while passing the penalty order has not taken into account various relevant evidences 5 OA No.2406/2021 gathered during the enquiry, more particularly, the possibility of applicant not involved in the alleged misconduct of sexually inappropriate behaviour with two ladies and contradictory evidence emerged in the enquiry besides the motive behind the allegation. Having been guided by the trite law on the subject, we quash and set aside the impugned order of penalty dated 21.09.2010 by which the punishment was inflicted on the applicant and remand back the case to the Disciplinary Authority to re-examine the evidence available in the enquiry and the grounds taken by the applicant during the enquiry, keeping in mind, our observations in the foregoing paragraphs that there are contradictory evidences which go in support of the applicant's claim, and to pass a fresh speaking and reasoned order within a period of three months from the date of receipt of certified copy of this order.
23. Resultantly, in terms of our above orders and directions the OA is allowed. There shall be, however, no order as to costs."
3.1 Aggrieved by the aforesaid Order/Judgment of this Tribunal, the respondents had preferred a Writ Petition (Civil) No.3820/2012, titled Union of India and another vs. S.K. Jasra before the Hon'ble High Court of Delhi, which was disposed of by the Hon'ble High Court vide Order/Judgment dated 25.7.2012, the contents of the said Order/Judgment read as under:-
"CAV 635/2012
The learned counsel for the respondent/ caveator is present.
The caveat stands discharged.
WP(C) 3820/2012 and CM 8006/2012 6 OA No.2406/2021 This writ petition is directed against the order dated 28.02.2012 passed in OA 654/2011 by the Central Administrative Tribunal, Principal Bench, New Delhi.
We find that the Tribunal has merely remanded the matter to the disciplinary authority to re-examine the evidence available in the enquiry and the grounds taken by the respondent during the enquiry. The Tribunal has also directed that the disciplinary authority shall keep in mind the observations made by the Tribunal in the impugned order. The disciplinary authority is also required to pass a fresh speaking order within a period of three months from the date of receipt of the certified copy of the impugned order. We feel that this course of action does not require any interference from us save and except concerning the direction that the observations made by the Tribunal in the impugned order shall not be looked into by the disciplinary authority. In other words, the disciplinary authority will have a relook at the matter and pass a speaking and reasoned order without being influenced by any observations contained in the impugned order.
We make it clear that the disciplinary authority shall take into account all the material available on the record. We also modify the order by extending the time for passing the speaking order by a further period of two months from today.
The writ petition stands disposed of."
3.2 In compliance of the above order/judgment of the Hon'ble Delhi High Court (supra), the respondents had passed the order No.A/28137/CAO/DD/08 dated 28.9.2012 vide which the respondents had inflicted the penalty of reduction in rank from Joint Director (in-situ) to that of Deputy Director upon the applicant. Aggrieved by 7 OA No.2406/2021 the same, the applicant had filed OA No.3577/2012 and this Tribunal vide Order/Judgment dated 19.8.2013, this Tribunal had disposed of the said OA, the relevant paras of the same reads as under:-
"15. In view of the aforementioned, while declining to grant reliefs prayed for by the applicant in the Original Application, we direct respondents to take a view regarding penalty imposed upon the applicant. It is made clear that such view to be taken by them would not be considered as a fresh penalty order. Either of the penalty to be decided by the disciplinary authority and imposed upon the applicant would be effective from the date of speaking order dated 28.9.2012.
16. Subject to aforementioned, the O.A. is disposed of. No costs."
3.3 Aggrieved by the aforesaid Order/Judgment of this Tribunal, the applicant had filed a Writ Petition (Civil) No.7699/2013, titled S.K. Jasra vs. Union of India and others before the Hon'ble High Court of Delhi, which was dismissed by the Hon'ble Delhi High Court vide Order/Judgment dated 28.5.2015. The relevant portion of which reads as under:-
"29. Before we rest the case, we would like to bring to the fore and disparage the conduct of officers who hold high positions and abuse and misuse the power that flows from such authority, with impunity. In the words of the great American President, Abraham Lincoln- "Nearly all men can stand adversity, but if you want to test a man's 8 OA No.2406/2021 character, give him power". In the instant case, the complainant-a widow being distraught sought help for her daughter, who was estranged from her husband. The petitioner on the pretext of offering her a helping hand not only shattered the trust of the person (Director, PP&R) who had reposed faith in him and bestowed him with the task of helping the Complainant, but misused the dominant position that he was holding , courtesy his being a senior officer at the place where the complainant was working. He misbehaved with the daughter and daughter-in-law of the complainant in a sexually inappropriate manner. This abuse of dominant position by the petitioner outrightly reveals the nexus between the improper conduct of the petitioner with his official duties.
30. This is not a case of sexual harassment of a woman at workplace, but it is a clear case of misconduct or of a conduct that was 'unbecoming of a government servant' as stipulated under Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964. People with upright moral values and integrity should only make way into public service and not those, who are beasts in disguise. A public servant should at all times, be it in a professional setup or otherwise conduct himself in a manner that is not subversive to discipline.
31. In view of the above observations, we find no infirmity with the order of the learned tribunal dated 10.09.2013 passed in O.A being No. 3577/2012 and the same is upheld.
32. The present Writ Petition is dismissed with cost of Rs. 50,000/- to be paid by the petitioner to the complainant within a period of four weeks from today. The proof of deposit of cost shall be filed by the petitioner, in compliance of this order, with the Registrar General of this Court and for this purpose only, the matter shall be listed before the Registrar General on 08.09.15 for compliance of this order. It is ordered accordingly."
3.4 Although the applicant had filed SLP against the aforesaid Order/Judgment of the Hon'ble High Court of 9 OA No.2406/2021 Delhi, however, the same was stated to be withdrawn by the applicant. Thereafter, on consideration of the matter after 2nd remand, the disciplinary authority had passed the order dated 28.7.2015 reiterating the punishment of reduction in the rank, which is the punishment imposed after the 1st remand. Aggrieved by the said order dated 28.7.2015, the applicant had filed OA No.852/2017, which was partly allowed by this Tribunal vide Order/Judgment dated 17.9.2018, the relevant portion of which reads as under:-
"8. The charges against the applicant were certainly grave in nature and the evidence on record was beyond any pale of doubt. The punishment of reduction of pay by three stages for a period of two years was imposed. It is lowest of the major punishments. The applicant ought to have realised the gravity of the matter and introspected about the misconduct on his part. Instead, he approached this Tribunal and pleaded so many facts.
9. Obviously, at his instance, the entire inquiry proceedings were analysed as if the Tribunal is his appellate authority. By pointing out the so called lapses, the punishment was set aside and the matter was remanded. It appears that the competent authority took the matter seriously and has availed the occasion to enhance the punishment. In the 2nd round of litigation, the Tribunal expressed the view that the enhancement of the punishment was not warranted and remanded the matter once again. At this stage also, the applicant, exhibited his over enthusiasm and approached the High Court. The Writ Petition invited the displeasure of the Hon'ble Judges. The approach and conduct of the applicant was 10 OA No.2406/2021 commented upon. Ultimately, the order of remand was retained.
10. It needs to be noted that the order of punishment dated 21.09.2010, and the one dated 28.09.2012, passed after remand run into more than 30 closely typed pages. However, the one which is passed after the 2nd remand is in four pages and it reiterated the punishment of the reduction in rank. It is not about the length of the order, but the legality of the whole exercise.
11. The disciplinary authority was of the view that the punishment that is warranted on the proven charges against the applicant is the one of reduction in pay scale by three stages for a period of two years. There are instances where the service rules provide for enhancement of punishment by the reviewing authority, even suo moto, if the circumstances warrant. However, there is no such provision in the instant case, much less, such a power was exercised by any superior authority.
12. An order of remand was passed by this Tribunal, after setting aside the order of punishment of reduction in pay. However, that circumstance did not warrant the imposition of the higher penalty. At the most, same punishment, as imposed originally, could have been retained. Such an approach is prone to be treated as one of punishing the applicant for approaching the Tribunal seeking remedies. In a system governed by rules of law such course of action cannot be permitted.13. We are of the view that even if the O.A No. 654
of 2011 filed by the applicant challenging the order of punishment dated 21.09.2010, were to have been treated as the one without any merits, that order of punishment would have held the field. An enhanced punishment cannot ensue when the matter is remanded after setting aside the original order of punishment.
14. We, therefore, partly allow the O.A, set aside the impugned order dated 27.08.2015 and direct that the punishment as imposed in the order dated 21.09.2010 i.e. the reduction of pay by three stages for a period of two years with further orders that he 11 OA No.2406/2021 will not earn increments during these two years and his future increments will remain postponed, shall become operative."
3.5 Aggrieved by the aforesaid Order/Judgment of this Tribunal, the applicant had filed a Writ Petition (Civil) No.10088/2019, titled S.L. Jasra vs. Union of India and others, which was dismissed by the Hon'ble High Court of Delhi vide Order/Judgment dated 18.9.2019, the relevant portion of the same reads as under:-
"8. This order of the Disciplinary Authority was again challenged by the petitioner by filing O.A. No.852/2017. The Tribunal vide order dated 17.09.2018 was pleased to set-aside the order of penalty dated 27.08.2015 and directed that the punishment as imposed in the first penalty order dated 21.09.2010 shall become operative.
9. Accordingly, by order dated 16.01.2019, in compliance with the directions of the Tribunal, the respondents withdrew the impugned order dated 27.08.2015 and made the first penalty order dated 21.09.2010 operative.
10. The petitioner then filed a review petition under Rule 29A of the CCS (CCA) Rules, 1965 with a prayer that order of penalty be quashed. This review petition has been rejected vide order dated 22.07.2019 and the same has led to filing of the present writ petition.
11. The prayers made in the petition however cannot be accepted for the reason that order dated 28.09.2012 was assailed by the petitioner before the Tribunal and the said order of the Tribunal was upheld by the Division Bench of this court vide order dated 28.05.2015.
12. We accordingly find no infirmity in the view taken by the Tribunal or by the Disciplinary 12 OA No.2406/2021 Authority. No grounds are made out to entertain the petition. Dismissed."
3.6 On 7.9.2019, the applicant received the photocopies of the relevant notings of the File No.A/28137/CAO/DD/08 leading to the issuance of the Charge Memo dated 24.3.2009 and the orders appointing the inquiry officer/Presenting Officer in the subject discipline which were supplied by the respondents vide their letter No.A/28021/SKJ/RTI/CAO/DD/18 dated 13.8.2019 in response to the applicant's RTI Application dated 8.7.2019. Thereafter the applicant has submitted his Review Petition dated 23.9.2019 to the Reviewing Authority seeking quashing of the said chargesheet and the orders dated 17.4.2009 and 20.7.2009. However, the said Review Petition was rejected by the Reviewing Authority vide impugned order dated 19.2.2020. Thereafter on 18.3.2020, the applicant requested the Reviewing Authority to re-examine his aforesaid Review Petition in consultation with DOP&T as, according to the applicant, rejection of the same was absolutely unjustified. On 25.8.2020, the respondents informed the applicant that his Review Petition dated 18.3.2020 is under examination with the office of the JS&CAO. However, 13 OA No.2406/2021 according to the applicant, the said Review Petition has been rejected on 19.1.2021 at the level of JS & CAO without the approval of the Reviewing Authority as well as without consulting DOP&T, which has issued OM No.F.39/1/69-Estt (A) dated 16.04.1969. On 25.9.2020, respondent No.5 directed the applicant to deposit excess payment of pay & allowances and encashment of leave. Various representations submitted by the applicant against the aforesaid recovery of the commuted amount of pension of Rs.1,07,374/- from the pension of the applicant as per penalty order dated 19.1.2019 issued on the basis of the alleged illegal charge memo dated 24.3.2009 were rejected by the respondent no.5 vide impugned order dated 25.2.2021. Hence, the present OA has been filed by the applicant for redressal of his grievances.
4. During the course of hearing, Shri Chauhan, learned counsel for the applicant has argued that the mandatory approval of the charge memo as provided under Rule 14 (3) of the CCS (CCA) Rules, 1965 has not been taken from the disciplinary authority and to substantiate his contention, learned counsel has drew our attention of 14 OA No.2406/2021 impugned order dated 19.2.2020 (Annexure A/5) wherein the respondents have themselves admitted that although approval for initiation of the disciplinary proceedings against the applicant was taken from the competent authority, however, no approval was taken from the competent authority with regard to drawing/delivery of article of charge and imputation of misconduct, as is apparent from the pleadings on record or for appointment of inquiry officer and presenting officer. Learned counsel for the applicant has further argued that since it is an admitted position that charge memo issued to the applicant without obtaining the approval of the competent authority, the same is non-est in the eyes of law. In support of such contention, reliance has been placed on the following decision of the Hon'ble Supreme Court:-
(i) Union of India vs. B.V. Gopinath, reported in (2014) 1 SCC 351; and
(ii) Sunny Abraham vs. Union of India and another, reported in 2021 SCC OnLine 1284.
4.1 Learned counsel for the applicant has further argued that averment made by the respondents in the said order 15 OA No.2406/2021 dated 19.2.2020 that the judgment of the Hon'ble Supreme Court in B.V. Gopinath case (supra) had only the prospective effect and not the retrospective effect, is unsustainable in the eyes of law since the Hon'ble Supreme Court in the said judgment had adjudicated the issue relating to the provisions of Rule 14 (3) of the CCS (CCA) Rules and the said Rules is effective from December 1965.
4.2 Learned counsel for the applicant has also drawn our attention the documents received by the applicant under RTI through his application and submitted that Note page No.25 dated 3.3.2009 and at Note Page No.26 dated 23- 03-2009 (Annexure A-9) reveal that the charge Memo dated 24.3.2009 has been issued with the approval of Joint Secretary (Trg) & CAO only. However, there is no record to show that the draft charge sheet was ever submitted to the disciplinary authority in its conclusive form, i.e., Articles of charge, statement of imputations, list of documents and list of witnesses. Therefore, the said charge memo is non-est in the eyes of law as the mandatory requirement of the provisions of Rule 14 (3) of the CCS (CCA) Rules, 1965, has been violated by the 16 OA No.2406/2021 respondents. The contents of Rule 14 (3) of the said Rule are as under:-
"(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-
(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;
(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-
(a) a statement of all relevant facts including any admission or confession made by the Government servant;
(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained."
4.3 On the strength of the aforesaid Rule position and the law laid down by the Hon'ble Supreme Court in the above mentioned cases, the learned counsel for the applicant has submitted that the charge memo dated 24.3.2009 is ab initio illegal and non-est in the eyes of law and thereby vitiating the whole disciplinary proceedings initiated against the applicant ab initio. 4.4 Learned counsel for the applicant has further submitted that the respondents have not only failed to 17 OA No.2406/2021 obtain the mandatory approval of the Disciplinary Authority about the draft charge but also deprived the Disciplinary Authority from applying its independent mind to the article of charge, state of imputations and documentary and oral evidences to sustain the proposed article of charge to arrive at an independent conclusion whether based on the evidence, the charge sheet is actually warranted or not.
4.5 Learned counsel for the applicant has also drawn our attention to Note page No.29 dated 13.4.2009 (Annexure A-10) vide witch it is revealed that order dated 17.4.2009 appointing Shri I.B. Arora, Joint Director as the Inquiring Authority to inquire into the charges framed against the applicant has been issued with the approval of Joint Secretary (T) and CAO only and there is no record to show that it has been issued with the specific approval of the Disciplinary Authority, i.e., (Hon'ble Raksha Rajya Mantri) as mandated vide sub rule 5 (b) of Rule 14 of the CCS (CCA) Rules, 1965 and thus it is evidently clear that order dated 17.4.2009 regarding appointment of Inquiring Authority has not been approved by the Disciplinary Authority,i.e., (Hon'ble Raksha Rajya Mantri) before its 18 OA No.2406/2021 issuance to the Inquiry Officer. As such the said order dated 17.4.2009 is illegal and non-est in the eyes of law and thereby rendering the whole disciplinary proceedings vitiated ab intio.
4.6 Learned counsel for the applicant has also drawn our attention of Note page No.63 dated 17.7.2009 (Annexure A-11) vide which it is revealed that the order dated 20.7.2009 appointing Shri A.K. Toor, DD, as Presenting Officer under sub rule 5 (c) of Rule 14 of the CCS (CCA) Rules, 1965 has been issued with the approval of Joint Secretary (T) & CAO. However, there is no record to show that it has been issued with the specific approval of the disciplinary authority, i.e., (Hon'ble Raksha Rajya Mantri) and thus it is evidently clear that order dated 20.4.2009 regarding appointment of Presenting Officer has not been approved by the Disciplinary Authority, i.e., (Hon'ble Raksha Rajya Mantri) before its issuance. As such the said order dated 20.4.2009 is illegal and non-est in the eyes of law and thereby rendering the whole disciplinary proceedings vitiated ab intio.
4.7 Learned counsel for the applicant has also submitted that impugned order dated 25.2.2021 vide which the 19 OA No.2406/2021 respondents have rejected the representations of the applicant against the recovery of an amount of Rs.1,07,347/- from his pension and the said amount has been deducted from the pension of the applicant based on the said Charge Memo dated 24.3.2009, which is ab initio illegal and non-est in the eyes of law.
4.8 Lastly, learned counsel for the applicant has submitted that the applicant being a pensioner, aged of 69 years old, who superannuated on 30.6.2013 and keeping in view the long drawn litigations faced by the applicant as evident from the above, the respondents should not be given any further opportunity to initiate disciplinary proceedings afresh against the applicant while disposing of the present OA to put an end to the prolonged litigations.
5. Shri Gosai, learned counsel for the respondents with the assistance of the counter reply has submitted that a comprehensive note containing all details of the case was submitted for approval of the Disciplinary Authority for initiation of disciplinary proceedings against the applicant under Rule 14 of the CCS (CCA) Rules, 1965 for violation of Rule 3(1)(iii) of CCS Conduct Rules, 1964 and the said 20 OA No.2406/2021 proposal was duly approved by the then Hon'ble Raksha Rajya Mantri as is evident form Annexure R/3 and as such it cannot be said that the chargesheet/Charge Memorandum was issued to the applicant without the due approval of the Disciplinary Authority. So far as the decision of the Hon'ble Supreme Court in the case of B.V. Gopinath (supra) is concerned, the learned counsel for the respondents has not disputed that it was mandated that the charge memo has to be approved by the Disciplinary Authority and blanket approval of initiating the disciplinary proceedings would not suffice. However, he has submitted that in terms of doctrine of "prospective overruling" the law declared by the Hon'ble Supreme Court applied to the cases arising in future only and its applicability to the cases which have attained finality is saved because the repeal would otherwise work on those who had trusted to its existence and as such the law laid down by the Hon'ble Supreme Court in the case of B.V. Gopinath (supra) had only the prospective effect and not the retrospective effect and hence the charge memo dated 24.3.2009 cannot be declared as non-est in the eyes of law. Likewise in the case of appointments of Inquiring Authority and Presenting Officer, the rule position on the 21 OA No.2406/2021 subject had been established by the Govt. of India, MHA Memo No.F.39/1/69/-Ests(A) dated 16 April 1969 which delineates that in the cases where the Disciplinary Authority is President then under the Transaction of Business Rules, the initiation of the disciplinary proceedings should be approved by the Minister and once the Minister has approved initiation of disciplinary proceedings, there is no need to show the file to the Minister while drawing the article of charge and imputation of misconduct or misbehavior of the Government servant. Learned counsel for the respondents has also submitted that in terms of Ministry of Home Affairs notification of Authentication (Orders and other Instrument) Rules, 2002, issued on 16.2.2002 (Annexure R/1), an order made and executed in the name of the President shall be authenticated by the signatures of JS & CAO/Director/Dy. CAO and therefore, the charge memo and other orders were signed by a lower functionary with the annotation 'By order and in the name of the President'. 5.1 Gosai, learned counsel for the respondents has further submitted that prior to the judgment of the Hon'ble Supreme Court in the case of B.V. Gopinath 22 OA No.2406/2021 (supra), the rule position on the subject had been established by the Govt. of India, MHA Memo No. F 39/1/69/-Ests(A) dated 16.4.1969, which delineates that in the cases where the Disciplinary Authority is President then under the Transaction of Business Rules, the initiation of the disciplinary proceedings should be approved by the Minister. The said Memo further clarified that once the Minister has approved initiation of disciplinary proceedings, there is no need to show the file to the Minister while drawing of article of charge and imputation of misconduct or misbehavior to the Government servant and from perusal of Annexure R/3, it is evidently clear that approval of the Disciplinary Authority for initiation of the disciplinary proceedings against the applicant as per the requirement of the Rules on the subject. However, Shri Gosai, learned counsel for the respondents has not disputed the fact that after the decision of the Hon'ble Supreme Court in the case of B.V. Gopinath (supra), an ambiguity on this aspect was cleared and it was mandated that the charge memo has to be approved by the Disciplinary Authority and blanket approval of initiating the disciplinary proceedings would not suffice, but the said law has applicability to the cases 23 OA No.2406/2021 arising in future only as the same had only the prospective effect and not the retroactive effect.
5.2. Lastly Shri Goasi, learned counsel for the respondents has submitted that the applicant has continuously and habitually resorted to abuse of process of law by filing a case after another as he has filed four OAs, including the instant one, and two Writ Petitions before this Tribunal and the Hon'ble High Court of Delhi respectively, as evident from the facts of the case for agitating the same cause, which tantamount to abuse of process of law as re-agitation of issues which have attained finality goes against the long standings and established principle of "Interest Republicae ut sit finis Litium", i.e., it is in interest of state that there must be an end to litigation. Learned counsel for the respondents has further submitted that the issue(s) raised by the applicant in the present OA ought to have been raised by him in previous round of litigations, which culminated in Hon'ble High Court Order dated 18.9.2019 and it is trite that the issue(s) raised in the present OA ought to have been raised in previous rounds of litigation, as these facts could have come in knowledge of a cautions litigant by reasonable 24 OA No.2406/2021 diligence. In support of the above contention, learned counsel for the respondents has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, M.P. Gwalior and others, reported in 1987 AIR 88. He has argued that the present OA is barred by the principle of res judicata and the principle of estoppel.
6. We have heard the learned counsels for the parties and perused the pleadings on record as well as judgments relied upon by them.
7. Keeping in view the facts of the case as well as arguments advanced by the learned counsels of the parties, precisely as noted above, for proper adjudication of the present case, the following issues emerge to be addressed:-
(i) Whether the law laid down by the Hon'ble Supreme Court in the case of B.V. Gopinath (supra) as well as in the case of Sunny Abraham (supra) is to be treated to be of prospective nature in the facts of the present case?25 OA No.2406/2021
(ii) Whether the present OA is maintainable before this Tribunal as the applicant had already filed three OAs and two Writ Petitions to agitate his grievances arising out of the same disciplinary proceedings and orders(s) arising out therefrom?
(iii) Whether on being an admitted fact that the charge memo as well as appointments of Inquiring Authority and Presenting Officer, have not been issued specifically with the approval of the Disciplinary Authority, the impugned charge memo and further proceedings and order(s) against the applicant are vitiated ab initio?
8. So far as issue at para 7 (i) is concerned, the respondents have themselves admitted that the ambiguity was cleared by the Hon'ble Supreme Court in the case of B.V. Gopinath (supra), the relevant paras of the same reads as under:-
"44. Under Clause (9), the department firstly puts up the file before the Finance Minister seeking "approval for issuing charge memo/sanction of prosecution". The department is seeking an order as to whether the officer is to be proceeded against departmentally or criminal proceedings are to be initiated or both proceedings are to be commenced simultaneously. When the decision is taken by the Finance Minister that the departmental proceedings are to be held (initiation), only then the question of 26 OA No.2406/2021 approval of charge memo arises. The department would thereafter complete the necessary formalities and then place the file before the Finance Minster, for "approval of" charge memo. This provision is in harmony with the mandate contained under Articles 311(1) and (2) that no civil servant shall be dismissed or removed by an authority subordinate to that by which he was appointed. The second limb of the same direction is that punishment on a public servant of dismissal, removal or reduction in rank can only be imposed when the charges have been proved against him in a departmental enquiry held in accordance with the rules of natural justice.
45. Rule 14 of the CCS (CCA) Rules provides for holding a departmental enquiry in accordance with the provisions contained in Article 311(2) of the Constitution of India. Clause (8) also makes it clear that when the Finance Minister is approached for approval of charge memo, approval for taking ancillary action such as appointing an inquiry officer/presiding officer should also be taken. Clause (9) in fact reinforces the provisions in Clause (8) to the effect that it is the Finance Minster, who is required to approve the charge memo. Clause (9) relates to a stage after the issuance of charge-sheet and when the charge-sheeted officer has submitted the statement of defence. It provides that in case the charge-sheeted officer simply denies the charges, CVO will appoint an inquiry officer/presiding officer.
In case of denial accompanied by representation, the Chairman is to consider the written statement of defence. In case the Chairman comes to a tentative conclusion that written statement of defence has pointed out certain issues which may require modification/amendment of charges then the file has to be put up to the Finance Minister. So the intention is clearly manifest that all decisions with regard to the approval of charge memo, dropping of the charge memo, modification/amendment of charges have to be taken by the Finance Minister.
46. Accepting the submission of Ms Indira Jaising would run counter to the well-known maxim delegatus non potest delegare (or delegari). The principle is summed up in Judicial Review of Administrative Action by De Smith, Woolf and Jowell (5th Edn.) as follows:
27 OA No.2406/2021
"The rule against delegation A discretionary power must, in general, be exercised only by the authority to which it has been committed. It is a well-known principle of law that when a power has been confided to a person in circumstances indicating that trust is being placed in his individual judgment and discretion, he must exercise that power personally unless he has been expressly empowered to delegate it to another."
The same principle has been described in Administrative Law, by H.W.R. Wade & C.F. Forsyth (9th Edn.), Chapter 10, as follows:
"Inalienable discretionary power An element which is essential to the lawful exercise of power is that it should be exercised by the authority upon whom it is conferred, and by no one else. The principle is strictly applied, even where it causes administrative inconvenience, except in cases where it may reasonably be inferred that the power was intended to be delegable. Normally the courts are rigorous in requiring the power to be exercised by the precise person or body stated in the statute, and in condemning as ultra vires action taken by agents, sub-committees or delegates, however expressly authorised by the authority endowed with the power."
47. This principle has been given recognition in Sahni Silk Mills (P) Ltd. [(1994) 5 SCC 346 : 1994 SCC (L&S) 1096] wherein it was held as under: (SCC p. 350, para 6) "6. By now it is almost settled that the legislature can permit any statutory authority to delegate its power to any other authority, of course, after the policy has been indicated in the statute itself within the framework of which such delegatee (sic) is to exercise the power. The real problem or the controversy arises when there is a subdelegation. It is said that when Parliament has specifically appointed authority to discharge a function, it cannot be readily presumed that it had 28 OA No.2406/2021 intended that its delegate should be free to empower another person or body to act in its place."
48. Much was sought to be made by Ms Indira Jaising on Clause (10) of the order which provides that once the Finance Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by CVO. According to the learned Additional Solicitor General, the decision taken by the Finance Minister would also include the decision for approval of charge memo. She pointed out the procedure followed for initiation of penalty proceedings/disciplinary proceedings. She submitted that the decision to initiate disciplinary proceedings is based on a satisfaction memo prepared by CVO. This satisfaction memo is submitted to the Member (P&V), Central Board of Direct Taxes, New Delhi who after being satisfied that the memo is in order, forwards it to the Chairman, CBDT who in turn, upon his own satisfaction forwards it to Secretary (Revenue) and finally to the Finance Minister. Based on the satisfaction memo, the Finance Minister, who is the disciplinary authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo.
49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on 29 OA No.2406/2021 imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.
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 of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo."
9. In the case of Sunny Abraham (supra), the Hon'ble Supreme Court dealt with the case in which the appellate was issued a Memorandum of Charges proposing to hold an inquiry against him on 18.11.2002 for major penalty under Rule 14 of the Rules ibid and the Hon'ble Supreme Court after elaborately discussing the Rule position and law on the subject held as under:-
"11. As it has already been pointed out, the High Court sought to distinguish the case of B.V. Gopinath (supra) with the facts of the present case on the ground that in the case of the appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was 30 OA No.2406/2021 pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the appellant and evidences had been recorded. The 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 the point on which the ratio of B.V. Gopinath (supra) was distinguished by the High Court.
12. 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 v. Promod Kumar, IPS [(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 Limited (supra), in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking "prior" approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that 31 OA No.2406/2021 is Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra) would not aid the respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.
13. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with 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 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 32 OA No.2406/2021 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 the report which we reproduce below:--
"8. Ms. Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy."
14. But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:--
"49. We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All 33 OA No.2406/2021 further proceedings including approval for referring the case to DoP&T, issuance of show- cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.
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 of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms. Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo."
15. We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the department's power to pursue the matter has been reserved and not foreclosed.
16. For these reasons we set aside the judgment of the High Court and restore the judgment of the Principal Bench of the Central Administrative Tribunal delivered on 20th April, 2015 in O.A. No. 1157 of 2014 subject to certain modification on operational part of it, which we express in the next paragraph of this judgment."
34 OA No.2406/2021
10. From the aforesaid judgments of the Hon'ble Supreme Court in the cases of B.V. Gopinath (supra) and Sunny Abraham (supra), it is apparent that the Hon'ble Apex Court has laid down that approval of the draft charges and appointment of the I.O. and P.O. by the competent disciplinary authority is mandatory in view of the Rule position and absence of such approval shall lead the charge memo to be non-est in the eyes of law. By these judgments, the existing Rule has been interpreted. Moreover, in the case in hand, the disciplinary proceedings and order(s) arising out of same, have been under challenge in the aforesaid court proceedings and after such proceedings, the final order has been challenged by the applicant by way of a statutory review petition. The law of estoppel will not be applicable against the provisions of statue. In this regard, we place reliance on the judgment of the Hon'ble Apex Court in the case of Ashok Leyland Ltd. vs. State of T.N. and another, reported in (2004) 3 SCC 1. In para 118 of which the Hon'ble Apex Court has ruled as under:-
"118. The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without 35 OA No.2406/2021 jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res judicata...."
Further, we are supported by the judgment of the Hon'ble Apex Court in the case of Shakuntla Devi vs. Kamla and others, reported in (2005) 5 SCC 390. In paras 19 & 20 thereof, the Hon'ble Apex Court has ruled as under:-
"19. In Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh [(2005) 3 SCC 232 : 2005 SCC (L&S) 387 :
(2005) 2 Scale 151] discussing the principles of res judicata and considering the earlier judgment of this Court, this Court held thus : (SCC pp. 239-40, paras 26-29) "26. It is true that the appellant did not challenge the judgment of the learned Single Judge.
The learned Judge in support of his judgment relied upon an earlier decision of the High Court in Rajesh Garg v. Punjab State Tubewell Corpn. Ltd. [(1984) 3 SLR 397 (P&H)] but failed to consider the question having regard to the pronouncements of this Court including H.R. Adyanthaya [H.R. Adyanthaya v. Sandoz (India) Ltd., (1994) 5 SCC 737 : 1994 SCC (L&S) 1283] . Rajesh Garg [(1984) 3 SLR 397 (P&H)] was rendered following S.K. Verma [S.K. Verma v. Mahesh Chandra, (1983) 4 SCC 214 : 1983 SCC (L&S) 510] which being not a good law could not have been the basis therefor.
27. The principle of res judicata belongs to the domain of procedure. When the decision relates to the jurisdiction of a court to try an earlier proceeding, the principle of res judicata would not come into play. (See Mathura Prasad Bajoo Jaiswal [(1970) 1 SCC 613] .)
28. An identical question came up for consideration before this Court in Ashok Leyland 36 OA No.2406/2021 Ltd. v. State of T.N. [(2004) 3 SCC 1] wherein it was observed : (SCC p. 44, para 118) '118. The principle of res judicata is a procedural provision. A jurisdictional question, if wrongly decided, would not attract the principle of res judicata. When an order is passed without jurisdiction, the same becomes a nullity. When an order is a nullity, it cannot be supported by invoking the procedural principles like estoppel, waiver or res judicata.'
29. It would, therefore, not be correct to contend that the decision of the learned Single Judge attained finality and, thus, the principle of res judicata shall be attracted in the instant case." 20 *. From the above principles laid down by this Court, it is clear that if the earlier declaratory decree which is sought to be made the basis of res judicata is delivered by a court without jurisdiction or is contrary to the existing law at the time the issue comes up for reconsideration such earlier declaratory decree cannot be held to be res judicata in a subsequent case unless, of course, protected by any special enactment." We further place reliance on the judgment of the Division Bench of the Hon'ble High Court of Delhi in the case of All India Institute of Medical Sciences vs. S.P. Vashisht, reported in 2023 SCC OnLine Del 3168., para 24 of which reads as under:-
"24. In the light of settled position of law, in the instant case, in the absence of the approval of charge memo by the competent Disciplinary Authority i.e. the President, AIIMS, who is empowered to impose the penalties under clauses
(v) to (ix) of Rule 11 of CCS (CCA) Rules, the very foundation of issuing the charge-sheet becomes fundamentally defective and is not capable of being validated by merely placing the file before the 37 OA No.2406/2021 Disciplinary Authority (i.e. the President, AIIMS) at the final stage. As the initial action itself is not in accordance with law, the subsequent inquiry proceedings and the decision taken thereupon would fall to the ground."
In this background, we hold that the law laid down by the Hon'ble Apex Court in B.V. Gopinath (supra) and Sunny Abraham (supra) cannot be said to be of prospective in nature in the facts of the present case. Thus the issue as at para 7 (i) is answered accordingly.
11. So far as issue at para 7 (ii) is concerned, it is evident that the fact that the charge memo dated 24.3.2009 had not been issued with the approval of the competent Disciplinary Authority has come to the notice of the applicant only when he had got information/documents from the respondents through RTI Application dated 8.7.2019 on 13.8.2019 and thereafter the applicant had submitted his Review Petition to the Reviewing Authority on 23.9.2019, which was rejected on 19.2.2020 and thereafter on 18.3.2020, the applicant requested the reviewing authority to re-examine his review petition dated 23.9.2019 and the respondents informed the applicant on 25.8.2020 that his review petition dated 18.3.2020 was under examination which was ultimately rejected on 38 OA No.2406/2021 19.1.2021 at the level of Joint Secretary & CAO without the approval of the Reviewing Authority as well as without consulting DOP&T. As such coupled with our answer to the issue at para 7 (i) as given in the preceding para, this issue deserves to be answered in favour of the applicant. The same is accordingly answered.
12. So far as issue as at para 7 (iii) above is concerned, from the pleadings of the parties, it is admitted fact that charge memo as well as appointments of Inquiring Authority and Presenting Officer have been issued without the approval of the Disciplinary Authority and Rule 14(3) of the Rules, as quoted above, clearly provides that it is the Disciplinary Authority, which is competent to issue the Charge Memo and well as other directions with regard to the disciplinary proceedings, if it is to be initiated against an employee(s). As such once it is admitted fact that Charge Memo has not been issued with the approval of the competent authority, the same is non-est in the eyes of law and the proceedings and orders issued by the respondents resulting from the said charge memo had vitiated the disciplinary proceedings ab initio. This issue 39 OA No.2406/2021 deserves to be answered in favour of the applicant. The same is answered accordingly.
13. So far the judgment of the Hon'ble Apex Court in the case of Sarguja Transport Service (supra), referred to and relied upon by the learned counsel for the respondents is concerned, the point for consideration before the Hon'ble Apex Court and decision thereon is as follows:-
"9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that article. On this point the decision in Daryao case [AIR 1961 SC 1457 :
(1962) 1 SCR 574] is of no assistance. But we are of the view that the principle underlying Rule 1 of Order XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh 40 OA No.2406/2021 writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental right guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We, however leave this question open."
However, in the case in hand, the applicant had challenged the final order which was passed by the respondents on his review petition, which he had filed in view of the discovery of the fact that charge memo, arising out of which the order(s) were passed by the respondents, was not approved by the competent authority in view of the reply given by the respondents to his RTI application as noted above. Therefore, we are of the considered view that the decision of the Hon'ble Supreme Court in the case of Sarguja Transport Service (supra) is not applicable in the facts of the present case and hence, distinguishable.
14. In view of the aforesaid facts, discussion, Rule and law, the OA is allowed with the following directions:-
(i) The impugned charge Memo dated 24.3.2009 and the impugned orders are set aside;41 OA No.2406/2021
(ii) The applicant shall be entitled to all consequential benefits in accordance with the relevant rules and instructions;
(iii) The respondents shall comply with the aforesaid directions by passing the necessary order(s) as expeditiously as possible and in any case within eight weeks of receipt of a copy of this Order;
(iv) However, the respondents shall remain at liberty to proceed against the applicant afresh, if they so decide, of course, in accordance with the relevant rules on the subject;
15. In the facts and circumstances, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N. Singh)
Member (A) Member (J)
/ravi/