Central Administrative Tribunal - Delhi
Shri B.V. Gopinath vs Union Of India Through The Revenue ... on 5 February, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.800/2008 Thursday, this the 5th day of February 2009 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shri B.V. Gopinath Aged about 46 years S/o Shri B. Venkateswarlu, R/o B-3/67, IInd Floor Safdarjung Enclave New Delhi-29 ..Applicant (By Advocate: Shri S.K. Gupta) Versus 1. Union of India through the Revenue Secretary Ministry of Finance, North Block, New Delhi 2. The Chairman Central Board of Direct Taxes Ministry of Finance, North Block New Delhi 3. The Director General (Vigilance & CVO) 1st Floor, Dyal Singh Public Library Building DD Upadhaya Marg, New Delhi ..Respondents (By Advocate: Shri H.K. Gangwani) O R D E R (ORAL)
Shri Shanker Raju:
As ruled by the Apex Court in Union of India & another v. Kunisetty Satyanarayana, (2007) 2 SCC (L&S) 304 that the charge sheet in a judicial review could be interfered with at an interlocutory stage if issued without jurisdiction or contrary to law.
2. With the above backdrop of trite law, applicant, who has a history of litigation before the Tribunal, by virtue of this OA, has impugned a major penalty memorandum issued on 7/8.9.2005 under Rule 14 of CCS (CCA) Rules, 1965 (hereafter referred to Rules 1965). The allegations levelled against the applicant are that while working as Additional Commissioner of Income Tax, Range-IX in the year 2003, he has failed to maintain integrity and exhibited conduct becoming of a government servant, as he approached one practicing Chartered Accountant in Chennai pertaining to his transfer from Chennai to Mumbai and in turn an approach and contact was made to 1st P.A. to Shri G.N. Ramachandran, the then Minister of State for Finance (Revenue), Govt. of India and on a demand of certain money, he agreed to pay the bribe for ensuring his transfer . The inquiry was challenged by one Govind Manish before the Tribunal in O-264/2006. By an order dated 21.3.2007, the said case was decided by the Tribunal held that the document pertaining to the transfer proforma file, including the transfer proforma of Govind Manish along with officers considered for transfer have not been supplied and finding no misconduct and the charge sheet is contrary in law, same was set aside by the Tribunal.
3. It is stated by learned counsel for respondents at Bar under instructions that the writ petition has been filed against the said order and a stay of operation has been granted.
4. However, applicant being aggrieved with non-supply of the documents, i.e., proforma transfer and list of officers had approached the Tribunal on several occasions and lastly in OA-773/2007. An order passed in said OA on 28.5.2007 directed the respondents to finalize the disciplinary proceedings. However, MA for extension, being MA-2030/2007, was filed before the Tribunal. Taking cognizance of the fact that the documents sought for by the applicant are still to be served upon him, the inquiry was directed to be completed as a final opportunity within six weeks from 6.2.2008 upto 21.3.2008 with a further direction on liberty that the inquiry can be proceeded with or without the document or may be discontinued with resumption as per the wisdom of the authorities.
5. Learned counsel for applicant, Shri S.K. Gupta, challenges the proceedings on several legal infirmities; first on the ground that the charge sheet lacks jurisdiction. While resorting to Rule 14 (3) of Rules 1965, it is stated that before a charge sheet is issued, apart from a sanction for initiating a major penalty proceeding, the disciplinary authority, who is Finance Minister in this case, a condition precedent for issue of the charge sheet is approval, which when not taken, the further proceedings in the inquiry are vitiated.
6. Learned counsel on the basis of information received through RTI would rely upon a note moved by Director of Vigilance and CVO on 8.6.2005 where an approval of Finance Minister was sought, which was granted later on. It is stated that what has been approved is only a prosecution evidence under PC Act and for initiation of major penalty proceedings, including appointment of inquiry and presenting officers, which is not a valid compliance of approval of charge sheet, i.e., memo issued for major penalty under Rule 14 of the Rules 1965.
7. To strengthen this plea, learned counsel for applicant would rely upon a decision of coordinate Bench of this Tribunal in Sri S.K. Srivastava v. Union of India & others (OA-1434/2008) decided on 18.12.2008 where non-approval of the charge sheet and in the wake of approval of only initiation of the proceedings and appointment of inquiry and presenting officers, the charge memo was found to be lacking jurisdiction. Following observations have been made, which are quoted hereinbelow:
4. We have gone through the official records produced before us so as to know as to whether any approval for issuance of the charge memo dated 03.04.2006 was accorded by the competent authority and find that even though the competent authority approved initiation of proceedings against the applicant and appointment of Inquiry Officer and Presenting Officer, vide order dated 03.03.2006, but the charge memo was not approved by the concerned authority. The applicant has also sought to summon the file of Ms. Harshwardhini Booty, in whose case, as per the records, the competent authority i.e. the Minister (Finance) had approved the memo of charge. For the patent illegality committed in the matter of the applicant, this Tribunal has no choice but to quash the charge memo dated 03.04.2006 with liberty to the respondents to proceed against the applicant and frame charges if the concerned competent authority may approve the charge memo. Ordered accordingly.
8. Learned counsel would rely upon Rule 14 (5) (a) of the Rules 1965 to contend that an appointment of inquiry officer under Rules 1965 would not be possible unless a charge memo of approval is issued and in response, a statement is filed. It is only thereafter on consideration of the written statement the inquiry officer is to be appointed. By referring to the RTI information whereby approval of appointment of inquiry officer is made, it is stated that this is without complying with Rule 14 (5) (a) of Rules 1965. As such even the appointment of inquiry officer is dehors the rules.
9. Learned counsel would further contend that once a time limit, as a final opportunity of six weeks upto 21.3.2008, has been accorded to the respondents to complete the inquiry, their failure to complete inquiry within the aforesaid period resulted in abatement of the proceedings and for this, decisions of coordinate Bench of this Tribunal in OA-171/2001 and OA-172/2001 have been relied upon.
10. On the other hand, learned counsel for respondents, Shri H.K. Gangwani vehemently opposed the contentions and by way of an additional affidavit filed in pursuance of our directions stated that once there has been a delegation of power by the disciplinary authority, the approval accorded by the Finance Minister holds good not only for initiation of the proceedings but also for the issuance of charge sheet and appointment of inquiry and presenting officers.
11. Learned counsel would also rely upon the Authentication of Order and other Instruments, Rules 1958 and also Govt. of Indias (Transaction of Business) Rules, 1961 to contend that power of the President have been delegated under the aforesaid rules. The procedure lays down that disciplinary authority has to follow the same and in such view of the matter, Finance Minister is competent to delegate the function to the Secretary or by a special order on delegation to any other authority, which on being delegated, the proceedings initiated against the applicant are valid in law.
12. Learned counsel would also contend that presenting officers certificate shows that the document sought for by the applicant has been served upon him, which is transfer proforma and as such, they should be given reasonable time to conclude the proceedings to bring the disciplinary proceedings to a logical conclusion.
13. Shri Gangwani would also contend that the allegations against Govind Manish were different and quashing of the charge sheet when challenged before the High Court, a stay would disentitle the applicant to treat the aforesaid case as a precedent to be followed in the instant case.
14. A reference to Rule 14 (3) of Rules 1965 has been made to contend that the charge sheet is with jurisdiction.
15. What has been submitted under Rule 14 (4) of Rules 1965 is to deliver a copy of the article of charge and imputation. It is not necessary as per Rule 20.2 of Vigilance Manual that written statement of defence is to be sought and before appointment of inquiry officer or the presenting officer, the charge memo be approved.
16. We have carefully considered the rival contentions of the parties and perused the material on record.
17. We find during the course of hearing, learned counsel for applicant has produced before us an office order dated 19.7.2005 whereby delegation of various powers in respect of disciplinary action has been stated. Insofar as levels of decision making for approval of charge memo is concerned, Finance Minister being the disciplinary authority is the only authority competent to seek approval and there is no delegation provided or permissible.
18. In the light of above on perusal of page 85 of the paper book what we find that the disciplinary authority has approved only initiation of the proceedings and simultaneously sanctioned for prosecution. In the disciplinary proceedings further approval has been given to the appointment of inquiry as well as presenting officers. We do not find even remotest reference to the charge sheet to be issued to the applicant either deemed approval or with a reservation that the same stands approved by the Finance Minister.
19. A decision of coordinate Bench, to which we do not disagree, is a binding precedent in the wake of doctrine of precedent and the decision of the Apex Court in Sub Inspector Rooplal & another v. Lt. Governor through Chief Secretary, Delhi & others, (2000) 1 SCC 644.
20. The dicta ruled mutatis mutandis applies to the facts and circumstances of the present case. Insofar as the issue of non-approval of the charge sheet and what amounts to approval has been dealt with and mere approval of initiation of proceedings and appointment of inquiry and presenting officers would not amount to according approval to the charge memo, which is a subsequent stage under Rules 1965. It is very strange that when an approval goes to the disciplinary authority, it should not preempt and reserve in contingency right of approval or this deemed approval has to be effective for all proceedings to come. A requirement in law and the manner in which even the quasi-judicial authority has to act is to be in a manner prescribed under the statute, as the administrative authorities while acting as quasi-judicial authorities, being creature of status, are bound, in all fours, by it. As no specific approval has been accorded by the disciplinary authority to the charge sheet, it is right from inception without jurisdiction and is not sustainable in law. We respectfully follow the dicta in S.K. Srivastavas case (supra), which covers the present issue.
21. As regards the appointment of inquiry officer, Rule 14 (5) (a) of Rules 1965 has an object sought to be achieved with a reasonable nexus. In case a charge memo is issued to delinquent, who is being proceeded against under Rules 1965, then on his written statement rebutting the charge and the brief submitted thereupon as to illegality, an inference on consideration has to be drawn by the disciplinary authority that either the charges are contrary to law or are not warranted on the basis of material supplied to the delinquent. In such an event, an inquiry will not proceed further and shall culminate into exoneration of the concerned without following the entire ordeal of the disciplinary proceedings. This opportunity is possible only when a charge memo is issued and on receipt of the statement of defence, an inquiry officer is appointed. Short-circuiting this procedure when it is mandated under the rules and which causes infraction of a substantive procedure causing prejudice to the concerned, then the entire gamut and methodology adopted by the disciplinary authority would be construed as dehors the rules and in such an event, the appointment of inquiry officer in this case is also not sustainable in law.
22. Insofar as the abatement of the inquiry is concerned, we do not want to record any finding, as we are satisfied that in the present form neither the charge sheet nor the continued proceedings are sustainable in law.
23. Resultantly, OA is allowed. Impugned charge sheet is set aside. However, we make it clear that the documents served upon the applicant regarding transfer proforma are not in their complete shape, as the list of officers, who have also been considered, has not been served upon the applicant. In such an event, the liberty is accorded to the respondents, if so advised, to take appropriate action against the applicant but before doing so, the complete document at Sl.No.8 of the list of documents in the charge sheet shall be served upon him. Consequences in law shall ensue upon the applicant. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/