Central Administrative Tribunal - Delhi
Shri Sunny Abraham vs Union Of India on 20 April, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.1157/2014
Reserved On:11.03.2015
Pronounced On:20.04.2015
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. P.K. BASU, MEMBER (A)
Shri Sunny Abraham
S/o Shri C.P. Abraham
Aged about 57 years,
R/o 601, Shivanjali Apartments,
Rangila Parka, Ghoddod Road,
Surat (Gujarat). .Applicant
By Advocate: Shri Nilansh Gaur.
Versus
1. Union of India
Through Revenue Secretary,
Ministry of Finance,
Department of Revenue,
Central Board of Direct Taxes,
North Block,
New Delhi-110001.
2. The Chairman,
Central Board of Direct Taxes,
North Block,
New Delhi-110 001. Respondents
By Advocate: Shri M. Balasubramanian with Ms. Madhurima
Tatia and Shri R.N. Singh.
ORDER(ORAL)
G. George Paracken, Member(J) The Applicant in this Original Application has challenged the Memorandum dated 23.01.2014 to the extent that the Respondents have decided to continue with the disciplinary proceedings against him from the stage it stood before the earlier Memorandum dated 18.11.2002 issued to him. According to him, the Respondents could not have resurrected the Memorandum dated 18.11.2002 by the impugned Memorandum dated 23.01.2014 thereby denying him promotions to the posts of Deputy Commissioner of Income Tax (DCIT for short) and Joint Commissioner of Income Tax (JCIT for short) for which he was entitled to be considered from 19.09.2006 and 30.03.2011 respectively, i.e., the dates from which his juniors have been promoted to the aforesaid posts. He has, therefore, sought a direction to the Respondents to treat the Memorandum dated 23.01.2014 as non-est and to consider him for promotion to the aforesaid posts from the due dates with all consequential benefits including arrears of pay and seniority.
2. The brief facts of the case are that the Applicant joined the Respondent-Income Tax Department as an Income-Tax Officer in the year 1980. Thereafter, he was promoted to the post of Inspector and Assistant Commissioner in the years 1991 and 2001 respectively. On 18.11.2002, the Respondents issued a Memorandum proposing to initiate major penalty proceedings against him under Rule 14 of the CCS (CCA) Rules, 1965 for certain alleged misconduct committed by him during the year 1998 while he was posted as an Income-Tax Officer in Range-2, Surat. The Statement of Article of Charge against him was as under:-
Article-I Shri Sunny Arbraham while posted and functioning as Income Tax Officer, Ward-2(8), Range-II, Surat, during the year 1988, committed misconduct in as much as he, being in collusion with Shri K.K. Dhawan, Dy. Commissioner of Income Tax, Range-2, Surat, deliberately got conducted a Survey under Section 133(A) of Income Tax Act, 1961 with an ulterior motive, at five Proprietary Group concerns of Shri Mukeshchandra Dahyabhai Gajiwala and his family on 03.03.1998 and further colluded with Shri K.K. Dhawan to deman an amount of Rs.5 lacs, other than legal remuneration, from Shri Mukeshchandra D. Gajiwala through Shri R.M. Gajjar, Advocate on 03/04-03-1998, for settling the matter of Survey and reducing the amount and in furtherance thereof, during negotiations on 05.03.1998, in the presence of Shri Sunny Abraham, Shri K.K. Dhawan demanded an amount of Rs. 2 lacs, other than legal remuneration, from Shri M.D. Gajiwala and subsequently, on the night of 05.03.1998, Shri K.K. Dhawan accepted the said amount of Rs.2.00 lacs other than legal remuneration from Shri M.D. Gajiwala.
The Inquiry Officer concluded the proceedings on 02.08.2008 and forwarded his report to the Disciplinary Authority on 13.07.2007. Thereafter, the matter was referred to the CVC for their opinion. After the CVC concurred with the findings of the Enquiry Officer, Disciplinary Authority, vide its Memorandum dated 23.12.2009, forwarded copies of both the report of the Enquiry Officer and the advice of the CVC to the Applicant. The Applicant challenged the aforesaid report of the Enquiry Officer before the Ahmedabad Bench of this Tribunal vide OA No.228/2010 on the ground that the Inquiry Officer violated the mandate of sub-rule (18) of Rule 14 of the CCS (CCA) Rules, 1965. However, the said OA was dismissed vide order dated 30.06.2011. The operative part of the said order reads as under:-
16. In the given circumstances, we are of the considered opinion that Applicant by his conduct has acquiesced in the matter and, therefore, waived the said procedural requirement. At this stage, when he was afforded an opportunity to submit representation, if any, any receipt of second stage CVC advice, vide Memorandum dated 23.12.2009, he cannot be allowed to put the clock back. We may note after 02/08/2006 till such date, there had not been any substantive development which would permit fresh cause of action of action. Merely, seeking minutes of Daily Order Sheet under the RTI Act would not be of any consequence, particularly when it was not disputed that copy of said minutes were supplied to him on conclusion of the said date proceedings. There is no illegality or infirmity in the inquiry proceedings. We do not find any substance in the contentions raised by the Applicant, and accordingly, the same are overruled.
17. In view of discussion made hereinabove, findings no merits OA is dismissed. No costs.
3. Meanwhile, the Principal Bench of this Tribunal, vide order dated 05.02.2009 in OA No.800/2008 Shri B.V. Gopinath Vs. Union of India through the Revenue Secretary, Ministry of Finance and Others held that in the absence of the approval of the charge by the competent authority (the Finance Member), further proceedings in the disciplinary case will not be sustained. The operative part of the said order reads as under:
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.
4. The Respondents challenged the aforesaid order of this Tribunal before the Honble High Court of Delhi, vide C.W.P ( C) No.10452/2009 and High Court vide its judgment dated 28.07.2009 dismissed the same. The Respondents again challenged the aforesaid judgment of the High Court before the Honble Supreme Court of India vide SLP ( C) No.7761/2013.
5. On the basis of the aforesaid order of this Tribunal in B.V. Gopinaths case as upheld by the Honble High Court, the Applicant again filed OA No.344/2012 before this Tribunal to quash the aforesaid charge. However, this Tribunal, vide order dated 01.02.2012, disposed of the said OA with a liberty to the Applicant to raise the point regarding non approval of the charge by the competent authority before the Disciplinary Authority and to approach the Tribunal again, in case any adverse order is passed against him. Since the Inquiry Officer had already held him partly guilty of the aforesaid charge, in pursuant to the aforesaid directions of this Tribunal in OA No.344/2012 (supra), the Applicant made representation to the Disciplinary Authority on 06.02.2012 followed by reminder dated 07.04.2012 to quash the charge sheet as the same was not approved by the Honble Finance Minister who was the competent authority in his case. As the Respondents did not consider his aforesaid representations, he again approached this Tribunal vide OA No.1047/2012 and it was also disposed of, vide order dated 30.04.2012, with a direction to the Respondents to make a sincere endeavour to dispose of the pending enquiry in accordance with the rules within a period of 3 months. However, the Respondents, vide their letter dated 13.06.2012 turned down his request on the ground that since the SLP in the case of B.V. Gopinath was pending before the Apex Court, his charge cannot be quashed. Thereafter, the Applicant filed OA No.2286/2012 (supra) before this Tribunal and it was disposed of on 17.12.2012. Being a short order, the same is reproduced as under:-
We have heard the learned counsel for the parties at length.
2. An objection was raised by the learned counsel on behalf of the respondents that the applicant had filed applications at several stages of the proceedings and made all the endeavour to stall the finalization of the disciplinary proceedings. To substantiate, our attention was drawn to the order dated 13.06.2012 and it was submitted by Shri R.N. Singh that the applicants representation/reply after submission of enquiry report, disciplinary authorities view and also on CVC advice was still not filed though 15 days time was granted vide order dated 13.06.2012.
3. At this stage, Shri Nilansh Gaur, learned counsel for the applicant, sought leave of this Tribunal to withdraw this application with leave to file detailed representation/reply to the aforesaid enquiry report and CVC advice. He submits that the same would be filed within two weeks. The prayer is allowed. The application is accordingly permitted to be withdrawn with the aforesaid liberty. It goes without saying that in the event such representation/reply is filed against the inquiry report, the same would be considered and disposed of by a reasoned and speaking order expeditiously.
4. The OA stands dismissed as withdrawn granting aforesaid liberty and with no order as to costs.
6. Thereafter, he made representation dated 24.12.2012. As the Respondent did not comply with the aforesaid order dated 17.12.2012 by disposing of his representation dated 24.12.2012, the Applicant filed MA No.1135/2013 under Rule 24 of the CAT (Procedure) Rules, 1987 for execution. However, during the pendency of the aforesaid MA, the Respondents have submitted that the Applicants representation dated 24.12.2012 was considered and rejected by the Disciplinary Authority. Thereafter, his case was referred to UPSC for its statutory advice and the same has since been received. The same was being provided to the Applicant for his comments/submissions. In view of the above submission of the Respondents, this Tribunal disposed of the aforesaid MA vide order dated 28.10.2013 and it reads as under:-
Sunny Abraham Item No.10.MA No.1135/2013 OA No.2286/2012
28.10.2013 Present: Shri Nilansh Gaur, counsel for applicant.
Shri R.N. Singh, counsel for respondents.
By means of this MA (MA No.1135/2013) filed under Rule 24 of CAT (Procedure) Rules, 1987, the applicant has sought execution of the order of the Tribunal dated 17.12.2012 passed in OA No.2286/2012. It has been averred in the application that the Respondents have not complied with the aforesaid order of the Tribunal dated 17.12.2012 by disposing the representation which was filed by the Applicant on 24.12.2012.
When the matter was heard on 22.08.2013, the respondents counsel was asked to inform as to whether the representation filed by the applicant has been disposed of or not and what is the stage of departmental proceeding. Shri R.N. Singh, learned counsel, has appeared today and raised objection about the maintainability of this application. He submits that the OA was dismissed as withdrawn on the prayer made by the Applicant and a simple observation was made by the Court that in the event the applicant makes a representation, the same may be considered and disposed of. He further submits that pursuant to the aforesaid order of the Tribunal, the respondents have considered the representation filed by the applicant on 24.12.2012 and rejected the same. It has further been stated that the disciplinary authority has given the approval for referring the matter to the UPSC for statutory advice in the pending proceeding and the same since has been received and is being provided to the charged officer for his comments/submissions. He has produced before us a copy of the aforesaid instructions dated 23/25.10.2013.
In view of the above statement stating that the representation has been rejected and further regarding the stage of the proceeding, we are of the view that no order is required to be passed in this MA. It is accordingly rejected. However, learned counsel for the applicant submits that the order of rejection and the order seeking comments/submissions on the report of the UPSC have not yet been served to the Applicant. We, therefore, direct the respondents to provide the copy of the order of rejection of representation as well as the order inviting comments/submissions, as stated and mentioned in the aforesaid letter dated 23/25.10.2013, within a reasonable time to the applicant preferably within four weeks.
7. The Applicant again filed CP No.571/2013 in MA No.2286/2012 in OA No.1135/2013 (supra) and during the pendency of the same, the impugned OM dated 23.01.2014 was issued. Therefore, this Tribunal, vide its order dated 06.03.2014 closed Contempt Petition. The said OM is under challenge in this Original Application and it is reproduced as under:-
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 MEMORANUDM WHEREAS, the 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 19.09.2002 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 05.09.2013 of the Supreme Court in the case of Union of India Vs. B.V. Gopinath and others (SLP No.6348/2009), the Memorandum from F.NoC-14011/10/99-VL 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 08.01.2014;
AND WHEREAS, the Disciplinary Authority has also approved continuation of disciplinary proceedings from the stage where the proceedings stood before the Charge Memorandum F.No.C-14011/10/99-V&L dated 18.11.2002 has been duly approved by the Disciplinary Authority and that the disciplinary proceedings in the matter would continue from the stage where the proceedings stood before the Charge Memorandum F.No.C-14011/10/99-V&L dated 18.11.2002 was formally approved by the Disciplinary Authority.
(BY order and in the name of the President of India) Sd/-
(Dr. Prashant Rhambra) Under Secretary to the Govt. of India Encl: Copy of Charge Memorandum F.No.C-14011/10/99-V&L dated 18.11.2002 To Shri Sunny Abraham, ACIT Through Chief Commissioner of Income Tax(CCA), Ahmedabad.
Copy to:-
1. The CCIT (CCA), Ahmedabad along with the copy for Shri Sunny Abraham, ACIT with a request to affect service and send acknowledgement (FAX:01123232897).
2. The DGIT (V) New Delhi.
3. Office Copy.
Sd/-
(Dr. Prashant Rhambra) Under Secretary to the Govt. of India.
8. Meanwhile, the Apex Court, vide its judgment dated 05.09.2013 [2013 (11) SCALE 16] decided the case of B.V. Gopinath (supra), upholding the aforesaid order/judgment of this Tribunal as well as the High Court. The operative part of the said order reads as under:-
45. 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 the CVO. According to the learned Addl. 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 the 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. We are unable to accept the submission of the learned Addl. 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 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. In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of the 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 Rule 3(1)(i) and (3) (1) (iii) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the appellant 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.
46. 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. In our opinion, the submission of the learned Addl. 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 law. This plea of the respondent has been accepted by the 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 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.
47. 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.
48. Therefore, it appears that the appeals in these matters were filed and pursued for an authoritative resolution of the legal issues raised herein.
49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law.
50. For the reasons stated above, we see no merit in the appeals filed by the Union of India. We may also notice here that CAT had granted liberty to the appellants to take appropriate action in accordance with law. We see no reasons to disturb the liberty so granted. The appeals are, therefore, dismissed.
9. According to the learned counsel for the Applicant, the impugned order is in violation of the dicta in the case of B.V. Gopinath (supra) decided by the Apex Court. He has also stated that the aforesaid order is quite discriminatory. In this regard he has stated that in an identical case of one Shri L.S.Negi, the Respondents have issued a fresh charge sheet instead of resurrecting the earlier charge sheet. In his case, a charge sheet was issued to him under Rule 14 of the CCS (CCA) Rules, 1965 initially on 04.11.2004. He has also relied upon the judgment of the Apex Court in the case of B.V. Gopinath (supra). Accordingly, this Tribunal quashed the aforesaid charge sheet vide order dated 07.03.2012 in OA No.3950/2011 on the ground that it was not approved by the Finance Minister. Thereafter, the Disciplinary Respondent proposed to hold a fresh enquiry against him under Rule 14 of the CCS (CCA) Rules, 1965 vide Memorandum dated 25.11.2013 observing that the Apex Court held in SLP (No.6348/2011) filed by Shri B.V. Gopinath in the aforesaid case held that the charge sheet/charge memo having not been approved by the Disciplinary Authority was non-est in the eye of law. The said Memorandum is reproduced as under:-
F.No.C-14011/29/2013-V&L Government of India, Ministry of Finance, Department of Revenue, Central Board of Direct Taxes, New Delhi.
Dated: 25.11.2013 MEMORANDUM
1. WHEREAS, an enquiry was being held against Shri L.S. Negi, the then Joint Commissioner of Income Tax, under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 by issue of a Memorandum dated 04.11.20014;
2. WHEREAS, the said Memorandum dated 04.11.2004 was quashed by Central Administrative Tribunal, Principal Bench (CAT-PB) vide their order dated 07.03.2012 in OA No. 3950/2011 on the ground that the same was not approved by the Finance Minister;
3. WHEREAS, while quashing the charge-sheet, CAT-PB observed in its order that if the charge is approved by the concerned Minister, the proceedings may start from the stage where it was;
4. WHEREAS, for quashing the charge-sheet against Shri L.S. Negi, CAT-PB relied upon its earlier judgments in cases of Shri B.V. Gopinath (OA No.800/2008) and Shri S.K. Srivastava (OA No.1434/2008), where also the charge sheets were quashed on the same ground. Appeal of the Department against the order of CAT-PB in the cases of Shri B.V. Gopinath and Shri S.K. Srivastava, did not succeed in Delhi High Court and SLP (No.6348/2011) was filed in the Supreme Court;
5. WHEREAS, the Supreme Court has now delivered their judgment on 5th September, 2013, where the SLP (No.6348/2011) of Department has been dismissed, by holding that the charge sheet/charge memo having not been approved by the disciplinary authority was non-est in the eye of law, the aforesaid Memorandum dated 04.11.2004 has been rendered non-est;
6. WHEREAS, the Supreme Court in its judgment as aforesaid has also noted the liberty granted by the Central Administrative Tribunal for taking appropriate action to continue with the proceedings in accordance with law and have not disturbed the liberty so granted; and
7. NOW, THEREFORE, the President proposes to hold fresh enquiry against Shri L.S. Negi, presently working as Commissioner of Income Tax, under Rule 14 of the CCS (CCA) Rules, 1965. The substance of imputations of misconduct or misbehaviour in respect of which the enquiry is proposed to be held is set out in the enclosed statement of article of charge (Annexure-I). A statement of imputations of misconduct or misbehaviour in support of the articles of charge is enclosed (Annexure-II). A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexure-III and IV).
a. Shri L.S. Negi is directed to submit within 20 days of the receipt of this Memorandum a written statement of his defence and also to state whether he desires to be heard in person.
b. He is informed that an inquiry will be held only in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or deny each article of charge.
c. Shri L.S. Negi is further informed that if he does not submit his written statement of defence on or before the date specified in sub para (a) above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule 14 of the CCS (CCA) Rules, 1965, or the orders/directions issued in pursuance of the said rule, the inquiring authority may hold the inquiry against him ex-parte.
8. Attention of Shri L.S. Negi, is invited to Rule 20 of the CCS (Conduct) Rules, 1964, under which no Government servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interest in respect of matters pertaining to his service under the Government. If any representation is received on his behalf from any person in respect of any matter dealt within these proceedings, it will be presumed that Shri L.S. Negi is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rule 20 of CCS (Conduct) Rules, 1964.
9. It is brought to the notice of Shri L.S. Negi that this memorandum is being issued without prejudice to further action that may be considered in the circumstances of the case with regard to the aforementioned memorandum dated 04.11.2004.
The receipt of the memorandum may be acknowledged.
(By order and in the name of the President) Sd/-
(Dr. Prashant Khamba) Under Secretary to the Govt. of India To Shri L.S. Negi Commissioner of Income Tax-III, At Kolkata (Through CCIT, Kolkata) Copy to:-
1. CCIT, Kolkata along with the copy meant for Shri L.S. Negi, CIT-III (at Kolkata).
2. US (AD-VI/US(AD-VI-A)/DT(Per.), CBDT, North Block.
3. DGIT (Vigilance), New Delhi.
4. Secretary, CVC, New Delhi.
5. Office copy.
Sd/-
(Dr. Prashant Khamba) Under Secretary to the Govt. of India.
10. The Applicant has, therefore, argued that since the earlier charge sheet issued to him on 18.11.2002 is non-est in the eye of law, the period between 18.11.2002 and 23.01.2014 shall be treated on the basis of legal fiction that no charge sheet was ever been issued to him during the said period and no disciplinary proceedings was pending for all purposes including for the promotions for which he was entitled. He has also submitted that during the aforesaid period, his juniors with Lower Civil Code were promoted to the post of DCIT vide order dated 19.09.2006 and again as JCIT, vide order dated 30.03.2011. However, on both those occasions his case was kept in the sealed cover due to the pending disciplinary proceedings. Now in view of the judgment of the Apex Court in the case of B.V. Gopinath (supra), the sealed cover resorted to for his promotion as DCIT in 1996 and JCIT in 2011 is to be opened and granted him the promotions to those grades from the dates his juniors have been promoted with all consequential benefits.
11. The Respondents have filed their reply stating that the averment of the Applicant that they should have issued a fresh memorandum was wrong as the earlier memorandum has been declared as non-est. Further, according to them, the charge sheet dated 18.11.2002 has never been quashed by the Tribunal or any other court, therefore, the same is still valid. They have also stated that the Disciplinary Authority has noticed that both the charge sheets issued to the Applicant on 18.11.2002 and 23.01.2014 are based on similar facts and allegations and to deliver justice to him, the technical infirmity, as noticed by this Tribunal as well as the Apex Court in B.V. Gopinath (supra) was removed and the Disciplinary Authority formally approved the Memorandum of charge dated 18.11.2002 on 08.01.2014. Therefore, there is no injustice committed by them in issuing the Memorandum dated 23.01.2014.
12. We have heard the learned counsel for the Applicant Shri Nilansh Gaur and the learned counsel for the Respondents Shri M. Balasubramanian with Ms. Madhurima Tatia and Shri R.N. Singh. After the Apex Court has passed its judgment in B.V. Gopinaths case on 05.09.2013, the validity or otherwise of the initial Memorandum issued under Rule 14 of the CCS (CCA) Rules, 1965 without following relevant rules shall not be in doubt. It is also not necessary to re-emphasize that initiation of disciplinary proceedings is a statutory function assigned only to the Disciplinary Authority. The relevant provisions in this regard are contained in sub-rules (2), (3) and (4) of the CCS (CCA) Rules, 1965 which reads as under:-
(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 thereof.
XXX XXX XXX (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) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person".
Citing the aforesaid Rules, the Apex Court in the case of B.V. Gopinath (supra) held that the stage of initiating the disciplinary proceedings under Rule 14(2) ibid is distinct and separate from issuing a charge memo under Rule 14(3) and it is not a continuing act because it is not necessary that every disciplinary proceeding initiated would definitely result in issuing a charge memo because after initiating the disciplinary proceedings it may be found from the material on record that, the memo of charge need not be served because the charges may not be made out or a lesser charge could be made out. Therefore, the Disciplinary Authority has to apply its mind again on the evidence and material on record pursuant to initiation of disciplinary proceedings to come to the decision as to whether the charge memo deserves to be issued. The Apex Court has also upheld the findings of this Tribunal in the matter that the charge sheet not having been issued by the Disciplinary Authority is non-est in the eye of law.
13. Again, the Apex Court in its judgment of the Apex Court in the case of Chairman-Cum-M.D., Coal India Ltd. and Others Vs. Ananta Saha and Others JT 2011 (4) SC 252 wherein it has been held that the Disciplinary Authority cannot issue a charge sheet in a routine manner but he has to apply his mind. Further, the Apex Court has held that the Disciplinary Authority should pass some positive order taking into consideration the material on record before passing an order to initiate disciplinary proceedings. The relevant part of the said judgment reads as under:-
28. The aforesaid order reveals that the OSD had prepared the note which has merely been signed by the CMD, ECL. The proposal has been signed by the CMD, ECL in a routine manner and there is nothing on record to show that he had put his signature after applying his mind. Therefore, it cannot be held in strict legal sense that the proceedings had been properly revived even from the stage subsequent to the issuance of the charge sheet. The law requires that the disciplinary authority should pass some positive order taking into consideration the material on record.
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30. It is a settled legal proposition that if initial action is not in consonance with law, subsequent proceedings would not sanctify the same. In such a fact-situation, the legal maxim "sublato fundamento cadit opus" is applicable, meaning thereby, in case a foundation is removed, the superstructure falls.
31. In Badrinath v. Govt. of Tamil Nadu & Ors., AIR 2000 SC 3243, this Court observed that once the basis of a proceeding is gone, all consequential acts, actions, orders would fall to the ground automatically and this principle of consequential order which is applicable to judicial and quasi-judicial proceedings is equally applicable to administrative orders. (See also State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191; and Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors. AIR 2010 SC 3745).
32. As in the instant case, there had been no proper initiation of disciplinary proceedings after the first round of litigation, all other consequential proceedings stood vitiated and on that count no fault can be found with the impugned judgment and order of the High Court.
14. We also find that the Respondents are not unaware of the aforesaid legal position. In the case of Shri L.S. Negi, an officer similarly placed as the Applicant in the matter of disciplinary proceedings, the Respondents have adopted the correct procedure by issuing a fresh Memorandum under Rule 14 of the CCS (CCA) Rules, 1965 treating the earlier Memorandum issued to him under the same rule as non-est as held by the Apex Court in B.V. Gopinaths case (supra). In his case also, the Memorandum of Charge dated 04.11.2004 was quashed by this Tribunal as the same was not approved by the Finance Minister. The Respondents have, thereafter, issued fresh charge Memorandum dated 25.11.2013. The same substance of imputations of misconduct or misbehaviour in respect of which the enquiry was proposed to be held, the statement of imputations of misconduct or misbehavior in support of the articles of charge and the list of documents by which, and a list of witnesses by whom, the articles of charge were proposed to be sustained were also enclosed with the Memorandum. He was also given a fresh opportunity to submit written statement of his defence and also to state whether he desires to be heard in person within 20 days of the receipt of the said Memorandum. However, the Respondents have given a discriminative treatment to the Applicant by issuing the impugned Memorandum dated 23.01.2014 citing the very same judgment of the Apex Court in the case of B.V. Gopinath (supra) and stating that the earlier Memorandum dated 18.11.2002 issued to the Applicant was placed before the Disciplinary Authority and he had accorded approval of the same on 08.01.2004 and also approved continuation of disciplinary proceedings from the stage where the proceedings stood before the Memorandum dated 18.11.2002 was formally approved by the said authority. In the impugned Memorandum, the Respondents have conveniently avoid to state that finding of the Supreme Court in Gopinaths case, that the charge sheet/charge memo having not been approved by the disciplinary authority was non-est in the eye of law which has been specifically quoted in the fresh Memorandum dated 25.11.2013 issued to Shri L.S. Negi. Therefore, the mala fide of the Respondents writ large in the impugned Memorandum dated 23.01.2014 is also quite explicit.
15. In view of the above position, this OA is allowed and the impugned Memorandum dated 23.01.2014 is quashed and set aside. Accordingly, the legal fiction that the Applicant was free from any disciplinary proceedings shall hold good till the impugned Office Memorandum dated 23.01.2014 was issued to him. Consequently, we direct the Respondents to open the sealed covers resorted to in the case of the Applicant for promotions to the posts of DCIT and JCIT with effect from 19.09.2006 and 30.03.2011 respectively and give effect to them from retrospectively with all consequential benefits including arrears of pay and seniority at part with his juniors. The aforesaid directions shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. However, we make it clear that the Respondents will have liberty to issue a fresh Memorandum of Charge under Rule 14 of the CCS (CCA) Rules, 1965 as per rules and law laid down in the matter, if so advised.
16. There shall be no order as to costs.
(P.K. BASU) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh