Sunny Abraham vs Union of India & Anr.

HELD : 1.1 The High Court considered the fact that in the case of B.V. Gopinath, 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 was distinguished by the High Court. The absence of the expression “prior approval” in the aforesaid Rule would not 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 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. [Paras 10, 11][904-C-E]

Union of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351 : [2013] 14 SCR 185 – relied on.

1.2 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 and Bajaj Hindustan Limited, do not apply in the facts of the present case. Because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to expost 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 concerned in the present case, 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 is Ashok Kumar Das and Bajaj Hindustan Limited 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. [Para 11][904-F-H; 905-AB] Ashok Kumar Das and Others vs. University of Burdwan and Others [(2010) 3 SCC 616 : [2010] 3 SCR 429; Bajaj Hindustan Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC 613 : 2016 (3 ) SCALE 669 – held inapplicable.

State of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018) 17 SCC 677 : 2018 AIR 4060 –

relied on.

1.3 The next question 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. 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. 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 subjectinstrument. 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. 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. The approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. [Para 12][905-C-H; 906-A-B]

1.4 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. The judgment of the High Court is set aside and that of the Principal Bench of the Central Administrative Tribunal is restored subject to certain modification on operational part of it. The proceeding against the appellant relates to an incident alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course. [Paras 14-16][907-E-F, G-H; 908-A]