Supreme Court quashes ex-post facto approval of charge memorandum in disciplinary proceedings: Sunny Abraham vs. Union of India (2021)

Date of the Judgment: 17 December 2021

Citation: [2021] INSC 738

Judges: L. Nageswara Rao, J., Aniruddha Bose, J.

Can a disciplinary proceeding against a government employee be considered valid if the charge memorandum was not initially approved by the disciplinary authority, but was approved later? The Supreme Court of India addressed this critical question in a case involving an Assistant Commissioner of Income Tax. The core issue revolved around whether a charge memorandum, which was not approved by the disciplinary authority before its issuance, could be validated by a subsequent approval. This judgment clarifies the procedural requirements for disciplinary proceedings under the Central Civil Services (Classification, Control and Appeal) Rules, 1965.

The bench comprised Justices L. Nageswara Rao and Aniruddha Bose, with the judgment authored by Justice Aniruddha Bose. The court unanimously held that a charge memorandum issued without prior approval from the disciplinary authority is invalid and cannot be validated by ex-post facto approval.

Case Background

The appellant, Sunny Abraham, was an Assistant Commissioner of Income Tax. In 2002, while he was an Income Tax Officer in Surat, allegations surfaced that he, in collusion with a Deputy Commissioner of Income Tax, had demanded a bribe from a businessman during a survey under Section 133A of the Income-Tax Act, 1961.

Specifically, it was alleged that the appellant and the Deputy Commissioner demanded five lakhs rupees other than legal remuneration for settling the matter and later, the Deputy Commissioner accepted two lakhs rupees. Based on these allegations, disciplinary proceedings were initiated against him on 19th September, 2002, with the approval of the Finance Minister, the Disciplinary Authority. A charge memorandum was issued to the appellant on 18th November, 2002, but this charge memorandum was not specifically approved by the Finance Minister.

An enquiry officer was appointed, who submitted his report on 13th July, 2007. The Central Vigilance Commission (CVC) concurred with the findings. The appellant then initiated several proceedings, mainly on procedural irregularities.

Timeline

Course of Proceedings

The appellant, relying on the Central Administrative Tribunal’s (CAT) decision in the case of B.V. Gopinath, filed an application (O.A. No. 344 of 2012) to quash the charge memorandum. The Tribunal disposed of this application, allowing the appellant to raise the issue before the Disciplinary Authority. When the Disciplinary Authority did not consider the appellant’s representation, the appellant filed another application (O.A. No. 1047 of 2012), which was disposed of with a direction to complete the inquiry within three months. The appellant’s request to quash the charges was rejected because the Union of India’s appeal against the CAT decision in B.V. Gopinath was pending before the Supreme Court.

The appellant continued to file applications based on the Supreme Court’s decision in B.V. Gopinath. On 23rd January 2014, the appellant was informed that the charge memorandum dated 18th November 2002 had been approved by the Disciplinary Authority on 8th January 2014, and that the proceedings would continue. The Principal Bench of CAT quashed this Office Memorandum on 20th April 2015, stating that such approval could not be granted ex-post facto. The Union of India challenged this decision in the Delhi High Court.

Legal Framework

The case primarily revolves around the interpretation of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. Specifically, sub-clauses (2) and (3) of Rule 14 are relevant:

• Rule 14(2): States that the disciplinary authority must decide whether a formal inquiry should be conducted.
• Rule 14(3): Specifies that the disciplinary authority shall draw up or cause to be drawn up the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge.

The Supreme Court in Union of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351], had previously interpreted these rules. The court had held that the term “cause to be drawn up” in Rule 14(3) does not mean that the articles of charge do not need approval by the disciplinary authority. The court had clarified that the disciplinary authority can delegate the task of drawing up the charges, but the final articles of charge must be approved by the disciplinary authority. The court had also emphasized that any rule prescribing that the initiation of proceedings should be by an officer not subordinate to the appointing authority is an additional safeguard and is not inconsistent with Article 311 of the Constitution.

Arguments

Appellant’s Arguments:

• The appellant argued that the charge memorandum issued on 18th November 2002 was invalid because it was not approved by the Disciplinary Authority (Finance Minister) before its issuance.
• Relying on the Supreme Court’s decision in B.V. Gopinath (supra), the appellant contended that a charge memorandum not approved by the disciplinary authority is “non est” (not in existence) in the eyes of the law.
• The appellant emphasized that the subsequent approval given on 8th January 2014 could not validate the charge memorandum because it was fundamentally defective from its inception.

Respondent’s Arguments:

• The respondents argued that there was no bar on granting ex-post facto approval to the charge memorandum by the Disciplinary Authority.
• They contended that the ex-post facto approval given on 8th January 2014 cured the defect, as identified in the B.V. Gopinath (supra) case.
• The respondents relied on the judgments in Ashok Kumar Das and Others vs. University of Burdwan and Others [(2010) 3 SCC 616] and Bajaj Hindustan Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC 613] to support their argument that approval includes ratifying an action, which can be done ex-post facto.
• The respondents argued that the proceedings in the B.V. Gopinath case were concluded, whereas in the appellant’s case, the proceedings were still pending when ex-post facto approval was granted, thus making a difference in the application of law.

Issues Framed by the Supreme Court

The Supreme Court framed the following key issue:

1. Whether, in light of Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, a charge sheet or charge memorandum can be given ex-post facto approval?

Treatment of the Issue by the Court

Authorities

The court considered the following authorities:

Judgment

How each authority was viewed by the Court?

• The Supreme Court followed its earlier decision in Union of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351]*, which held that a charge memorandum without the disciplinary authority’s approval is “non est” (not in existence) in the eyes of the law.
• The Court distinguished the cases of Ashok Kumar Das and Others vs. University of Burdwan and Others [(2010) 3 SCC 616]* and Bajaj Hindustan Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC 613]*, stating that those cases dealt with the general principle that approval can be ex-post facto, but were not applicable to the specific disciplinary rules in this case.
• The Court also followed State of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018) 17 SCC 677]*, which interpreted similar rules under the All India Services (Discipline and Appeal) Rules, 1969, and held that the charge memorandum should be approved by the disciplinary authority.

What weighed in the mind of the Court?

The Court emphasized the importance of procedural compliance in disciplinary proceedings. The Court held that the requirement for approval of the charge memorandum by the disciplinary authority is not a mere formality but a mandatory safeguard. The Court reasoned that the Disciplinary Authority’s approval at two stages – initiation of inquiry and drawing up of the charge memorandum – is crucial for ensuring fairness and accountability. The Court also stressed that a charge memorandum that is “non est” cannot be validated retrospectively. The court held that the approval for initiating disciplinary proceedings and approval to a charge memorandum are two divisible acts, each requiring independent application of mind on the part of the Disciplinary Authority.

The Court’s decision was primarily influenced by the legal interpretation of Rule 14 of the CCS (CCA) Rules, 1965, and the precedent set in B.V. Gopinath (supra). While the factual aspects of the case were considered, the legal principles and procedural requirements were the dominant factors in the Court’s reasoning.

The court considered alternative interpretations, including the respondent’s argument that ex-post facto approval was permissible and that the pending nature of the proceedings in this case justified a different interpretation. However, the Court rejected these interpretations, emphasizing that the requirement of prior approval is mandatory and that a charge memorandum not approved before issuance is fundamentally defective. The Court also highlighted that the term “non est” means that the charge memorandum is not in existence due to a legal lacuna and cannot be revived by subsequent approval.

The Court’s decision was clear: “What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum.” The Court also stated, “In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority.” Further, the court stated that, “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.”

The court’s decision was unanimous, with both judges agreeing on the interpretation of the relevant rules and the application of the precedent. There were no dissenting opinions.

The decision has significant implications for future cases involving disciplinary proceedings. It reinforces the importance of adhering to procedural requirements and clarifies that ex-post facto approval cannot validate a charge memorandum that was not properly approved initially. This judgment also clarifies that the approval for initiating disciplinary proceedings and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority.

Key Takeaways

• A charge memorandum issued without prior approval from the disciplinary authority is invalid.
• Ex-post facto approval cannot validate a charge memorandum that was not initially approved.
• The approval for initiating disciplinary proceedings and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority.
• Disciplinary authorities must ensure strict adherence to procedural requirements under Rule 14 of the CCS (CCA) Rules, 1965.
• This judgment reinforces the principle that procedural safeguards are essential for ensuring fairness in disciplinary proceedings.

The judgment will likely lead to greater scrutiny of the approval process for charge memorandums in disciplinary cases. It may also result in the quashing of disciplinary proceedings where charge memorandums were issued without proper approval. This decision clarifies the legal position and provides clear guidance for disciplinary authorities.

Directions

The Supreme Court directed that if the department wishes to continue the disciplinary proceedings, a fresh charge memorandum should be issued within two months, after the Disciplinary Authority is satisfied with the material produced.

Development of Law

The ratio decidendi of this case is that a charge memorandum issued without prior approval of the disciplinary authority is “non est” and cannot be validated by ex-post facto approval. This judgment reinforces the legal position established in B.V. Gopinath (supra) and clarifies that the approval for initiating disciplinary proceedings and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. There is no change in the previous position of law, but the judgment clarifies the existing position and reiterates the importance of procedural compliance in disciplinary proceedings.

Conclusion

The Supreme Court’s decision in Sunny Abraham vs. Union of India reaffirms the necessity of obtaining prior approval from the disciplinary authority before issuing a charge memorandum. The Court held that a charge memorandum issued without such approval is invalid and cannot be validated by ex-post facto approval. This judgment emphasizes the importance of adhering to procedural safeguards in disciplinary proceedings and provides clear guidance for disciplinary authorities.