SUNNY ABRAHAM versus UNION OF INDIA & ANR.

Citation: [2021] 9 S.C.R. 892 · Decided: 17-12-2021 · Supreme Court of India · Bench: L. NAGESWARA RAO · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2021] 9 S.C.R.
   [2021] 9 S.C.R. 892
892
SUNNY ABRAHAM
v.
UNION OF INDIA & ANR.
(Civil Appeal No. 7764 of 2021)
DECEMBER 17, 2021
[ L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
Central Civil Services (Classification, Control and Appeal)
Rules, 1965 – r.14(2), (3) – Disciplinary proceeding initiated against
the appellant-Asstt. Commissioner of Income Tax with the approval
of the Disciplinary Authority-the Finance Minister – However,
charge memorandum issued to the appellant was not approved by
the Finance Minister – Approved ex-post facto – Appellant was
informed through an Office Memorandum – Office Memorandum
quashed by CAT, liberty granted to department to issue fresh
memorandum of charges u/r.14 – Order set aside by High Court –
Held: While construing r.14(2), (3) which is applicable in the present
case, a Co-ordinate Bench of Supreme Court in the Union of India
and Ors. vs. B.V. Gopinath reported as [2013] 14 SCR 185 held that
charge memorandum not having approval of the Disciplinary
Authority would be non-est in the eye of the law – Thus, absence of
the expression “prior approval” in r.14 would not have any impact
so far as the present case is concerned – Further, sub-clauses (2)
and (3) of r.14 contemplate 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 u/
sub- clause (3) would render the charge memorandum fundamentally
defective, not capable of being validated retrospectively – Judgment
of High Court set aside while that of CAT is restored with modification
on operational part, as directed – Income Tax Act, 1961 – s.133A –
All India Services (Discipline and Appeal) Rules, 1969 – Service
Law.
Words & Expressions – “non est” – Meaning of – Discussed.
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Allowing the appeal, the Court
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 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 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-A-
B]
SUNNY ABRAHAM v. UNION OF INDIA & ANR.
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894
SUPREME COURT REPORTS
[2021] 9 S.C.R.
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 [(

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