AI Structured Summary
Not yet generated for this judgment
Judgment
O R D E R
Hon’ble Mr. Rajinder Kashyap, Member (A):
Before adverting to the issues that arise for our consideration in the present case, it would be appropriate to briefly notice the factual background giving rise to the present proceedings. Earlier the captioned OA was heard by this Tribunal and the same was disposed of by this Tribunal vide Order/Judgment dated 07.05.2025 with the following observations: -
"7.In OA No. 1528/2016 similar question was raised in this case the applicant in the matter of in OA No. 1528/2016 on 22.03.2018 in the matter of Padma Jaiswal Vs. Union of India, the applicant therein was a 2003 batch IAS officer. She was assigned the AGMUT Cadre and posted to Arunachal Pradesh however, a charge memorandum dated 08.04.2009 was issued by the Ministry of Affairs initiating disciplinary proceedings under Rule 8 of All India Services (Discipline & Appeal) Rules, 1969. A Division Bench of this Tribunal after going through the provisions of Section 03 of All India Service Act, 1951 and Section 07 of All India Services (Discipline and Appeal) Rules, 1969, came to the conclusion that the Ministry of Home Affairs had no authority to initiate disciplinary proceedings against the applicant therein and only State of Arunachal Pradesh was the competent authority. Paras 25, 26, 27 and 28 of the order of the Tribunal dated 22.03.2018 in OA No. 1528/2016 reads as under:
“25.It is settled law that where the delegated authority exercises any authority, it must have valid delegation of powers. Reference can be made to the decision of the Apex Court in Dr. Ramesh Chandra Tyagi v Union of India & others [(1994) 2 SCC 416]. On the analysis of the rules in extenso, we are convinced that the Ministry of Home Affairs had no authority to initiate disciplinary proceedings, what to say of the Ministry of Home Affairs, even the Joint Cadre Authority itself had no jurisdiction or authority under the 1972 Rules. The only authority vests with the joint cadre under rule 7 of the 1969 Rules read with notification dated 28.12.1988 constituting the joint cadre. In view of the law laid down by the Hon'ble Supreme Court regarding powers of the delegatee, the judgment in J. K. Sharma's case (supra) relied upon by the respondents cannot be put into service.
26.Apart from the above, the applicant has specifically pleaded that against an order of imposing penalty upon a member of the joint cadre, the right of appeal is available under rule 16 of the 1969 Rules, whereunder appeal lies to the Central Government. In the event the appellate authority exercises the power as punishing/disciplinary authority, the right of appeal, which is a statutory right, is taken away, which is impermissible in law. The right of appeal is held to be a valuable right by the Hon'ble Supreme Court in Government of Andhra Pradesh & another v N. Ramaniah [(2009) 7 SCC 165].
27.Mr. Jain has also tried to impress upon the Tribunal that all the Union Territories constitute one unit and are equivalent to a State cadre, for which he has made reference to the Allocation of Business Rules as discussed by us in length. Even though we are of the opinion that in absence of any notification notifying all the Union Territories as one cadre, this contention should not be accepted, but assuming it to be true, the argument would still be of no avail to the respondents, the Joint Cadre Authority itself having no legal sanction to act as the disciplinary authority or impose penalty. As noticed hereinabove, under rule 7(b) of the 1969 Rules, it is the State Government of the State where the applicant is serving in connection with affairs of that state, and a constituent of the joint cadre, which is the competent authority to institute the disciplinary action and impose penalty, of course, for imposition of penalty, by virtue of the amendment incorporated in rule 7(6), the Joint Cadre Authority is to be consulted.
28.Imposition of penalty is a serious matter and should not be exercised by any person or authority without sanction of law. Penalty has serious repercussions and affects statutory rights of a Government servant with civil consequences. We are of the considered opinion that the Ministry of Home Affairs is not authorized delegatee of the President and has no authority of law to Initiate disciplinary proceedings. The disciplinary proceedings have not been initiated by the competent authority and thus, all subsequent proceedings are rendered vitiated. Without going into the merits of the controversy and the facts of the disciplinary action against the applicant, we hold that the entire action against the applicant of initiation of disciplinary proceedings and continuing with it being without sanction of law, is non est.”
8.The issue involved in the present OA is, therefore, fully covered by the decision of a Coordinate Bench in OA No. 1528/2016 (supra). Therefore, we are of the considered opinion that there is no reason to take a different view and we respectfully agree with the judgment of the Tribunal.
9.Mr. Verma, learned counsel for the respondents, at this stage, submits that the said judgment of the Tribunal is challenged before the Hon’ble High Court of Delhi, however, Mr. Chhibber, learned counsel for the applicant, submits that no stay order has been issued by the Hon’ble High Court and this fact is not disputed by Mr. Verma. 10. In above circumstances, the impugned charge memorandum deserves to be quashed and set aside solely on the ground that Ministry of Home Affairs is not the competent authority to initiate departmental inquiry against the applicant who was transferred to the State of Arunachal Pradesh. Same is accordingly quashed and set aside.”
The respondents have challenged the aforesaid Order/Judgment of this Tribunal before the Hon’ble Delhi High Court by way of Writ Petition (Civil) No.14025/2025, titled Union of India and others vs. Rinku Dhugga, and the Hon’ble High Court vide common Order/Judgment dated 01.04.2026 allowed the said Writ Petition with the concluding observations which read as under:-
“95.In view of the foregoing discussion, this Court is of the considered opinion that the Tribunal erred in holding that the initiation of disciplinary proceedings by the Ministry of Home Affairs, in respect of a member of the Joint Cadre, was without jurisdiction.
96.The interpretation adopted by the Tribunal proceeds on an isolated and fragmented reading of the 1969 Rules and fails to give due effect to the definitional framework and structural provisions governing a Joint Cadre under the 1954 Cadre Rules and the 1972 Joint Cadre Rules. The conclusions regarding absence of statutory competence, impermissible delegation, and invalidity of the 1989 arrangement are unsustainable in law.
97.Accordingly, the Impugned Order passed by the Tribunal is set aside to the extent it holds the initiation of disciplinary proceedings to be without jurisdiction. The disciplinary proceedings shall stand restored to the stage at which they were interdicted by the Tribunal and shall proceed in accordance with law.
98.W.P.(C) 6699/2018 and W.P.(C) 14025/2025 are allowed and disposed of in the above terms.
99.In view of order dated 31.01.2026, the Registry is directed to list W.P.(C) 12072/2018 and W.P.(C) 12083/2018 on 12.05.2026 for consideration.
100.It is clarified that this Court has expressed no opinion on the merits of the disciplinary proceedings, which shall be dealt with in accordance with law.” (emphasis supplied)
Thereafter, the applicant filed Review Application No.59/2026 before this Tribunal seeking adjudication of the remaining issues. The said Review Application was dismissed by this Tribunal on 08.05.2026. Aggrieved thereby, the applicant has also filed a Writ Petition (Civil) No.6782/2026, titled Rinku Dhugga vs. Union of India and others, before the Hon’ble High Court of Delhi and the Hon’ble High Court vide Order/Judgment dated 26.05.2026 allowed the same in certain terms with the following observations: -
“1.OA 681/2024 was instituted by the petitioner challenging disciplinary proceedings initiated against her pursuant to Memorandum dated 27 February 2023. The petitioner assailed the disciplinary proceedings both on the ground that they had been instituted by an incompetent authority as well as on merits. 2. The Central Administrative Tribunal, by judgment dated 7 May 2025, allowed the OA on the first ground, i.e., that the chargesheet had been issued by an incompetent authority and, therefore, did not proceed to examine the challenge to the disciplinary proceedings on merits.
3.Against the said decision, the UOI approached this Court by way of WP (C) 14025/2025. This Court allowed the writ petition and held that the authority who issued charge-sheet was competent to do so.
4.As a result, the situation that has arisen is that the petitioner’s alternate challenge to the disciplinary proceedings on merits has remained unaddressed by the Tribunal.
5.The petitioner, therefore, moved RA 59/2026 before the Tribunal seeking permission to argue the alternate plea of merits in OA681/2024.
6.On the ground that the order dated 1 April 2026 passed by this Court did not reserve liberty with the petitioner to urge the said grounds, the Tribunal has rejected the RA, but has granted the petitioner liberty to approach this Court to obtain clarifications in that regard.
7.Challenging the said order, the present writ petition has been filed.
8.It is but axiomatic that a party is entitled to urge all arguments advanced in a petition, irrespective of their merits. As the petitioner’s OA had been decided only on the aspect of competence of the authority who issued the charge-sheet, other grounds of challenge to the disciplinary proceedings remained unadjudicated.
9.The right of the petitioner to urge the said grounds cannot be foreclosed.
10.Mr. Mukul Singh, learned CGSC, on instructions, is agreeable to OA 681/2024 being remanded to the Tribunal for hearing on grounds which had been urged in the OA other than the ground of competence of the authority who issued the charge-sheet.
11.Accordingly, we remand OA 681/2024 to the Tribunal for the petitioner to argue all points raised in the said OA other than the plea that the authority who issued the charge-sheet was incompetent to do so.
12.We make it clear that we have not expressed any opinion on the merits of the said submissions and that both sides are at liberty to advance all submissions of fact and law before the Tribunal which would take a call on merits.
13.The writ petition is accordingly allowed in the aforesaid terms.
14.We request the Tribunal to take up and dispose of the matter as expeditiously as possible, preferably within eight weeks from today.”
In view of the aforesaid Order/Judgment dated 26.05.2026 passed in the said WP (C) by the Hon’ble High Court of Delhi, the instant OA now stands remanded to this Tribunal for adjudication of all the grounds urged by the applicant in OA No.681/2024, other than the ground relating to the competence of the authority which issued the charge memorandum. The said ground, having already been conclusively dealt with by the Hon’ble High Court vide its Order/Judgment dated 01.04.2026, does not survive for consideration before this Tribunal. Accordingly, we proceed to examine the remaining grounds raised by the applicant on their respective merits, keeping in view the pleadings of the parties, the material available on record and the submissions advanced by the learned counsel for the parties.
By filing the present OA under Section 19 of the Administrative Tribunals Act, 1985, the applicant is seeking the following reliefs:
“(I)To quash and set aside the Memorandum dated 27.02.2023 and the consequential departmental proceedings initiated by the Respondent No.1 under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, whereby the disciplinary proceedings have been initiated against the Applicant by an action.
(II)To direct the Respondents to exonerate the Applicant of all the charges leveled against her and drop the proceedings, if any pending against the applicant in interest of justice and equity.”
Facts in brief as stated in the captioned OA are that the applicant joined the Indian Administrative Service (IAS) in September 1994 and was allocated the Arunachal Pradesh-Goa-Mizoram-and Union Territories Cadre (in short, ‘AGMUT Cadre’).
By the office order dated 26.05.2022 (Annexure A-3), the applicant was transferred from Delhi to Arunachal Pradesh and on her transfer, the applicant joined her new place of posting in the State of Arunachal Pradesh on 27.06.2023.
By the leave application dated 28.06.2022, the applicant sought earned leave for the period from 30.06.2022 to 16.09.2022. This leave was approved by the competent authority, namely, Chief Secretary, which is evident from Annexures A-5 & A-6.
Despite above, Ministry of Home Affairs issued notice dated 30.12.2022 directing the applicant to show cause as to why disciplinary action should not be alleged against her for alleged misconduct of proceeding on Ex-India leave on personal grounds without prior approval of the competent authority. The applicant replied to the said notice, however, Ministry of Home Affairs issued Charge Memorandum dated 27.02.2023̣ vide which following Article of Charge was levelled against the applicant: -
“ARTICLE-I
Ms. Rinku Dhugga, IAS while posted with the Government of Arunachal Pradesh committed gross misconduct by traveling abroad without approval of the Competent Authority during August, 2022 to February, 2023. Ms. Dhugga has applied for Ex-India Leave from 29.07.2022 to 15.09.2022 which was not approved by the Competent Authority. However, Ms. Dhugga proceeded unauthorisedly and left the country on 07.08.2022 and returned on 01.01.2023. However, she did not report for duty in Arunachal Pradesh. Thereafter, again she left the country on 25.01.2023 without prior intimation
Ms. Rinku Dhugga, IAS (AGMUT:1994), by her aforesaid act exhibited lack of integrity, lack of devotion to duty amounting to unbecoming of a Government servant and thereby violated Rule 3 of All India Services (Conduct) Rules, 1968.
In reply to the Charge Memorandum, the applicant submitted her statement dated 02.04.2023, wherein she, inter alia, sought formal sanction of her Ex-India Leave on humanitarian grounds and requested withdrawal of the Show Cause Notice dated 30.12.2022. Upon consideration of the representation, the Competent Authority found the same to be devoid of merit and rejected it. Thereafter, vide separate orders dated 02.08.2023, the Competent Authority appointed the Inquiry Officer and the Presenting Officer to conduct the departmental inquiry.
Aggrieved by the aforesaid action of the respondents, the applicant has approached this Tribunal by filing the present Original Application, seeking the reliefs as quoted above.
Pursuant to notice issued by this Tribunal, the respondents have filed their replies, to which the applicant has also filed her rejoinder.
Shri Ankur Chhibber, learned senior counsel appearing for the applicant, submitted that the factual foundation of the impugned Charge Memorandum is itself erroneous and that the applicant had not proceeded abroad unauthorisedly as alleged, as the applicant had joined the Government of Arunachal Pradesh on 27.06.2022 and had submitted her joining report in accordance with the prescribed procedure. Thereafter, on 28.06.2022, she met the Hon’ble Chief Minister of Arunachal Pradesh and requested leave up to 15.09.2022, which, according to learned counsel, was sanctioned by the Chief Secretary for the period from 30.06.2022 to 16.09.2022. As such, the very factual basis of the allegation that the applicant had proceeded abroad unauthorisedly was disputed by her from the inception.
Learned senior counsel further submitted that the applicant had, by her reply dated 28.02.2023 addressed to the Ministry of Home Affairs, specifically pointed out that, in terms of the Office Memorandum dated 05.12.2007, the Government of Arunachal Pradesh was the sanctioning authority even in respect of ex-India leave for personal visits. Since the State Government had not treated the applicant’s absence as unauthorised on the date of issuance of the show-cause notice, the initiation of the proceedings was premature and was requested to be withdrawn.
Learned senior counsel has also submitted that the applicant gave the detailed reply to the said impugned Charge sheet dated 27.02.2023 as to why the same is not maintainable and needs to be withdrawn.
Learned senior counsel has further submitted that the subsequent conduct of the respondents and the competent authority supported the applicant’s stand, as the applicant returned to India on 24.04.2023, joined the Government of Arunachal Pradesh and resumed her duties as Principal Secretary, Indigenous Affairs. Thereafter, her application for extraordinary leave (ex-India) for the period from 25.07.2023 to 27.12.2023 was duly approved by the competent authority vide order dated 13.07.2023. According to learned counsel, the grant of such leave by the competent authority demonstrated that the applicant was not being treated as having remained unauthorisedly absent or as having travelled abroad without permission.
Learned senior counsel has further submitted that, while the applicant was on the aforesaid approved leave, the competent authority passed an order dated 07.08.2023 approving applicant's premature retirement in public interest under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958. The said order was communicated to the Ministry of Home Affairs on 08.08.2023. Despite the applicant having been prematurely retired, the respondents continued to pursue the disciplinary proceedings arising out of the charge Memorandum dated 27.02.2023.
Learned senior counsel has contended that the order of premature retirement had brought the applicant’s service to an end and, consequently, the respondents could not continue to subject her to disciplinary proceedings thereafter. Learned counsel pointed out that, despite the premature retirement, the disciplinary proceedings continued, as reflected from the order dated 25.10.2023 and the summons fixing the matter for further hearing on 17.01.2024. According to learned counsel, such continuation of the disciplinary proceedings was wholly impermissible in the facts and circumstances of the case.
Learned senior counsel has, therefore, submitted that the impugned Charge Memorandum and the consequential disciplinary proceedings are liable to be interfered with in view of the applicant’s specific and contemporaneous denial of the allegations, the sanction of leave by the competent authority, and the subsequent premature retirement of the applicant from service.
Learned senior counsel has also pointed out that the Respondents have failed to appreciate that once the relationship between employer and employee has come to an end by virtue of order dated 07.08.2023 whereby the applicant has been prematurely retired by taking the same offence into consideration the respondents cannot be allowed to continue with the said departmental enquiry as the same stands abetted in the facts of the present case.
Learned senior counsel drew our attention to Rules concerning disciplinary action and appeal thereof for the members of All India Services known as 'The All India Services (Discipline and Appeal) Rules, 1969. Rule 2 of said rules lays down the definitions for the purpose of the rules. 2(c) and 29(e) of the rules reads as follows:
"2(c) Government' means- (i) in the case of a member of the Service serving in connection with the affairs of a State, or who is depute; for service in any company, association or body of individuals whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of a State, the Government of that State;"
"2(e) 'State Government concerned' in relation to a joint cadre, means the Government of all the States for which the joint cadre is constituted and includes the Government of a State nominated by the Government of all such States to represent them in relation to a particular matter."
Pertinently, Rule 7 of the said Rules of 1969 prescribes as to who would be the competent authority to institute the proceedings and to thereupon impose penalties. The relevant extract of Rule 7 of the Rules ibid is reproduced as under: -
"7. Authority to institute proceedings and to impose penalty (1)
Where a member of the Sen1ice has committed any act or omission which renders him liable to any penalty specified in rule 6-
(a)
(b)if such act or omission was committed after his appointment to the Service –
(i)while he was serving in connection with the affairs of a State, or is deputed for service under any company, association or body of individuals, whether incorporated or not, which is wholly or substantially owned or controlled by the Government of a State, or in a local authority set up by an Act of the Legislature of that State, the Government of that State;"
Learned senior counsel has further contended that the respondents have failed to appreciate that as stated in the provisions of the Rules specifically quoted above, it is discernible that as and when a member of the All India Services commits an act or omission amounting to disciplinary proceedings being initiated against her/him, the Government of the State, where the officer is serving shall be the competent authority to initiate the proceedings and to thereby impose a penalty if required. Rule 7 read in conjunction with Rule 2(e) sets out the position for definition of State Government concerned for the purpose of initiation of departmental action against an officer of Joint Cadre, which means that the Ministry of Home Affairs is not the competent authority to initiate the Action against the Office of AGMUT Cadre, rather it is only the 'Joint Cadre Authority' as established under the rules, to have the jurisdiction to initiate departmental proceedings against the officer.
Shri S.N. Verma, learned counsel appearing for respondent nos.1 and 2, while opposing the instant OA, has submitted that the applicant, an IAS Officer of the AGMUT Cadre of 1994 Batch, was transferred from the Government of NCT of Delhi to the Government of Arunachal Pradesh vide Ministry of Home Affairs Order dated 26.05.2022 and, pursuant thereto, joined the Government of Arunachal Pradesh on 27.06.2022. She was thereafter posted as Principal Secretary (Indigenous Affairs) to the Government of Arunachal Pradesh vide order dated 05.07.2022. Immediately after joining the Government of Arunachal Pradesh, the applicant submitted an application seeking Earned Leave for 79 days from 30.06.2022 to 16.09.2022. However, the said leave application was merely under consideration and was never sanctioned by the Competent Authority. It was specifically communicated by the Government of Arunachal Pradesh to the Ministry of Home Affairs that the Competent Authority had not sanctioned the Earned Leave sought by the applicant and that she was required to remain on duty unless and until the leave was formally sanctioned. In this regard, reliance was placed upon the communication of the Government of Arunachal Pradesh dated 15.12.2022.
Learned counsel has further submitted that, notwithstanding the absence of any order sanctioning the Earned Leave, the applicant did not report for duty. While her application for Earned Leave for 79 days was still under consideration, she submitted an email dated 23.07.2022 seeking permission to undertake an Ex-India visit to the USA for 49 days, from 29.07.2022 to 15.09.2022, which period fell within the period for which she had sought Earned Leave. The Competent Authority, however, did not accord approval for the proposed Ex-India visit. Despite the absence of such approval, the applicant proceeded abroad without obtaining prior permission of the Competent Authority and the applicant continued to remain absent from duty without authorization and that, even after returning from abroad, she again undertook another Ex-India visit without obtaining prior permission from the Competent Authority as required under the applicable provisions of the All India Services (Conduct) Rules and the instructions governing foreign travel by members of the All India Services.
Learned counsel has also submitted that the Government of Arunachal Pradesh had consistently reported the aforesaid facts to the Ministry of Home Affairs and had specifically informed that the applicant had joined on 27.06.2022; that she had sought Earned Leave immediately thereafter; that no leave had been sanctioned by the Competent Authority; that despite the absence of sanctioned leave, she remained away from duty; that she proceeded abroad without obtaining prior approval; and that she remained on unauthorized absence for a considerable period. According to learned counsel, these reports disclosed, prima facie, misconduct on the part of the applicant warranting examination by the disciplinary authority.
Learned counsel has then submitted that the Charge Memorandum dated 27.02.2023 was not issued mechanically. Before initiating disciplinary proceedings, the Ministry of Home Affairs examined the reports received from the Government of Arunachal Pradesh, the leave records, correspondence exchanged with the applicant, records relating to her foreign travel and other connected documents. Thereafter, a Memorandum/Show Cause Notice dated 30.12.2022 was issued to the applicant calling upon her to explain, inter alia, her unauthorized absence from duty, proceeding on a foreign visit without prior approval, violation of the provisions of the All India Services (Conduct) Rules and other acts of misconduct noticed during examination of the records.
Learned counsel has further submitted that the explanation furnished by the applicant in response to the aforesaid Memorandum was duly considered by the Competent Authority along with the entire material available on record. Upon objective consideration of the reports of the Government of Arunachal Pradesh, leave applications, service records, correspondence and the explanation submitted by the applicant, the Competent Authority came to the conclusion that the explanation was not satisfactory and that a prima facie case existed for initiation of major penalty proceedings under the provisions of the Rule 8 of the All India Services (Discipline & Appeal) Rules, 1969. Consequently, the Charge Memorandum dated 27.02.2023 came to be issued. Further, the Charge Memorandum was the culmination of a detailed administrative process and could not, by any stretch of imagination, be termed arbitrary, mechanical or issued without application of mind.
Learned counsel has also submitted that the Charge Memorandum had been issued only after consideration of all relevant material and upon obtaining the approval of the Competent Authority. Further, the allegations contained in the Charge Memorandum disclose grave misconduct warranting a full-fledged departmental inquiry. At the stage of issuance of a Charge Memorandum, the disciplinary authority is required only to satisfy itself regarding the existence of a prima facie case. The truthfulness or otherwise of the allegations is a matter to be established in the departmental inquiry and cannot be adjudicated conclusively at the stage of challenge to the Charge Memorandum.
Learned counsel has further submitted that the applicant had been supplied with the Articles of Charge, Statement of Imputations, list of relied-upon documents and list of witnesses and would have full opportunity in the departmental proceedings to submit her written statement, inspect the documents, engage a Defence Assistant, cross-examine the witnesses, produce defence evidence and advance legal submissions. Thus, no prejudice whatsoever had been caused to the applicant.
Learned counsel has contended that the allegations raised by the applicant involve disputed questions of fact which cannot appropriately be adjudicated without recording evidence. Interference by this Tribunal at this stage would amount to stifling a lawful disciplinary inquiry before the truth of the allegations is examined.
Learned counsel has argued that it is settled law that ordinarily a Charge Memorandum is not liable to be quashed unless it is shown to have been issued without jurisdiction, in violation of statutory provisions or actuated by mala fides. According to learned counsel, none of these circumstances is attracted in the present case. The applicant has failed to demonstrate any procedural illegality, violation of statutory rules or prejudice warranting interference by this Tribunal.
Learned counsel has, therefore, submitted that the instant OA is devoid of merit and deserves to be dismissed, the validity of the Charge Memorandum dated 27.02.2023 deserves to be upheld and the respondents ought to be permitted to continue the disciplinary proceedings in accordance with law.
Shri Alok Kumar appearing for Shri Anil Srivastava, learned counsel for Respondent No. 3, while opposing the instant OA, has raised a preliminary objection that issuance of a notice or Charge Memorandum does not constitute a final order. The Charge Memorandum and the subsequent inquiry are governed by a complete set of rules and instructions, and the applicant would have a fair opportunity to present her case during the departmental proceedings. It is submitted that the scope of judicial review in disciplinary matters is limited and interference is warranted only in cases of violation of principles of natural justice, inconsistency in the decision-making process, or violation of the applicable rules.
Learned counsel further submitted that the applicant, an IAS officer of the 1994 batch of the Joint AGMUT Cadre, was transferred from Delhi to Arunachal Pradesh vide order dated 26.05.2022 and joined the Government of Arunachal Pradesh on 27.06.2022. She was thereafter posted as Principal Secretary (Indigenous Affairs) vide order dated 05.07.2022. Immediately after joining the Government of Arunachal Pradesh, the applicant applied for 79 days’ Earned Leave from 30.06.2022 to 16.09.2022.
Learned counsel has also submitted that the said leave application for 79 days had not been sanctioned by the competent authority due to unavailability of service book/leave account of Rinku Dhugga. The Govt. of NCT, New Delhi was requested to dispatch the same vide letter No. PERS-11011/43/2022/1768 dated 07.07.2022 (Annexure-A). Learned counsel has pointed out that travelling abroad requires prior Ex-India Leave permission from the Competent Authority, for which the applicant did not submit her requisite Ex-India Leave form. Moreover, there was no mention of Ex-India Leave in her initial leave application. In the said “copy of approval of leave application”, the remark “approved” is recommended by the Controlling Officer, who have endorsed the file to the Secretary (Personnel) for obtaining due approval of the competent authority. It cannot be treated as final “approval of the Leave”. As per procedure, the leave applications are firstly examined as per the Service Book/Leave Account and then submitted to the Competent Authority for appropriate decision on personal file of the concerned officer. Thereafter, decision of the Competent Authority, about sanction or denial of the requested leave is communicated to the concerned officer. In present case, on receipt of the Service Book/Leave Account from the Govt. of NCT of Delhi, which was forwarded to Secretary (Personnel) by Dr. Sharath Chauhan, IAS, Prl. Secretary (Finance etc.) vide U.O. Note No. PSF/01/2022-23 dated 06.10.2022 (Annexure B), it was observed that officer didn't have sufficient leave balance in her leave account. The submission of the applicant that she was not communicated regarding her Leave is totally wrong and baseless as the same was conveyed to the applicant vide letter No. PERS-11011/43/2022 dated 1st November 2022 (Annexure C). It is pleaded by the respondent No.3 that this respondent never received any leave availing report from the officer/applicant.
Further, it is submitted that the applicant had applied for 49 days Ex-India Leave w.e.f. 29.07.2022 to 15.09.2022 within the bracket of 79 Days Earned Leave applied earlier. But the Leave could not be granted due to unavailability of Service Book/Leave Account. Also, it is reiterated that Ex-India Leave permission requires the applicant to submit duly filled in and signed Ex-India Leave format for obtaining approval from the Competent Authority, which the applicant did not submit.
Learned counsel has also reiterated that the applicant proceeded on Ex-India Leave for USA w.e.f. 07.08.2022 to 23.04.2023 without the approval of the competent authority. The applicant had applied for 49 days Ex-India Leave w.e.f. 29.07.2022 to 15.09.2022 within the bracket of 79 Days Earned Leave applied earlier. But the leave could not be granted due to unavailability of Service Book/Leave Account. Further, pleaded again that Ex-India Leave permission requires the applicant to submit duly filled in and signed Ex-India Leave format for obtaining approval from the Competent Authority, which the applicant did not submit. Further, respondent no.3 never received any leave availing report from the officer/applicant.
Learned counsel has also submitted that the State Government was anticipating that upon receiving the Leave A/C, the Officer may be granted the leave. But on receipt of her service book it was found that the E/L credit in her Leave Account was insufficient to cover the requested period. The letter was issued because of non-receipt of Joining Report even after the expiry of requested Leave period and not as acknowledgement of grant of leave. (Annexure D). As submitted above, the respondent No.3 never received any leave availing report from the officer/applicant.
Learned counsel has also submitted that the letter15.12. 2022 referred by the applicant only conveys the inability of the State Govt. to sanction the Leave on account of unavailability of Leave Account. It does not implicitly or explicitly imply that the leave had been granted by the competent authority.
Learned counsel has vehemently argued that the leave could not be granted due to unavailability of Service Book/Leave Account and the leave was never granted due to unavailability of Service Book/Leave Account of the applicant nor did the applicant submit her leave availing report.
Learned counsel has also specifically denied that the applicant was not unauthorizedly absent from duty. In fact, the applicant was granted Extraordinary Leave (EOL) with effect from 25.07.2023 to 27.12.2023. However, the period of unauthorized absence was reckoned from 07.08.2022 to 23.04.2023, during which the applicant proceeded on Ex-India Leave without obtaining the requisite prior approval from the competent authority.
Learned counsel has also submitted that State of Arunachal Pradesh vide impugned Order dated 07.02.2023 issued a Memorandum to the applicant as to why disciplinary action should not be recommended against her for her misconduct, i.e. remaining absent from duty without awaiting grant of leave, which amounts to unauthorized absence.
Learned counsel has also submitted that in terms of para 3(c) of the General Conditions for Ex-India Leave contained in DoP&T’s letter dated 05.12.2007, where a member of the Service proceeds abroad without obtaining the necessary cadre clearance, the period of such absence is liable to be treated as dies non, apart from the other consequences under the Service Rules. Further, the DoP&T’s OM dated 27.07.2015 specifically provides that, in respect of an application for leave for going abroad on a private visit, the decision is required to be conveyed to the Government servant within 21 days of receipt of the complete application. Any lacuna in the application is also required to be brought to the notice of the Government servant within one week. Learned counsel contended that, in the event of failure of the Competent Authority to communicate its decision within 21 days, the Government servant may assume that permission has been granted. In the present case, however, the applicant proceeded on Ex-India Leave on 07.08.2022 without waiting even for 21 days and, therefore, violated the extant DoP&T guidelines.
Learned counsel has also contended that, having noticed that the applicant had left the country without prior approval of the Competent Authority, the Ministry of Home Affairs issued a Memorandum/Show Cause Notice dated 30.12.2022, calling upon the applicant to show cause as to why disciplinary proceedings should not be initiated against her for proceeding on Ex-India Leave without prior approval, including treating the period of her foreign visit as dies non in terms of para 3(c) of the General Conditions for Ex-India Leave. Subsequently, vide Memorandum dated 27.02.2023, the respondent Ministry ordered that the entire period of the applicant’s unauthorized Ex-India Leave, from 07.08.2022 till the date of her joining the cadre, be treated as dies non, which period would not count as qualifying service for the purposes of increments, leave or pension. Learned counsel pointed out that such period would neither constitute a break in service nor entail forfeiture of past service and would also not be treated as a penalty under the AIS (D&A) Rules, 1969.
Learned counsel has further submitted that, in view of the aforesaid guidelines, the Ministry of Home Affairs issued the Charge Memorandum dated 27.02.2023 under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969. The Article of Charge alleged, inter alia, that the applicant had travelled abroad without approval of the Competent Authority, despite her Ex-India Leave application not having been approved, and had again left the country on 25.01.2023 without prior intimation and approval. Thus, by such conduct, the applicant had exhibited lack of integrity and devotion to duty and had acted in a manner unbecoming of a Government servant, thereby violating Rule 3 of the All India Services (Conduct) Rules, 1968. In response to the Charge Memorandum, the applicant submitted her statement dated 02.04.2023, inter alia, requesting that her application for Ex-India Leave be formally sanctioned on humanitarian grounds and that the Show Cause Notice dated 30.12.2022 be withdrawn. The Competent Authority, upon consideration, rejected the applicant’s representation as devoid of merit and thereafter appointed the Inquiry Officer and Presenting Officer vide separate orders dated 02.08.2023.
Learned counsel reiterated that on the issue of the applicant’s absence and foreign travel, learned counsel submitted that the Government of Arunachal Pradesh had reported that the applicant had applied for 79 days’ Earned Leave from 30.06.2022 to 16.09.2022, but the same was never approved by the Competent Authority. The applicant thereafter sought Ex-India Leave for 49 days from 29.07.2022 to 15.09.2022, which too was not sanctioned. Despite the absence of approval, she left the country on 07.08.2022 without awaiting the decision of the Competent Authority. Further, it is submitted that neither the Government of Arunachal Pradesh nor the Cadre Controlling Authority had granted cadre clearance to the applicant for proceeding on Ex-India Leave from 29.07.2022 to 15.09.2022. Nevertheless, it came to the notice of the Ministry of Home Affairs that the applicant had proceeded to the USA on 07.08.2022 and again on 25.01.2023 without obtaining prior approval or clearance of the Competent Authority. According to learned counsel, such conduct constituted violation of Rule 3 of the All India Services (Conduct) Rules, 1968. Consequently, the Show Cause Notice dated 30.12.2022 was issued, followed by the Charge Memorandum dated 27.02.2023. The applicant’s representation dated 02.04.2023 against the Charge Memorandum was duly examined by the Ministry of Home Affairs and was rejected by the Competent Authority, having been found devoid of merit.
Learned counsel has also then addressed the applicant’s premature retirement and submitted that a duly constituted Review Committee was convened on 21.03.2023 for intensive review of the service records of IAS/IPS officers of the Joint AGMUT Cadre in terms of Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 and the applicable DoP&T instructions. The Review Committee undertook an objective scrutiny of the applicant’s overall service record spanning more than 29 years, including adverse remarks, repeated instances of proceeding on Ex-India Leave without prior sanction/clearance, non-promotion, non-empanelment with the Government of India and prolonged unauthorized absence from duty. On an overall assessment, the Committee formed the view that the applicant was not fit to continue in Government service. The Review Committee specifically recommended that the pendency of the disciplinary proceedings should not come in the way of prematurely retiring the applicant in public interest and that the disciplinary proceedings could continue even after her premature retirement, with an appropriate penalty, if warranted, being imposed on her terminal benefits. The recommendation for premature retirement under Rule 16(3) was approved by the Competent Authority and forwarded to DoP&T, which, vide order dated 07.08.2023, conveyed approval for the applicant’s premature retirement in public interest with immediate effect by granting three months’ pay and allowances in lieu of notice. The said order was communicated to the applicant vide letter dated 08.08.2023.
Learned counsel emphatically submitted that the applicant was prematurely retired in public interest and compulsorily retired was not as a penalty. He has contended that compulsory retirement is a major penalty under the AIS (D&A) Rules, 1969, which can be imposed by the Disciplinary Authority only after completion of disciplinary proceedings, whereas premature retirement under Rule 16(3) of the AIS (DCRB) Rules, 1958 is an administrative decision taken in public interest and does not amount to a penalty.
On the aforesaid basis, learned counsel for Respondent No. 3 has submitted that the instant OA was devoid of merit and deserved to be dismissed, and that the disciplinary proceedings initiated vide Charge Memorandum dated 27.02.2023 were liable to be permitted to continue in accordance with law.
In rebuttal, learned senior counsel for the applicant by referring to the rejoinder has submitted that Ministry of Home Affairs had, in fact, written on 25.11.2022 seeking information from the Government of Arunachal Pradesh stating that:
“it has come to their notice that immediately after joining in Arunachal Pradesh, Ms. Dhugga proceeded on leave”
The Government of Arunachal Pradesh replied to the above
letter on 02.12.2022, wherein it was clearly stated: “The order for Ex-India leave of the officer was not issued due to non-availability of the service book” (emphasis supplied)
This clearly indicates that the State Government of Arunachal Pradesh, had sanctioned the leave, but the formal order could not be issued due to non-availability of the Service Book of the applicant. This specific fact was duly stated in the report of the Government of Arunachal Pradesh, but was deliberately ignored, and the leave of the applicant was singled out by the respondents for punitive action, in complete disregard of the facts and in defiance of law.
So far as preliminary objection is concerned, the same had been denied and learned senior counsel has further submitted the Competent Authority had approved the Earned Leave application of the applicant. The same is apparent from the leave application appended as Annexure A-5 to the Paper Book at Page 58 of the OA. Since the applicant was required to go abroad, she vide e-mail dated 23.07.2022 sought Earned Leave (Ex-India) from 29.07.2022 to 15.09.2022. As the applicant was serving with the State of Arunachal Pradesh and, in keeping with the mandate of Instruction No. 11019/06/2001-AIS-III issued by the Government of India, Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, New Delhi, dated 05.12.2007, the applicant had complied with all the instructions. It has been stated in the above instructions that:
“(i)Private visits abroad for purely personal reasons ………. Further Delegation: - It has now been decided that approval of the respective Cadre Controlling Authorities of the All India Services will no longer be required in the case of private visits abroad, which are purely personal without any sponsorship and not linked to any official visit, on leave due and admissible, whether casual leave, earned leave, half-pay leave, leave on medical grounds and extraordinary leave. State Governments and Ministries/Departments of the Government of India may sanction such leave, due and admissible, to a member of the Service as per rules.”
Learned senior counsel has also submitted that a bare perusal of the above instruction shows that, in the case of the applicant, it was only the State of Arunachal Pradesh, which had the authority to sanction the leave. It is also apparent that an officer going abroad on a private visit did not require the approval of the Cadre Controlling Authority and the same requirement had been done away with. Further, in Office Memorandum F.No.11013/8/2015-Estt.A-III dated 27.07.2015 issued by the Department of Personnel & Training (Establishment Division), while considering the issue of prior permission for going abroad while on leave, it has been mandated:
“It may be ensured that the decisions are conveyed to the Government servants within 21 days of receipt of complete application to the competent authority. Any lacunae in the application should be brought to the notice of the Government servant within one week of the receipt of the application. In the event of failure on the part of the competent authority to communicate its decision to the Government employee concerned within 21 days of receipt of the application, the employee concerned shall be free to assume that permission has been granted to him.”
As is apparent from the facts stated in the present application, no lacuna in the applications for leave was ever communicated to the applicant; nor was any negative decision communicated to her. Therefore, in keeping with the mandate of the above OM, deemed permission had been granted to the applicant.
Learned senior counsel has further submitted that the fact that all the leaves were in compliance with the applicable norms is further proved by the fact that none of the letters/reports of the Government of Arunachal Pradesh to the Ministry of Home Affiars states that the leave was refused or that any refusal or objection was communicated to the applicant. In fact, the same clearly states that the leaves were granted.
Learned senior counsel has further submitted that an officer going on a private visit did not require any clearance from the Cadre Controlling Authority, as is apparent from Para 2(i) of the above letter. Since no clearance from the Cadre Controlling Authority was required for a private visit abroad of an officer, the provision relating to ‘dies non’ would not be applicable in the present case in any manner.
Learned senior counsel has further submitted that the word used in the above OM is “communicate” and “convey” the decision. In the present case, the leave of the applicant was duly granted and was communicated/conveyed to her by the Competent Authority, i.e. Government of Arunachal Pradesh/Hon’ble Chief Minister of Arunachal Pradesh. Only the formal order could not be passed for want of the Service Book and for no fault of the applicant.
Learned senior counsel has also submitted that the power to decide whether the Ex-India Leave with effect from 07.08.2022 was authorized or otherwise vested with the State Government as per DoP&T’s OM dated 05.12.2007 as well as 27.07.2015. That being the position, the only Competent Authority to decide whether the said Ex-India Leave was unauthorized or not was the State Government of Arunachal Pradesh and not the Ministry of Home Affairs. As a matter of fact, the State of Arunachal Pradesh has not passed any order declaring the said leave as unauthorized. Thus, the impugned order dated 27.02.2023 passed by the Ministry of Home Affairs treating the entire period as unauthorized and ‘dies non’ is without any basis and authority.
Learned senior counsel has also submitted that when the leave was deemed approved, according to the applicant, as per the admission of the Ministry of Home Affairs, till 30.07.2023, the January visit of the applicant was during the leave period and, therefore, required neither intimation nor approval.
Learned senior counsel has reiterated that on 28.06.2022, the applicant met the Hon’ble Chief Minister, took his permission to travel abroad with her son and applied for Earned Leave from 30.06.2022 to 16.09.2022 on account of compelling personal reasons. As stated above, the son of the applicant was not keeping well and, therefore, in order to look after her son, the applicant had applied for leave. It would be pertinent to mention here that the applicant had no reason to presume that there could be any problem with the grant of leave to her, as it was a routine matter and the consent of all authorities had been sought and nothing adverse had been communicated to her. The Competent Authority had approved the Earned Leave application of the applicant.
Learned senior counsel has also submitted that the provision of sub-Rule 6(a) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 will apply in a case where an inquiry was initiated before the superannuation of an officer. The same cannot apply where the services of the officer have been curtailed by invoking the order of compulsory retirement. Thus, the said rule does not come to the rescue of the respondents.
Learned senior counsel has further reiterated that in the case of an Ex-India private visit by an officer, no cadre clearance is required and the alleged period of absence cannot be treated as ‘dies non’ under the DoP&T letter dated 05.12.2007.
Learned senior counsel has also reiterated that the applicant had applied for Earned Leave from 30.06.2022 to 16.09.2022 on account of compelling reasons. At the time of applying and submitting the leave application, the applicant had no reason to presume that there could be any problem with the grant of leave to her, as it was a routine matter, the consent of all authorities had been sought and nothing adverse had been communicated to her. Had the leave not been sanctioned, the same ought to have been communicated to the applicant. However, neither any adverse decision nor rejection of leave was communicated to her. Further, the Government of Arunachal Pradesh, i.e. Respondent No.3, being the competent authority, on 02.12.2022 had sent a reply to the Ministry of Home Affairs, on perusal of which it appeared that the leave had been granted, though a formal order could not be passed for want of the Service Book.
In support of the claim of the applicant, learned senior counsel relied upon the following decisions:-
Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, reported in (1978) 1 SCC 405;
State of Punjab vs. Sardar Prakash Singh Badal, reported in (2001) 1 SCC 330;
Nikhil Kumar vs. UOI and others (OA No.3417/2024) decided on 23.09.2024 by the Principal Bench of this Tribunal;
Pramod Kumar vs UOI and another (OA No.1395/2023) decided on 20.02.2024 by the Principal Bench of this Tribunal;
Subhas Chandra Pandey vs. Govt. of NCT of Delhi and others (OA Nos.1447/2018 and 1527/2018) decided on 20.03.2023 by the Principal Bench of this Tribunal; and
Union of India and others vs. Rinku Dhugga in Writ Petition (Civil) No.17582/2025 decided on 15.04.2026 by the Hon'ble Delhi High Court.
Lastly, learned senior counsel prayed that instant OA be allowed in terms of the prayers made therein.
We have heard learned counsel for the parties and perused the pleadings as well the judgments on which reliance has been placed by the learned counsel for the applicant as well as respondents.
It emerges from the records that the applicant is a 1994-batch IAS officer of the AGMUT Cadre. She was transferred from the Government of NCT of Delhi to the Government of Arunachal Pradesh vide order dated 26.05.2022 and joined the State of Arunachal Pradesh on 27.06.2022. Thereafter, she was posted as Principal Secretary, Indigenous Affairs, vide order dated 05.07.2022. On 28.06.2022, the applicant submitted an application seeking Earned Leave for the period from 30.06.2022 to 16.09.2022. Subsequently, on 23.07.2022, she sought permission for Ex-India leave/private visit to the USA for the period from 29.07.2022 to 15.09.2022. It is not in dispute that the applicant left India on 07.08.2022. The parties, however, are at variance as to whether the leave sought by her had been sanctioned and whether she had obtained the requisite permission for the foreign visit.
The Government of Arunachal Pradesh, i.e., respondent No.3, communicated with the Ministry of Home Affairs in relation to the applicant's absence and her proposed/actual foreign travel. The parties rely upon the correspondence exchanged in this regard, particularly the communications dated 25.11.2022 and 02.12.2022, though they place different interpretations upon the contents thereof. The respondents maintain that the leave had not been sanctioned by the competent authority, whereas the applicant contends that the leave had, in substance, been approved and that only the formal order could not be issued owing to non-availability of her Service Book/Leave Account. 10.2 The applicant returned to India on 01.01.2023, but, according to the respondents, did not report for duty in Arunachal Pradesh and again left India on 25.01.2023 without prior approval. The respondent No.1 and 2 (Ministry of Home Affairs) consequently issued a Memorandum/Show Cause Notice dated 30.12.2022 and, thereafter, Charge Memorandum dated 27.02.2023 under Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969, alleging, inter alia, that the applicant had travelled abroad without approval of the competent authority, remained absent from duty and thereby violated Rule 3 of the All India Services (Conduct) Rules, 1968. The Article of charge levelled against the applicant vide the aforesaid impugned charge Memorandum reads as under:-
“ARTICLE-I
Ms. Rinku Dhugga, IAS while posted with the Government of Arunachal Pradesh committed gross misconduct by traveling abroad without approval of the Competent Authority during August, 2022 to February, 2023. Ms. Dhugga has applied for Ex-India Leave from 29.07.2022 to 15.09.2022 which was not approved by the Competent Authority. However, Ms. Dhugga proceeded unauthorisedly and left the country on 07.08.2022 and returned on 01.01.2023. However, she did not report for duty in Arunachal Pradesh. Thereafter, again she left the country on 25.01.2023 without prior intimation and approval of the Competent Authority.
Ms. Rinku Dhugga, IAS (AGMUT:1994), by her aforesaid act exhibited lack Government servant and thereby violated Rule 3 of All India Services (Conduct) Rules, 1968.
The applicant submitted her statement of defence dated 02.04.2023 disputing the allegations and, inter alia, sought formal sanction of her Ex-India Leave on humanitarian grounds. Her representation was not accepted by the respondents and, vide separate orders dated 02.08.2023, an Inquiry Officer and a Presenting Officer were appointed to conduct the disciplinary inquiry.
It is further an admitted position that the applicant subsequently returned to India on 24.04.2023 and resumed duties as Principal Secretary, Indigenous Affairs, Government of Arunachal Pradesh. Thereafter, her application for Extraordinary Leave for the period from 25.07.2023 to 27.12.2023 was sanctioned vide order dated 13.07.2023. It is also not in dispute that the applicant was prematurely retired from service in public interest under Rule 16(3) of the All India Services (Death-cum-Retirement Benefits) Rules, 1958, with immediate effect, vide order dated 07.08.2023, which was communicated to her on 08.08.2023. The parties, however, differ on the legal effect of such premature retirement upon the disciplinary proceedings already initiated vide Charge Memorandum dated 27.02.2023. The applicant contends that the disciplinary proceedings could not survive her premature retirement, whereas the respondents contend that the proceedings, having been initiated while she was in service, could validly continue in accordance with the applicable rules.
It is also relevant to note that the earlier challenge to the competence of the authority issuing the impugned Charge Memorandum was adjudicated by this Tribunal in favour of the applicant vide order dated 07.05.2025. However, the said finding was subsequently set aside by the Hon'ble Delhi High Court in W.P.(C) No.14025/2025 vide judgment dated 01.04.2026, holding that the initiation of disciplinary proceedings by the Ministry of Home Affairs was not without jurisdiction. The disciplinary proceedings were consequently restored. The Hon'ble High Court thereafter, vide order dated 26.05.2026 passed in W.P.(C) No.6782/2026, remanded the instant matter to this Tribunal for adjudication of all grounds raised by the applicant other than the ground relating to the competence of the authority which issued the Charge Memorandum. Thus, the question of competence of the authority no longer survives for consideration, and the remaining grounds are required to be examined on their respective merits.
At the outset, it is necessary to delineate the scope of judicial review available to this Tribunal at the stage of challenge to an impugned Charge Memorandum. The issue relating to the competence of the authority which initiated the disciplinary proceedings against the applicant has already been conclusively adjudicated by the Hon’ble High Court in W.P.(C) No.14025/2025 and connected matter vide judgment common Order/Judgment dated 01.04.2026. Thereafter, in W.P.(C) No.6782/2026, vide Order/Judgment dated 26.05.2026, the Hon’ble High Court remanded the present OA for consideration of the remaining grounds urged by the applicant. Thus, the question of competence is no longer open for our consideration. The controversy before us is confined to the other grounds raised by the applicant in the instant OA.
Before examining the individual grounds, we may usefully refer to the settled principles laid down by the Hon’ble Supreme Court concerning interference with disciplinary proceedings at the stage of charge-sheet. In Union of India & Ors. v. Upendra Singh, reported in (1994) 3 SCC 357, the Hon’ble Supreme Court has held that the Tribunal or Court can interfere where, on a reading of the charges along with the imputations or particulars, no misconduct or irregularity is disclosed, or where the charges are contrary to law. At the same time, the Hon'ble Supreme Court cautioned that, at that stage, the Tribunal cannot examine the correctness or truth of the allegations, since that is a matter for the disciplinary authority/inquiry officer. The Hon'ble Supreme Court specifically observed that the function of judicial review is to examine the correctness of the decision-making process, and not to undertake a factual adjudication of the charge. The relevant portion of the said judgment is reproduced as under: -
"6.In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v. Gopi Nath & Sons [1992 Supp (2) SCC 312] . The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus: (SCC p. 317, para 8)
“Judicial review, it is trite, is not directed against the decision but is confined to the decision-making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.”"
The same principle was reiterated in Union of India & Anr. v. Kunisetty Satyanarayana, reported in (2006) 12 SCC 28, wherein the Hon’ble Supreme Court observed that ordinarily a charge-sheet or show-cause notice should not be quashed because the delinquent has an opportunity to place his defence before the disciplinary authority. However, the Court expressly recognised an exception in rare and exceptional cases where the charge-sheet is wholly without jurisdiction or is otherwise wholly illegal. The relevant portion of the said judgment reads as under: -
"13.It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327: JT (1995) 8 SC 331], Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440: 2004 SCC (Cri) 826: AIR 2004 SC 1467], Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639], State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179: (1987) 3 ATC 319: AIR 1987 SC 943], etc.
14.The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.
15.Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16.No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
Likewise, in Secretary, Ministry of Defence & Ors. v. Prabhash Chandra Mirdha, reported in (2012) 11 SCC 565, the Hon’ble Supreme Court reiterated that a charge-sheet should not ordinarily be quashed at the threshold, particularly where the employee can raise his objections before the disciplinary authority. The Hon'ble Supreme Court nevertheless recognised the distinction between a legally sustainable charge requiring factual adjudication and a proceeding suffering from a fundamental legal infirmity. The relevant portion of the said judgment is reproduced as under:-
"8.The law does not permit quashing of charge-sheet in a routine manner. In case the delinquent employee has any grievance in respect of the charge-sheet he must raise the issue by filing a representation and wait for the decision of the disciplinary authority thereon. In case the charge-sheet is challenged before a court/tribunal on the ground of delay in initiation of disciplinary proceedings or delay in concluding the proceedings, the court/tribunal may quash the charge-sheet after considering the gravity of the charge and all relevant factors involved in the case weighing all the facts both for and against the delinquent employee and must reach the conclusion which is just and proper in the circumstance. (Vide State of M.P. v. Bani Singh [1990 Supp SCC 738 : 1991 SCC (L&S) 638 : (1991) 16 ATC 514] , State of Punjab v. Chaman Lal Goyal [(1995) 2 SCC 570 : 1995 SCC (L&S) 541 : (1995) 29 ATC 546] , Registrar, Coop. Societies v. Sachindra Nath Pandey [(1995) 3 SCC 134 : 1995 SCC (L&S) 648 : (1995) 29 ATC 538] , Union of India v. Ashok Kacker [1995 Supp (1) SCC 180 : 1995 SCC (L&S) 374 : (1995) 29 ATC 145] , Prohibition & Excise Deptt. v. L. Srinivasan [(1996) 3 SCC 157 : 1996 SCC (L&S) 686 : (1996) 33 ATC 745] , State of A.P. v. N. Radhakishan [(1998) 4 SCC 154 : 1998 SCC (L&S) 1044 : AIR 1998 SC 1833] , Food Corporation of India v. V.P. Bhatia [(1998) 9 SCC 131 : 1998 SCC (L&S) 466] , Supt. of Police v. T. Natarajan [1999 SCC (L&S) 646] , M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919 : AIR 2006 SC 3475] , P.D. Agrawal v. SBI [(2006) 8 SCC 776 : (2007) 1 SCC (L&S) 43] and Govt. of A.P. v. V. Appala Swamy [(2007) 14 SCC 49 : (2009) 1 SCC (L&S) 440] .)
"10.Ordinarily a writ application does not lie against a charge-sheet or show-cause notice for the reason that it does not give rise to any cause of action. It does not amount to an adverse order which affects the right of any party unless the same has been issued by a person having no jurisdiction/competence to do so. A writ lies when some right of a party is infringed. In fact, charge-sheet does not infringe the right of a party. It is only when a final order imposing the punishment or otherwise adversely affecting a party is passed, it may have a grievance and cause of action. Thus, a charge-sheet or show-cause notice in disciplinary proceedings should not ordinarily be quashed by the court. (Vide State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327] , Ulagappa v. Commr. [(2001) 10 SCC 639 : AIR 2000 SC 3603 (2)] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] and Union of India v. Kunisetty Satyanarayana [(2006) 12 SCC 28 : (2007) 2 SCC (L&S) 304] .)
xxx xxx xxx xxx xxx
12.Thus, the law on the issue can be summarised to the effect that the charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the proceedings."
At this stage, we observe that in view of the judgment dated 26.05.2026 passed by the Hon'ble High Court of Delhi in W.P.(C.) No.6782/2026, the question regarding the competence of the authority, which issued the impugned Charge Memorandum dated 27.02.2023 no longer survives for consideration before us. The matter has been remanded to this Tribunal for adjudication of the remaining grounds raised by the applicant on merits.
Having regard to the submissions as noted above and the observations of the Hon'ble Supreme Court in the above noted case, we find that the following issues arise for our consideration in the instant case:
Whether, on a reading of Article-I of the Charge Memorandum dated 27.02.2023 together with the statement of imputations, the material relied upon by the respondents discloses the ingredients of misconduct alleged against the applicant under Rule 3 of the All India Services (Conduct) Rules, 1968?
Whether the respondents have correctly treated the applicant's absence as “unauthorised absence” and, more importantly, whether such alleged unauthorised absence, in the facts and circumstances of the case, can ipso facto constitute wilful absence, failure of devotion to duty or conduct unbecoming of a Government servant?
Whether the admitted and contemporaneous record, particularly the leave application, the request for Ex-India Leave and the communication dated 02.12.2022 of the Government of Arunachal Pradesh, renders the foundation of the charge legally unsustainable at the threshold?
Whether the present case falls within the exceptional category in which interference with a impugned charge memorandum is permissible under the principles laid down by the Hon'ble Supreme Court in Upendra Singh (supra), Kunisetty Satyanarayana (supra) and Prabhash Chandra Mirdha (supra)?
As all these issues are entwined, we proceed to examine these issues together. At the outset, we are conscious of the settled principle that ordinarily a Court or Tribunal should not interfere with a charge-sheet at the threshold. In Kunisetty Satyanarayana, (supra), the Hon'ble Supreme Court held that interference at the stage of charge-sheet is permissible only in rare and exceptional cases, such as where the charge-sheet is wholly without jurisdiction or is otherwise wholly illegal. The same principle was reiterated in Prabhash Chandra Mirdha, (supra). The respondents have accordingly contended that the truth or otherwise of the allegations is a matter for the departmental inquiry and ought not to be examined by this Tribunal at the present stage.
We are equally conscious that this principle does not mean that a charge Memorandum is immune from judicial scrutiny in every circumstance. The governing test, as explained in Upendra Singh (supra), is whether, taking the charge and the imputations at their face value, the alleged misconduct is disclosed. If the facts alleged, even if accepted in their entirety, do not constitute misconduct or the charge is contrary to law, continuation of the disciplinary proceedings would serve no lawful purpose. Therefore, the question before us is not whether the applicant has conclusively established that she was entitled to leave or whether every factual controversy concerning her foreign travel should be finally adjudicated by us. The narrower but fundamental question is whether the material relied upon by the respondents, even if accepted for the present purpose, establishes the legal ingredients of the misconduct with which the applicant has been charged.
The expression “unauthorised absence” cannot be equated mechanically with “wilful absence”. This distinction is of considerable significance in the present case. The Hon'ble Supreme Court in Krushnakant B. Parmar v. Union of India & Anr., (2012) 3 SCC 178, while considering a charge of unauthorised absence founded upon alleged failure of devotion to duty and conduct unbecoming of a Government servant, made the legal position clear. The Hon'ble Supreme Court held that the question whether unauthorised absence amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without examining whether the absence was wilful or was occasioned by compelling circumstances. The Hon'ble Supreme Court further explained that absence without an application or prior permission may amount to unauthorised absence, but it does not invariably follow that such absence is wilful. There may be circumstances, including illness, accident, hospitalisation or other compelling circumstances, which prevent an employee from reporting for duty. In such a situation, absence cannot, without more, be treated as misconduct involving failure of devotion to duty. The Hon'ble Supreme Court specifically held that, in a disciplinary proceeding founded upon unauthorised absence, the disciplinary authority is required to establish that the absence was wilful.
For facility of reference, the relevant portion of the Hon'ble Supreme Court judgment in Krushnakant B. Parmar (supra) is reproduced as under: -
"15.Rules 3(1)(ii) and 3(1)(iii) of the Central Civil Services (Conduct) Rules, 1964, relates to all time maintaining integrity, devotion to duty and to do nothing which is unbecoming of a government servant and reads as follows:
“3.General. - (1) Every government servant shall at all times—
(i)maintain absolute integrity;
(ii)maintain devotion to duty; and
(iii)do nothing which is unbecoming of a government servant.”
16.In the case of the appellant referring to unauthorised absence the disciplinary authority alleged that he failed to maintain devotion to duty and his behaviour was unbecoming of a government servant. The question whether “unauthorised absence from duty” amounts to failure of devotion to duty or behaviour unbecoming of a government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances.
17.If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be wilful. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a government servant.
18.In a departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in the absence of such finding, the absence will not amount to misconduct." (emphasis supplied)
Further, the Hon'ble Supreme Court in State of Punjab v. P.L. Singla, AIR 2009 SC 1149, wherein the Hon'ble Supreme Court explained that unauthorised absence or overstaying leave constitutes an act of indiscipline, but the employer has to consider the explanation furnished by the employee. Where sufficient cause or justification is established, the employer may condone the absence and sanction leave post facto; where the employee fails to furnish a satisfactory explanation, disciplinary action may follow. The Hon'ble Supreme Court further observed that the nature of the penalty depends, inter alia, upon the nature of service, the position held, the period of absence and the cause or explanation for such absence. The relevant extract of the said judgment is reproduced as under: -
"11.Unauthorised absence (or overstaying leave), is an act of indiscipline. Whenever there is an unauthorised absence by an employee, two courses are open to the employer. The first is to condone the unauthorised absence by accepting the explanation and sanctioning leave for the period of the unauthorised absence in which event the misconduct stood condoned. The second is to treat the unauthorised absence as a misconduct, hold an enquiry and impose a punishment for the misconduct. *** *** *** ***
13.We may note here that a request for condoning the absence may be favourably considered where the unauthorised absence is of a few days or a few months and the reason for absence is stated to be the sudden, serious illness or unexpected bereavement in the family. But long unauthorised absences are not usually condoned. In fact in security services where discipline is of utmost importance, even a few days of overstay is viewed very seriously. Be that as it may.
14.Where the employee who is unauthorisedly absent does not report back to duty and offer any satisfactory explanation, or where the explanation offered by the employee is not satisfactory, the employer will take recourse to disciplinary action in regard to the unauthorised absence. Such disciplinary proceedings may lead to imposition of punishment ranging from a major penalty like dismissal or removal from service to a minor penalty like withholding of increments without cumulative effect. The extent of penalty will depend upon the nature of service, the position held by the employee, the period of absence and the cause/explanation for the absence. Where the punishment is either dismissal or removal, it may not be necessary to pass any consequential orders relating to the period of unauthorised absence (unless the rules require otherwise). Where the punishment awarded for the unauthorised absence, does not result in severance of employment and the employee continues in service, it will be necessary to pass some consequential order as to how the period of absence should be accounted for and dealt with in the service record. If the unauthorised absence remains unaccounted it will result in break in service, thereby affecting the seniority, pension, pay, etc. of the employee. Any consequential order directing how the period of absence should be accounted, is an accounting and administrative procedure, which does not affect or supersede the order imposing punishment."
Thus, the correct legal position may be stated in the following terms: Unauthorised absence is essentially an absence without sanctioned leave or permission; wilful absence is a further and distinct conclusion that the employee deliberately remained away from duty without sufficient cause. The former does not automatically establish the latter. This distinction is not merely semantic. Where the charge itself alleges that unauthorised absence constituted “lack of devotion to duty” or “conduct unbecoming of a Government servant”, the element of wilfulness and the circumstances explaining the absence assume legal significance.
We also observe that non-sanction of leave and wilful absence are not synonymous. The non-sanction of leave may establish the factum of unauthorised absence, but does not by itself establish that the absence was deliberate, contumacious or wilful. The disciplinary authority is required to examine the explanation and determine whether the absence was intentional and without justification.
We may now examine Article-I in the light of the aforesaid legal position. Article-I proceeds on the assertion that the applicant applied for Ex-India Leave from 29.07.2022 to 15.09.2022, that the leave was not approved, that she nevertheless left India on 07.08.2022, returned on 01.01.2023, did not report for duty and again left India on 25.01.2023 without prior intimation and approval. On that basis, the charge concludes that the applicant exhibited lack of integrity and devotion to duty and acted in a manner unbecoming of a Government servant, thereby violating Rule 3 of the AIS (Conduct) Rules, 1968. Thus, the foundation of the charge is not merely the fact of travelling outside India. The substantive misconduct alleged is the applicant's alleged unauthorised absence and the consequential inference of lack of integrity, lack of devotion to duty and conduct unbecoming of a Government servant. It is therefore necessary to examine whether the material disclosed in the pleadings supports such an inference in law.
The contemporaneous record assumes significance. The applicant joined the Government of Arunachal Pradesh on 27.06.2022 and, immediately thereafter, submitted an application dated 28.06.2022 seeking Earned Leave from 30.06.2022 to 16.09.2022, as is evident from page 58 of the paper book, which had been approved by the Secretary Personnel (Annexure A5). Subsequently, on 23.07.2022, she sought permission for Ex-India Leave/private visit to the USA for the period from 29.07.2022 to 15.09.2022. It is not disputed that she left India on 07.08.2022. This factual sequence is important because the present case is not one where an employee disappeared from duty without any prior communication or application. The applicant had made a leave application and thereafter specifically sought permission for the foreign visit. The respondents themselves rely upon these applications as the foundation for their case. The respondents contended that the leave application was never sanctioned, that the requisite Ex-India Leave form was not submitted and that the applicant proceeded abroad without awaiting the decision of the competent authority. They further contended that the Service Book/Leave Account subsequently disclosed insufficient leave balance and that this position was communicated to the applicant on 01.11.2022.
At this stage, we also deem it appropriate to state that DoP&T vide communication dated 5.12.2007 (Annexure A8) on the subject to Delegation of powers to the State Governments and Ministries/Departments of the Government of India in cases of members of All India Services proceeding abroad on ex-India leave (excluding study leave) provides as under:-
"(i) Private visits abroad for purely personal reasons
Current Status: - State Governments and Ministries/ Departments of the Government of India have been delegated the power to sanction private visits abroad, which are purely personal, without any sponsorship and not linked to official visit, whether casual leave, earned leave or leave on medical certificate. This delegation does not include private visit on extra ordinary leave and half-pay leave (Reference C D).
Further Delegation: - It has now been decided that approval of the respective Cadre Controlling Authorities of the All India Services will no longer be required in the case of private visits abroad, which are purely personal without any sponsorship and not linked to any official visit, on leave due and admissible, whether casual leave, earned leave, half-pay leave, leave on medical grounds and extra ordinary leave. State Governments and Ministries/Departments of the Government of India may sanction such leave, due and admissible, to a member of the Service as per rules." (emphasis supplied)
It is also relevant to note that, vide communication dated 01.11.2022 addressed to the applicant by Respondent No.3, i.e., the Government of the State of Arunachal Pradesh, it was specifically acknowledged that, pursuant to the applicant’s application dated 28.06.2022, earned leave for a period of 79 days, i.e., from 30.06.2022 to 16.09.2022, had been sanctioned. The said period of leave thus remained valid up to and inclusive of 16.09.2022. Consequently, the period from 29.07.2022 to 15.09.2022, which has been alleged in the impugned Charge Memorandum as a period of unauthorised absence, falls squarely within the period for which the applicant had already been granted earned leave. Therefore, the very foundation of the charge alleging unauthorised absence during the aforesaid period appears to be factually inconsistent with the respondent department’s own communication and the leave sanctioned in favour of the applicant. In such circumstances, the allegation of unauthorised absence for the period from 29.07.2022 to 15.09.2022 cannot, on the face of the record, be sustained merely by describing the said period as unauthorised absence in the Charge Memorandum.
We do not, at this stage, proceed on the premise that the applicant had obtained a formal written sanction of Ex-India Leave. That question may involve interpretation of the correspondence and documents. However, even assuming the respondents' version to be correct, the legal consequence of absence of formal sanction is only that the absence may be characterised as unauthorised. It does not automatically establish the additional ingredient of wilfulness necessary to sustain the charge of failure of devotion to duty or conduct unbecoming of a Govt. servant.
There is, moreover, a material circumstance which cannot be brushed aside at the threshold. The Government of Arunachal Pradesh, i.e., Respondent No.3, vide communication dated 02.12.2022 (Annexure A14 at pages 76 to 77) addressed to the Ministry of Home Affairs, stated:
“The order for Ex-India leave of the officer was not issued due to non-availability of the service book.”
The applicant relies upon this communication to contend that the leave had, in substance, been approved but the formal order could not be issued for want of the Service Book. However, the respondents place a different interpretation upon the same correspondence and contend that it merely conveyed the inability to sanction leave because of the non-availability of the Service Book, rather than constituting an approval. We do not consider it necessary to finally pronounce upon the rival interpretation of this communication for purposes of the present Order. What is material is that the applicant's assertion that she proceeded on leave in the bona fide belief that the necessary approval had been or was in the process of being accorded cannot be said to be a wholly invented defence unsupported by the official record. The contemporaneous correspondence itself furnishes the factual basis for such an explanation. Consequently, the case cannot be treated on the same footing as one involving an employee, who deliberately absented herself from duty without making any application, without communicating with the employer and without furnishing any explanation whatsoever.
The respondents submit that the applicant left India on 07.08.2022 despite the absence of formal approval and again left India on 25.01.2023 after returning to India on 01.01.2023. They contend that these facts disclose deliberate disregard of the requirement of prior approval. We appreciate the force of the respondents' submission that proceeding on foreign travel without the requisite permission may constitute an administrative irregularity and may, in an appropriate case, amount to misconduct. The Hon'ble Supreme Court itself has recognised that unauthorised absence can constitute an act of indiscipline and can attract disciplinary proceedings. P.L. Singla (supra) makes this position clear. But that proposition does not answer the precise issue before us. The question is whether the alleged absence, on the material disclosed in the present case, necessarily establishes wilful absence and thereby supports the further allegations of lack of devotion to duty, lack of integrity and conduct unbecoming of a Government servant. In our considered view, it does not.
The applicant admittedly had made a leave application before proceeding abroad; she subsequently made a specific request for Ex-India Leave; there was official correspondence concerning her leave; the Government of Arunachal Pradesh itself communicated with the Ministry of Home Affairs regarding the position; and the applicant's case was that the formal order could not be issued because the Service Book was not available. These circumstances may require examination in a disciplinary proceeding if a legally sustainable charge exists, but they materially negative the proposition that the charge, on its face, discloses a deliberate abandonment of duty.
More importantly, the respondents have proceeded from the proposition that absence without prior approval = wilful absence = lack of devotion to duty. The law declared by the Hon'ble Supreme Court does not permit such an automatic equation. At this stage, we also deem it appropriate to refer to the communication dated 15.12.2022 of Respondent No.3 (Govt. of Arunachal Pradesh) (Annexure A15 at page 78) addressed to the Ministry of Home Affairs in which it is stated that "the said application of 04.11.2022 is currently under process for consideration of the state government."
In Krushnakant B. Parmar (supra), the Hon'ble Supreme Court specifically held that absence without application or prior permission may amount to unauthorised absence, but it does not always mean wilful absence. The disciplinary authority must examine whether the absence was wilful and, in the absence of such a finding, the absence cannot be treated as misconduct of failure of devotion to duty or behaviour unbecoming of a Government servant.
We have also considered the respondents' contention concerning the applicant's return to India on 01.01.2023 and her alleged failure to report for duty before leaving India again on 25.01.2023. This circumstance is specifically incorporated in Article-I. The existence of this allegation undoubtedly makes the respondents' case more serious than a simple case of overstaying sanctioned leave. However, even this allegation has to be examined in the context of the foundational dispute regarding the applicant's leave status and her explanation. The impugned Charge Memorandum itself treats the entire episode as one continuous course of alleged unauthorised foreign travel and absence. The applicant, on the other hand, disputed the characterisation of her absence and sought formal sanction of the Ex-India Leave on humanitarian grounds. The material before us, therefore, does not disclose a case in which the applicant accepted that she had no leave whatsoever and consciously decided to remain away from duty in defiance of a clear order requiring her immediate return. Rather, there was an unresolved controversy regarding the status of the leave, the foreign-travel permission and the consequences flowing from the absence of the Service Book/Leave Account.
In these circumstances, the respondents could not, without addressing the applicant's explanation in accordance with the governing legal test, elevate the alleged absence into the graver charge of lack of integrity and failure of devotion to duty. Rule 3 of the AIS (Conduct) Rules undoubtedly imposes a high standard of conduct upon members of the All India Services. However, an allegation of violation of Rule 3 of the Rules ibid cannot be sustained merely by repeating the statutory expressions “lack of integrity”, “lack of devotion to duty” or “conduct unbecoming of a Government servant”. The factual foundation must disclose conduct, which legally answers that description.
In the present case, the factual substratum of Article-I of the impugned Charge Memorandum is essentially the alleged absence from duty and travel abroad without prior formal approval. The respondents have not pointed to any allegation of corruption, dishonesty, misappropriation, falsification, misuse of office or any other conduct intrinsically involving lack of integrity. The allegation of “lack of integrity” is essentially consequential upon the alleged absence and foreign travel. Once the Hon'ble Supreme Court's distinction between unauthorised and wilful absence is applied, the mere absence of formal leave sanction cannot, by itself, sustain the consequential finding of lack of integrity or lack of devotion to duty.
The principle enunciated by the Constitution Bench of the Hon'ble Supreme Court in Mohinder Singh Gill & Anr. v. Chief Election Commissioner & Ors., reported in (1978) 1 SCC 405, is that when a statutory or administrative authority passes an order on certain stated grounds, the validity of such order has to be tested with reference to the reasons contained therein. The authority cannot subsequently supplement or improve the impugned order by introducing fresh reasons through an affidavit, counter-affidavit or otherwise. The rationale underlying the principle is that an order, which is invalid at the inception cannot be permitted to acquire validity during the course of judicial proceedings by the introduction of additional grounds. Consequently, the Courts/Tribunal while exercising judicial review has to examine the legality of the decision on the basis of the reasons, which actually formed the foundation of the decision at the time when it was taken.
In our considered view, the charge therefore suffers from a fundamental legal infirmity: the factual allegation pleaded by the respondents does not, even if accepted in its entirety, automatically establish the misconduct, which the charge asserts.
The respondents have relied upon the DoP&T's communication dated 05.12.2007 and OM dated 27.07.2015. According to the respondents, an officer proceeding abroad on private visit is required to obtain the prescribed approval/clearance and the decision on a complete application is to be communicated within the stipulated period. The respondents specifically contend that the applicant left India on 07.08.2022 without waiting for the prescribed period of 21 days. The applicant, on the other hand, relies upon the same administrative framework to contend that the Government of Arunachal Pradesh was the relevant sanctioning authority and that the failure to communicate a decision within the stipulated period had legal consequences.
We need not determine every disputed question concerning the precise applicability or operation of the aforesaid instructions for the simple reason that even assuming that the applicant was required to await formal permission, breach of that procedural requirement cannot, without a further finding of wilfulness and culpability, automatically establish the graver misconduct alleged in Article-I. Administrative instructions regulating foreign travel may prescribe the procedure which an officer must follow. They cannot, however, override the substantive requirement laid down by the Hon'ble Supreme Court that, where unauthorised absence is sought to be converted into failure of devotion to duty or conduct unbecoming, the question whether the absence was wilful has to be addressed.
We are conscious that the respondents' reliance upon Kunisetty Satyanarayana (supra) and Prabhash Chandra Mirdha (supra) is not without basis. Ordinarily, a charge memorandum should be permitted to run its course and the delinquent employee should place her defence before the Inquiry Officer. However, this is not a case where the applicant merely seeks an adjudication of disputed evidence at the stage of charge-sheet. The question is whether the very facts relied upon by the respondents disclose the misconduct alleged. The judgment of the Hon'ble Supreme Court in the case of Upendra Singh (supra) permits judicial scrutiny where the charge, read with the imputations, does not disclose any misconduct or is contrary to law. Conversely, Kunisetty Satyanarayana (supra) recognises that an otherwise legally sustainable charge should ordinarily not be quashed merely because the employee disputes the facts. The present case falls within the former principle because the principal allegation of unauthorised absence has been treated by the respondents as conclusive proof of wilfulness and failure of devotion to duty, contrary to the legal distinction laid down by the Hon'ble Supreme Court in Krushnakant B. Parmar (supra).
The issue, therefore, is not whether the applicant should be believed in preference to the respondents. The issue is whether the respondents can lawfully proceed upon the assumption that non-sanction of leave necessarily establishes wilful absence. In view of the binding principle laid down by the Hon'ble Supreme Court, as noted above, the answer must be in the negative.
There is another aspect, which reinforces our conclusion. The respondents themselves acknowledge that the applicant had submitted the leave application and thereafter the Ex-India Leave request. Their case is not that she disappeared without any intimation whatsoever. Their case is that she travelled before formal approval was communicated. Further, the respondents rely upon the official correspondence exchanged with the Government of Arunachal Pradesh, including the communication concerning the non-availability of the Service Book/Leave Account. Thus, the record itself establishes that the leave issue was not a simple case of unexplained desertion from duty. The existence of an unresolved administrative controversy regarding sanction of leave may justify an administrative decision as to how the period is to be regularised or treated for service purposes. Indeed, the Hon'ble Supreme Court in P.L. Singla (supra) recognised that the employer may either condone the absence by sanctioning leave or treat it as misconduct after considering the explanation. But an administrative determination that a period is “unauthorised” or is to be treated as dies non is not, by itself, equivalent to a finding that the employee committed wilful misconduct involving lack of devotion to duty. The two consequences operate in different fields.
On an overall consideration of the rival submissions, the material placed before us and the law declared by the Hon'ble Supreme Court, we are of the considered view that the impugned Charge Memorandum cannot be sustained. We reiterate that we are not holding that an IAS officer is entitled to proceed abroad without obtaining the requisite permission. Nor do we hold that unauthorised absence can never constitute misconduct. The law is clear that unauthorised absence may constitute an act of indiscipline and may justify disciplinary action depending upon the circumstances. What the law does not permit is to treat the mere fact of non-sanction of leave as conclusive proof of wilful absence and thereafter, without examining the explanation and surrounding circumstances, to infer lack of devotion to duty and conduct unbecoming of a Government servant. The judgment of the Hon'ble Supreme Court in Krushnakant B. Parmar (supra) is categorical on this aspect.
In the present case, the applicant had applied for leave; had specifically sought Ex-India Leave; the State Government was in correspondence with the Ministry of Home Affairs regarding her absence; the applicant disputed from the inception that her travel was unauthorised; and the record contains the communication dated 02.12.2022 stating that the order for Ex-India Leave was not issued owing to non-availability of the Service Book. These circumstances may give rise to an administrative dispute regarding regularisation of leave. They do not, without a legally sustainable finding of wilfulness, disclose the graver misconduct of lack of integrity, lack of devotion to duty or conduct unbecoming alleged in Article-I. We are, therefore, satisfied that the present case falls within the exceptional category recognised in Upendra Singh (supra), Kunisetty Satyanarayana (supra) and Prabhash Chandra Mirdha (supra), where continuation of a disciplinary proceeding would be legally unsustainable because the charge, on the material relied upon by the respondents themselves, does not disclose the misconduct alleged in the manner required by law.
In the result, for the foregoing reasons, the Original Application deserves to be allowed in the following terms: -
The impugned Charge Memorandum dated 27.02.2023 (Annexure A1) issued against the applicant together with the consequential disciplinary proceedings arising therefrom, is quashed and set aside;
Consequently, the respondents shall treat the disciplinary proceedings initiated pursuant to the aforesaid Charge Memorandum as closed. Any consequential action taken solely on the basis of the said disciplinary proceedings shall also stand rendered ineffective;
It is clarified that we have not expressed any opinion on the administrative treatment/regularisation of the period of absence, including any question relating to leave, except to the extent necessary for examining the sustainability of the impugned disciplinary charge; and
The consequential order(s) shall be issued by the respondents within four weeks of receipt of a copy of this Order.
In the facts and circumstances of the case, there shall be no order as to costs.
Pending MA(s), if any, shall stand disposed of accordingly.