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Judgment
ORDER
Hon’ble Dr. Anand S. Khati, Member (A)
In the present Original Application (O.A.) filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought for the following reliefs:-
"(a)This Hon’ble Tribunal may be pleased to allow the OA and quash and set aside Charge Sheet dated 21st May 2020, Inquiry Report dated 24th December 2021, UPSC advice dated 9th December 2022 and Dismissal Order dated 7th March 2023.
(b)Direct reinstatement of the applicant in service with all consequential benefits.
(c)Award costs in applicant’s favour.”
The brief facts of the case as narrated by learned counsel for the applicant are that:
The applicant joined Central Govt. service on 18.12.1987. On 25.07.1994, the applicant was posted in the Ministry of External Affairs as Stenographer and subsequently, he was promoted as PA in 1998. Upon qualifying the UPSC Section Officers Examination, he was promoted as S.O. in March 2006, and on 29.11.2012, he was promoted as Under Secretary (Grade I of IFS-B) in the same Ministry. The applicant was posted in the Embassy of India, Vientiane, Laos on 07.08.2017 and completed about 30 years of service in April, 2018.
In July-August 2018, the Ambassador went on Ex-India leave to USA for 46 days and due to administrative reasons, the applicant did not process the salary of the Ambassador. In October 2018, the Ambassador complained against the applicant to the Ministry for non-payment of salary. The Ambassador issued memo to the applicant alleging irregularities and requested the Ministry to recall the applicant as he did not purchase alcoholic drinks for Ambassador from special grant. In August 2019, a Vigilance memo was issued to the applicant and he was recalled to headquarters at Delhi. Thereafter, a charge memorandum dated 21.05.2020 was issued to the applicant, to which the applicant submitted his reply dated 22.06.2020. Disciplinary proceedings were held against him and the Inquiry Officer (IO) submitted its report on 24.12.2021.
The applicant preferred representation against the findings of the IO on 14.12.2022. The UPSC furnished its advice to the MEA on 09.12.2022 recommending dismissal from service. The applicant made several requests for personal hearing against the UPSC advice to the Foreign Secretary (MEA) and Hon’ble External Affairs Ministry, but to no avail.
Vide order dated 07.03.2023, the applicant was dismissed from service. Revision/review preferred by the applicant was also dismissed in March, 2023.
Learned counsel for the applicant argued that the entire disciplinary proceedings culminating in the dismissal of the applicant are vitiated on account of serious procedural and legal infirmities. It is contended that the charge-sheet dated 21.05.2020 was not approved by the competent Disciplinary Authority. The approval obtained for initiation of major penalty proceedings could not, in law, be treated as approval of the charge memorandum itself. It has been admitted by the respondents in para 5A of reply which states “While obtaining approval for initiating major penalty, the draft charge sheet was also placed for approval of D.A.” which means it has been done simultaneously, which is illegal in view of the law laid down by the Supreme Court in Union of India & Ors. vs B.V Gopinath, JT 2013 (12) SC 392 (paras 40,42, 45 and 46), and in Sunny Abraham vs Union of India & Anr., (2021) 20 SCC 12 (para 15). Reference was also made to paragraph 5A of the rejoinder.
It is further contended that all the approvals, including the dismissal order dated 07.03.2023, were granted by the Minister of State and not by the Union Minister/Minister-in-Charge of the Ministry of External Affairs, contrary to Rule 3 of the Government of India (Transaction of Business) Rules. Reliance has been placed upon Municipal Corporation of Delhi vs Ram Pratap Singh, (1976) 4 SCC 828 (para 2) and DoP&T OM No. 134/1/81-AVC-I dated 13.07.1981 (para 3) to contend that the proceedings consequently stand vitiated.
He also assailed the Inquiry Report as being unreasoned and unsupported by the evidence adduced during the regular inquiry. It is submitted that the Inquiry Officer relied upon material which had never been proved or brought on record during the regular inquiry. In particular, the alleged audio recording made by Ms. Oliny, PW, was admittedly never played during the regular inquiry, despite the same being relied upon against the applicant. The applicant contended that the statements recorded during the preliminary inquiry/investigation could not have been relied upon in the absence of their proper proof and examination of the concerned witnesses in decision in A.L. Kalra vs Project and Equipment Corporation of India Ltd., (1984) 3 SCC 316 (para 28), and Anil Kumar vs Presiding Officer & Ors., 1985 (3) SLR 26 (paras 5 and 6).
He further argued that the Inquiry Officer failed to discuss the charges, analyse the evidence or assign reasons for recording findings of guilt. There was, according to the applicant, no proper assessment of the written statements of the PWs and the applicant recorded during the preliminary inquiry/ investigation, nor of their examination and cross-examination during the regular inquiry, or of the applicant’s Written Statement of Defence. The findings were thus alleged to be conclusions unsupported by proper appreciation of evidence.
The applicant also contended that extraneous and irrelevant material was taken into consideration by the Disciplinary Authority while determining the penalty. Particular reference was made to the reliance placed upon the applicant’s average ACRs and allegations of alleged sexual misconduct, neither of which formed part of the charges in the present disciplinary proceedings. Reliance has been placed upon DoP&T OM No. 134/20/68-AVD dated 28.08.1968 (paras 2 and 3) and the judgment of the Hon’ble Supreme Court in Indu Bhushan Dwivedi vs State of Jharkhand & Anr., Civil Appeal No. 4888/2010, decided on 05.07.2010 (particularly paras
He also submitted that the inquiry was further vitiated because material evidence was collected and relied upon behind the back of the applicant, including statements recorded during the preliminary investigation and the mobile/audio recording. The applicant also alleged that the Inquiry Officer relied upon his personal knowledge instead of confining himself to the evidence brought on record. Such a procedure, according to the applicant, violated the principles of natural justice and the settled requirement that findings in a disciplinary inquiry must be based upon evidence and supported by reasons. In this regard, he placed reliance upon the decision in Sher Bahadur vs Union of India & Ors., (2002) 7 SCC 142 (para 7).
Learned counsel further submitted that the appointment of the Inquiry Officer itself was illegal. The first Inquiry Officer was appointed on 10.11.2020 by the President, whereas the subsequent Inquiry Officer was appointed on 29.12.2020 by the Joint Secretary/CVO. According to the applicant, the Inquiry Officer could be appointed only by the Disciplinary Authority. In support of his contention, he also relied upon para 42 of B.V. Gopinath (supra). However, the respondents had incorrectly stated in para 3 of their preliminary submissions that the second Inquiry Officer had been appointed by the Disciplinary Authority.
He further contended that the CVC procedure had been followed in an impermissible manner. According to him, the matter was referred to the CVC for first-stage advice on 27.01.2020, and the CVC tendered its advice only on 06.05.2020 recommending initiation of major penalty proceedings. However, the respondents had already obtained approval for the charge-sheet from the State Minister and had proceeded to initiate the disciplinary process before obtaining such advice. It is argued that, under DoP&T OM dated 29.11.2012 (Annexure-13), particularly para 5, after receipt of the CVC’s first-stage advice, the matter was required to be placed before the Disciplinary Authority for taking a decision regarding initiation of disciplinary proceedings. The applicant, therefore, alleged that the respondents had pre-judged the matter and that the subsequent receipt of CVC advice was reduced to a mere formality.
He also submitted that there was inordinate and unexplained delay in completion of the disciplinary proceedings. The investigation was conducted in August 2019, the charge-sheet was issued on 21.05.2020 and the dismissal order was ultimately passed on 07.03.2023, thereby taking approximately three years. Reliance has been placed upon the decision of Apex Court in P.N. Bali vs Registrar, High Court of Delhi & Anr. in Civil Appeal No. 958/2010, decided on 16.12.2015 (specifically para 33) and CVC Circular No. 02/01/2016 dated 18.01.2016, to contend that prescribed period.
He further submitted that the respondents failed to apply their mind to the UPSC advice and mechanically accepted the recommendations of the Commission while passing the dismissal order. Such mechanical acceptance, according to the applicant, amounted to non-application of mind and rendered the final order unsustainable.
He also contended that the respondents had delayed the reference to the CVC beyond the period prescribed under DoP&T instructions vide OM dated 29.11.2012, para-IV of which lays down that the case has to be referred to CVC for first stage advice within one month from the date of receipt of investigating report. In the present case, the investigation was completed in August 2019, whereas the reference for first-stage advice was made only in January 2020. Similarly, relying upon CVC OM No. 000/VGL/18 dated 23.05.2000 (para 7), the applicant submitted that the charge-sheet ought to have been issued within two months from the date of receipt of the investigation report. In the present case, the investigation was conducted in August 2019, whereas the charge-sheet was issued only on 21.05.2020.
Finally, learned counsel submitted that the penalty of dismissal from service was grossly disproportionate to the alleged Central Administrative Tribunalmisconduct, particularly considering that the applicant had rendered more than 35 years of service under the Central Government and had an otherwise satisfactory service record. He argued that the extreme penalty of dismissal resulted in wiping out the applicant’s long years of service and was wholly disproportionate to the nature of the allegations. On the aforesaid grounds, he prayed that the O.A. deserves to be allowed.
Per contra, learned counsel for respondent No.1 submitted that the disciplinary proceedings against the applicant were initiated pursuant to a complaint regarding corrupt practices during his posting as Head of Chancery, Embassy of India, Vientiane. A Preliminary Enquiry and subsequent Inspection Team visit were conducted, following which major penalty proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were initiated vide memorandum dated 21.05.2020 containing eight Articles of Charge.
The charge memorandum was issued after obtaining due approval of the competent Disciplinary Authority, i.e. Hon’ble Minister of State for External Affairs, and after obtaining the requisite first-stage advice of the CVC. The CVC vide office memorandum dated 06.05.2020 advised initiation of major penalty proceedings. Neither the CVC nor the UPSC found any infirmity in the framing of the charges or the approval thereof.
The applicant was afforded adequate opportunity of defence. He was supplied the relied-upon documents, was permitted inspection thereof, participated in the regular inquiry, cross-examined the prosecution witnesses and was given an opportunity to lead defence evidence. The applicant also appeared as his own witness. Thus, the principles of natural justice and the prescribed procedure were duly complied with. The allegation that the inquiry was conducted behind his back is therefore unsupported by the record.
After an exhaustive inquiry, the Inquiry Authority held Articles I, II, V, VI and VII as ‘proved’ and Articles III, IV and VIII as ‘not proved’. The findings were based on oral and documentary evidence, including statements of witnesses, audio recording, official records/logbooks and corroborative findings of the Inspection Team. The preliminary inquiry statements were also duly confirmed by the concerned witnesses during the regular inquiry.
It is also pointed out that upon consideration of the applicant’s representation, the Disciplinary Authority independently examined the matter and dropped Article IV also and, consequently, only Articles I, II, V, VI and VII remained ‘proved’. This itself demonstrates that the Disciplinary Authority did not mechanically accept the Inquiry Report.
The findings on the surviving Articles of Charge were based on evidence adduced during the regular inquiry. The witnesses whose statements had been recorded during the Preliminary Enquiry appeared during the regular inquiry and confirmed their earlier statements. The applicant was thus not prejudiced by reliance upon the preliminary statements.
The finding relating to the conveyance claims was supported, inter alia, by the deposition of Ms. Oliny Inthavong, who confirmed that she had travelled with the applicant in the staff car on 23rd and 24th July, 2018 and that the applicant asked her to submit a false claim. The relevant logbook entry was also considered by the Inquiry Authority. The applicant did not challenge the validity of the said logbook during the inquiry.
Likewise, the audio recording relied upon in the proceedings was not considered behind the applicant’s back. Ms. Oliny Inthavong appeared during the regular inquiry and confirmed that she had made the recording for her self-protection. The applicant had also admitted before the Inspection Team that the voice in the recording was indeed his.
The allegation that the Inquiry Authority relied upon material without considering the applicant’s defence is also incorrect. The Inquiry Report was prepared in accordance with Rule 14(23)(i) of the CCS (CCA) Rules, 1965 and contained the charges, the applicant’s defence, assessment of evidence and findings with reasons.
It is further submitted that there was no undue or unexplained delay in the proceedings. Necessary extensions were duly obtained during the inquiry in accordance with the applicable rules, including on account of pandemic-related constraints and the unavailability of persons connected with the proceedings. The applicant has, in any event, failed to establish any specific prejudice caused to him by the time taken in completion of the proceedings.
After receipt of the Inquiry Report, the applicant submitted his representation, which was duly considered by the Disciplinary Authority. The matter was thereafter referred to UPSC for advice on the quantum of penalty. UPSC examined the record and advised dismissal from service, observing that the proved misconduct was grave.
The applicant was furnished the UPSC advice and was afforded an opportunity to represent against the same. His representation was considered by the Disciplinary Authority, which found no new material warranting reconsideration and thereafter passed the final order dated 07.03.2023 imposing the penalty of ‘dismissal from service’.
He further submitted that the penalty cannot be said to be disproportionate. Rule 3 (1) (i), (iii), (vi), (ix), (xv), (xviii), (xxi) of CCS (Conduct) Rules, 1964 mandates integrity, devotion to duty and conduct befitting a Government servant. The charges against the applicant ultimately proved concern serious misconduct involving, inter alia, false/inflated conveyance claims, demand of monetary benefits, false Representational Grant claims and destruction of official RG records. The UPSC, upon examination of the entire record, considered the misconduct grave and recommended dismissal. The penalty of dismissal is, therefore, commensurate with the gravity of the charges proved.
The applicant’s reliance upon his past service record does not detract from the findings in the present disciplinary proceedings. The Disciplinary Authority considered the applicant’s representation and the relevant material before accepting the UPSC advice.
It is well settled that the scope of judicial review in disciplinary matters is limited. The Tribunal does not sit as an appellate authority to re-appreciate the evidence. Interference is warranted only where the proceedings suffer from violation of natural justice or statutory rules, or where the findings are perverse or based on no evidence. In the present case, the findings are supported by cogent and corroborative evidence and no procedural violation or prejudice has been established by the applicant.
The disciplinary proceedings were thus conducted in accordance with the prescribed procedure; the applicant was afforded reasonable opportunity of defence; the findings are supported by evidence on record; the Disciplinary Authority Central Administrative Tribunalindependently considered the matter; and the penalty was imposed after consideration of the UPSC advice.
Further, in order to clarify the issue related to Disciplinary Authority in case of the applicant, the respondent No.1 filed an additional affidavit submitting that in case of Group ‘A’ officers upto Deputy Secretary level, Hon’ble Minister of State (MOS) for External Affairs is the Disciplinary Authority. Accordingly, in the case of applicant, the then Under Secretary also, MOS was the Disciplinary Authority. He further submitted that this is based on the booklet namely, "Channel of Submission and Level of Final Disposal of Cases in the Ministry of External Affairs", a copy of the relevant portion was already placed on record.
It is further submitted that the aforesaid booklet has been followed uniformly throughout the Ministry of External Affairs for several years. The booklet was vetted at various levels and published after obtaining approval of the competent authority. Although the specific order pursuant to which the booklet was published is presently not readily traceable in the available records, the guidelines contained therein have consistently been followed across the Ministry and are understood to have the approval of the competent authorities.
It is, accordingly, submitted that the O.A. is devoid of merit and deserves to be dismissed, and the order dated 07.03.2023 imposing the penalty of dismissal from service deserves to be upheld.
On the other hand, learned counsel appearing for the respondent No.2 – UPSC submitted that the Commission is only an advisory body, and its advice in disciplinary matters is tendered in accordance with Article 320(3)(c) of the Constitution read with Regulation 5(1) of the UPSC (Exemption from Consultation) Regulations, 1958. The final decision, however, rests with the Disciplinary Authority, which is required to take its own decision after considering the advice of the Commission along with other relevant material.
He further submitted that the disciplinary case of the applicant was received by the Commission from the Ministry of External Affairs on 09.05.2022 for advice. The case was initially returned on account of certain documentary deficiencies and was thereafter resubmitted after rectification of the deficiencies. Upon examination of the complete record and relevant material, the Commission, vide its advice dated 09.12.2022, advised imposition of the penalty of “dismissal from service, ordinarily carrying disqualification for future employment under the Goverment”. Thereafter, upon considering the UPSC advice as well as the Central Administrative Tribunalapplicant’s representation, the Disciplinary Authority independently imposed the same penalty vide order dated 07.03.2023.
Respondent No. 2 denied the applicant’s allegations concerning the illegality of the disciplinary proceedings insofar as they related to the UPSC. It was submitted that the applicant had made general allegations without supporting material, whereas the Commission had examined the disciplinary case on the basis of the complete records placed before it. Out of the 8 Articles of Charge, Articles I, II, IV, V, VI and VII were held as ‘proved’ by the Inquiry Officer, while Articles III and VIII were held ‘not proved’. The Disciplinary Authority, after considering the applicant’s representation against the Inquiry Report, had also dropped Article IV of the charge.
He further submitted that the Commission had considered the relevant documents and details made available by the Administrative Ministry, including the Inquiry Report, and had thereafter tendered its advice. The Commission maintained that its advice was self-contained, self-explanatory and well-reasoned, and that detailed reasons had been recorded in support of the conclusion regarding the proved charges and the penalty proposed. Accordingly, the applicant’s challenge to the UPSC advice is stated to be devoid of merit.
He further contended that the Disciplinary Authority had not mechanically accepted the UPSC advice but had taken its own independent decision after considering the advice along with the other relevant facts and the applicant’s representation. The Commission also submitted that, being merely an advisory body, it had no role in the actual imposition of penalty or in granting any relief to the applicant.
It was also submitted that the applicant’s representations addressed directly to the President of India, DoPT and CVC, with copies endorsed to UPSC, were not liable to be entertained by the Commission as, in accordance with its practice, UPSC does not take cognizance of or respond to direct representations made by charged officers/individuals in such matters. Accordingly, it is prayed that the O.A. be dismissed insofar as the UPSC is concerned, as no illegality or infirmity was attributable to the Commission or its advice dated 09.12.2022.
Heard the learned counsel for both sides at length and also gone through the pleadings/ written synopsis/ judgments placed on record, as well as the original file containing the decision-making process placed on record by the learned counsel for respondent No.1.
7. ANALYSIS
The principal issue which arises for determination is whether, for the purpose of the initiation and the culmination of departmental proceedings, a “Minister of State” be regarded as a Departmental Authority for group “A” officer(s)?
Rule 3 of the Government of India (Transaction of Business) Rules, 1961, reads as under:
“3.Disposal of Business by Ministries.- Subject to the provisions of these Rules in regard to consultation with other departments and submission of cases to the Prime Minister, the Cabinet and its Committees and the President, all business allotted to a department under the Government of India (Allocation of Business) Rules, 1961. shall be disposed of by, or under the general or special directions of, the Minister-in-charge.”
Section 2 of Central Civil Services (Classification, Control & Appeal) Rules, 1965, contemplates “unless the context otherwise requires” as under:-
“(a)"appointing authority", in relation to a Government servant, means -
(i)the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or
(ii)the authority empowered to make appointments to the post which the Government servant for the time being holds, or
(iii)the authority which appointed the Government servant to such Service, grade or post, as the case may be, or
(iv)where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority;”
Section 2 (b) "cadre authority", in relation to a Service, has the same meaning as in the rules regulating that Service;
Section 2(g) "disciplinary authority" means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11;
Section 2(i) "head of the department" for the purpose of exercising the powers as appointing, disciplinary, appellate or reviewing authority, means the authority declared to be the head of the department under the Fundamental and Supplementary Central Administrative TribunalRules or the Civil Service Regulations, as the case may be;
Further Rule 13 of the ibid Rules provides as under:-
“Rule 13. Authority to institute proceedings.
(1)The President or any other authority empowered by him by general or special order may -
(a)institute disciplinary proceedings against any Government servant;
(b)direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 11.
(2)A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.”
The clarifications issued vide MHA Memo No. F.39/1/69-Ests.(A) dated the 16.04.1969 for ready reference, reads as under:
| Point raised | Classification | |
| 1. | (a) In cases where the disciplinary authority is the President, whether the case should be shown to the Minister before disciplinary proceedings are initiated. | (a)Having regard to the Transaction of Business Rules, it is necessary that in cases where the disciplinary authority is the President, the initiation of the disciplinary proceedings should be approved by the Minister. |
| (b) Whether it is necessary to show the file to the Minister every time before formal orders are issued in the name of the President, under Rules 14 Central Administrative Tribunal(2), 14(4), 14(5) etc. of the CCS (CCA) Rules? | (b)It would be sufficient if Minister's orders are obtained for taking action ancilliary to the issue of the charge sheet at the stage when the papers are put up to him for initiation of disciplinary proceedings. However formal orders of the Minister should be obtained at the stage of show cause notice under Rule 15 (4) (i) (b) and at the stage of issuing final orders imposing penalty under Rule 15 (4) (iii). |
The introductory phrasing of the definitions in Section 2, specifically “unless the context otherwise requires," must be understood in relation to the authorities granted to the “Minister of State" and the “Minister In-charge." It remains to be determined whether these two terms are functionally equivalent and can be used in place of one another.
In S. K. Gupta and Another vs K. P. Jain and Another, [1979] 3 SCC 54, it has been held as under:
"Where in a definition section of a statute a word is defined to mean a certain thing, wherever that word is used in that statute, it shall mean what is stated in the definitions unless the context otherwise requires. But where the definition is an inclusive definition, the word not only bears its ordinary, popular and natural sense whenever that would be applicable but it also bears its extended statutory meaning. At any rate, such expansive definition should be so construed as not cutting down the enacting provisions of an Act unless the phrase is absolutely clear in having opposite effect. "
In State Bank of India etc. vs Yogendera Kumar Srivastava and Others etc., [1987] 3 SCC 10, it has been Central Administrative Tribunalobserved that:
"Repugnancy of the definition of any term may arise only if such definition does not agree with the subject or context of a particular provision. But, surely, any action not in conformity' with the provision of the definition clause will not render the definition of a term repugnant to the subject or context of any provision of the statute containing the term.”
In State of Maharashtra vs Indian Medical Assn. & Ors., AIR 2002 SC 302 : 2002 (1) SCC 589, it was stated that the definition given in the interpretation clause having regard to the contents would not be applicable. It was stated as under:
“8.A bare perusal of Section 2 of the Act shows that it starts with the words "in this Act, unless the context otherwise requires”. Let us find out whether in the context of the provisions of Section 64 of the Act the defined meaning of the expression "management" can be assigned to the word "management" in Section 64 of the Act. In para 3 of the Regulation, the Essentiality Certificate is required to be given by the State Government and permission to establish a new medical college is to be given by the State Government under Section 64 of the Act. If we give the defined meaning to the expression "management" occurring in Section 64 of the Act, it would mean the State Government is required to apply to itself for grant of permission to set up a government medical college through the University. Similarly it would also mean the State Government applying to itself for grant of Essentiality Certificate under para 3 of the Regulation. We are afraid the defined meaning of the expression "management" cannot be assigned to the expression "management" occurring in Section 64 of the Act. In the present case, the context does not permit or requires to apply the defined meaning to the word "management" occurring in Section 64 of the Act.”
(Also see M/s Pandey & Co. Builders (P) Ltd. vs State of Bihar and Another, (2007) 1 SCC 467).
In Apar Private Ltd. And Others vs Union Of India, 1985(22)ELT644(BOM) while interpreting the word “unless the context otherwise requires”, it was held as under:
Central Administrative Tribunal“It is precisely to meet such a contingency the definition clauses invariably limit the scope of the definition by using the expression "unless the subject or context otherwise requires" or some such qualifying words. As laid down in Meux v. Jacobs (1875) LR 7 HL 481 at page 493, the interpretation clause should not be understood as requiring extended meaning in all circumstances, for the definition clause itself says "unless the context otherwise require". However, even where such an expression is employed it is only where the contrary intention appears from the context that the definition clause may be given a go by and the word understood as is understood in common parlance. But then, as stated above, when the definition clause employs the word "includes" and enjoins that "unless the context requires otherwise, it shall include" as stated therein, the Court cannot, unless there are compelling circumstances and reasons having regard to the context in which the word defined is used, the interpretation clause cannot give a go by to the definition. The effort of the Court should be to give effect to the meaning intended by the Parliament as made clear by defining the words employed by it in the enactment ‘unless the context otherwise requires’ ".
In Sunny Abraham vs Union of India & Anr., (2021) 20 SCC 12, it has been held as under:-
“15.The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages – for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under sub- clause (3) would render the Central Administrative Tribunalcharge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:-
“8.Ms Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings. She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo. According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy.”
16.But this argument was repelled by the Coordinate Bench, as would be evident from the opinion of the Bench reflected in paragraphs 49 & 50 of the report, which reads:-
“49.We are unable to accept the submission of the learned Additional Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC’s second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer’s report; tentative decision after CVC’s second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.
50.In our opinion, the Central Administrative Tribunal as well as the High Court has correctly interpreted the provisions of Office Order No. 205 of 2005. Factually also, a Central Administrative Tribunalperusal of the record would show that the file was put up to the Finance Minister by the Director General of Income Tax (Vigilance) seeking the approval of the Finance Minister for sanctioning prosecution against one officer and for initiation of major penalty proceeding under Rules 3(1)(a) and 3(1)(c) of the Central Civil Services (Conduct) Rules against the officers mentioned in the note which included the respondent herein. Ultimately, it appears that the charge memo was not put up for approval by the Finance Minister. Therefore, it would not be possible to accept the submission of Ms Indira Jaising that the approval granted by the Finance Minister for initiation of departmental proceedings would also amount to approval of the charge memo.”
17.We are conscious of the fact that the allegations against the appellant are serious in nature and ought not to be scuttled on purely technical ground. But the Tribunal in the judgment which was set aside by the High Court had reserved liberty to issue a fresh memorandum of charges under Rule 14 of CCS (CCA) Rules, 1965 as per Rules laid down in the matter, if so advised. Thus, the department’s power to pursue the matter has been reserved and not foreclosed.
xxx xxx xxx xxx
19.Considering the fact that the proceeding against the appellant relates to an incident which is alleged to have taken place in the year 1998 and the proceeding was initiated in the year 2002, we direct that in the event the department wants to continue with the matter, and on producing the material the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months, and thereafter the proceeding shall take its own course.”
Furthermore, in Union of India Through Secretary & Ors. vs S.K. Jasra in W.P.(C) 2742/2024 decided on 10.10.2025, the Hon’ble High Court of Delhi has held that:-
“41.Hence, being bound by the Judgment of the Supreme Court in B.V. Gopinath (supra), we find that the chargesheet having been issued without the approval of the Hon'ble Raksha Rajya Mantri is non est and cannot be validated by subsequent actions.
42.Coming to the issues of estoppel, res judicata, and public interest prohibiting the respondent from raising the challenge in the fourth O.A., we are of the opinion that once the chargesheet itself is found to be non est and without the authority of law, the entire structure built thereon has to crumble. Principles of Central Administrative Tribunalestoppel and res judicata would not apply to breathe life into a stillborn proceeding, as explained by the Supreme Court in Sunny Abraham (supra). In Ashok Leyland (supra), the Supreme Court held that when an order is passed without jurisdiction, the same becomes a nullity and cannot be supported by invoking procedural principles like estoppel, waiver or res judicata.
43.We would also herein note the submission of the learned counsel for the respondent that the respondent came to know of the fact that the chargesheet had not been put up to the Hon’ble Raksha Rajya Mantri for approval, only with the reply dated 13.08.2019 to the RTI application received by him only in September 2019. The learned counsel for the respondent has submitted that till then the respondent had no reason to doubt that the chargesheet had been issued after approval from the Hon’ble Raksha Rajya Mantri, as the chargesheet had proclaimed to have been issued ‘By order and in the name of the President’.
44.Be that as it may, we are of the opinion that once the chargesheet is found to have been issued without the authority and is to be declared non est in terms of the Judgments of the Supreme Court, the same can be challenged at any stage and the principle of res judicata will not apply.
45.For the above reasons, we find no infirmity in the orders passed by the learned Tribunal. The Writ Petition is accordingly dismissed. “
Recently, in W.P.(C) No. 9366/2022, CM APPLs. 28079/2022, 28081/2022 & 61148/2023 in the case of Dr. Bela Shah vs Indian Council of Medical Research & Ors., 2026:DHC:6245-DB, it has been held by the Hon’ble High Court of Delhi as under:
“26.Rule 11 identifies the disciplinary authorities who may levy the penalties stipulated in Rule 11. By virtue of Rule 13(2), these disciplinary authorities would also be competent to institute the disciplinary proceedings by issuing a charge sheet.
27.Rule 12(2)(b)20 empowers “the authorities specified in this behalf by a general or a special order of the President or, where no such order has been made, by the appointing authority or the authority specified in its schedule in this behalf” to impose any of the penalties envisaged in Rule 11 on any person appointed to a central civil post. Inasmuch as there are no authorities specified in the Schedule to the CCS (CCA) Rules in respect of the petitioner, it would be the appointing authority of the petitioner who would be competent to issue the charge sheet.
28.“Appointing authority” is defined in Rule 2(a)21 of the CCS (CCA) Rules. Rule 2(a) envisages the appointing authority as being penalty may be imposed.
29.The decision of the Supreme Court in Om Prakash Gupta Central Administrative TribunalSwadheen, on which Mr. Singh relies, dealt with termination of an officer under Rule 5(1)(a) of the Central Civil Services (Temporary Service) Rules, 198522. Rule 5(1)(a) of the Temporary Service Rules empowered the “appointing authority” to issue an order of termination thereunder. Rule 2(a) of the Temporary Service Rules defined “appointing authority” to be the “appointing authority” under the CCS (CCA) Rules. Thus, Rule 2(a) of the CCS (CCA) Rules became directly applicable in Om Prakash Gupta Swadheen. The Supreme Court, in the said decision, held that the appointing authority would be higher of the authorities between the authority who appointed the officer concerned and the competent appointing authority at the time of issuance of the termination order.
30.It is true that we are not concerned, here, with the competence of the authority who could punish the petitioner, assuming the disciplinary proceedings were to culminate in punishment. We are concerned with the authority who would be competent to institute the disciplinary proceedings.
31.The CCS (CCA) Rules, however, equate these authorities. Rule 13 deals with the authority who could institute disciplinary “Temporary Service Rules”, hereinafter proceedings. Sub-rule (2) thereof clearly states that the institution of disciplinary proceedings has to be by the DA competent, under the CCS (CCA) Rules, to impose penalties. There is, therefore, no distinction, in the CCS (CCA) Rules, between the authority who was competent to award punishment or impose penalties, and the authority who could institute the disciplinary proceedings which culminated in the order of punishment or penalty.
32.This is also reflected in Rule 14(3) and (4), which require the DA to hold the enquiry against the charged officer and to “deliver or cause to be delivered to the Government servant copy of the articles of charge”.
33.Keeping the discussion regarding Om Prakash Gupta Swadheen on hold, for the present, it becomes necessary, at this juncture, to refer to a recent judgment of the Supreme Court in State of Jharkhand v. Rukma Kesh Mishra 2025 SCC OnLine SC 676 .
34.The appeal before the Supreme Court, in Rukma Kesh Mishra, emanated from the decision of the High Court of Jharkhand to quash the disciplinary proceedings instituted against the respondent on the ground that the charge-sheet had not been approved by the Chief Minister of Jharkhand, who was the competent DA. Article 311(1) was invoked, both by the learned Single Judge as well as by the Division Bench of the High Court, to hold that the charge-sheet had not been issued or approved by the competent authority.
35.The Supreme Court held that the reliance, by the High Court, on Article 311(1), to be misguided. The Supreme Court observed that the respondent before it was governed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, which clearly required the “appointing authority” to issue the charge-Central Administrative Tribunalsheet to the charged officer. This provision, it was noticed, was in contradistinction to Article 311(1), which required dismissal, removal or reduction in rank to be by an authority who was not “subordinate to that by which (the charged officer) was appointed”. The Supreme Court observed that there was a distinction between the expression “appointing authority” and the authority “by which” the charged officer “was appointed”. The issuance of the charge-sheet by the authority who was, at that time, the appointing authority for the post held by the charged officer was, therefore, held to be valid, even if the authority was subordinate to the authority who had in fact appointed the respondent.
36.Rukma Kesh Mishra, however, did not involve any provision akin to Rule 13(2) or sub-Rule (3) or (4) of Rule 14 of the CCS (CCA) Rules, as are available in the case before us. These provisions, as we have noticed, required the DA to institute the disciplinary proceedings by drawing up, or by causing to be drawn up, the charge-sheet and having the charge-sheet served on the charged officer. Rule 12 requires the DA not to be subordinate to the appointing authority, and the definition of “appointing authority” in Rule 2(a) of the CCS (CCA) Rules envisages the appointing authority as being the higher, between the authority who appointed the charged officer and the authority who, at the time of issuance of the charge-sheet, was competent to appoint persons holding the post of the charged officer. The interpretation of Rule 2(a) in Om Prakash Gupta Swadheen, which holds that if there is a difference between the appointing authority at the time of appointment of the petitioner and the “appointing authority” as defined in the Rules at the time of issuance of the charge sheet, the higher of the two authorities would be competent to issue the charge sheet would, therefore, directly be applicable.
37.Rukma Kesh Mishra did, however, also advert to Rule 14(3) of the CCS (CCA) Rules. Para 36 of the report, which deals with Rule 14(3), read thus: “36. Since invocation of the provisions in Discipline and Appeal Rules similar to Rule 14(3) of the 1965 Rules or Rule 17(3) of the 2016 Rules and citing failure to adhere to the same to invalidate orders terminating services of officers/employees is not too infrequent, we consider it proper to briefly touch upon the requirement thereof. The Disciplinary Authority is mandated by the law to ‘draw up’ or ‘cause to be drawn up’ the substance of the imputations of misconduct or misbehavior as a definite and distinct article of charge together with the statement of such imputations. The phrases ‘draw up’ and ‘cause to be drawn up’ do have different meanings in the context of disciplinary proceedings, though both relate to drawing up of a charge-sheet. By ‘draw up’, what is express is that the Disciplinary Authority itself is responsible for preparing the substance of imputation and the statement of allegations in support thereof, whereas ‘cause to be drawn up’ would enable the Disciplinary Authority to instruct or direct someone else to prepare the substance and statement. The effect of it is that the Disciplinary Authority itself may not prepare the document but rather delegate the task to someone else. If the delegation is Central Administrative Tribunalproved to have been made in favour of an authority holding an office superior to that of the officer/employee proposed to be proceeded against, nothing much is required to be done and the courts ought to exercise restraint.”
38.Rukma Kesh Mishra, therefore, notes that Rule 14(3) of the CCS (CCA) Rules does not require the charge-sheet, inexorably, to be drawn up by the DA; the DA could also cause the charge-sheet to be drawn up by another authority, as his delegatee.
39.That distinction would, however, not affect the outcome of the present dispute, or the applicability, to the facts before us, of the decision in Om Prakash Gupta Swadheen, as the DA in the case of the petitioner, by operation of Rule 2(a) of the CCS (CCA) Rules read with the decision in Om Prakash Gupta Swadheen, was the EC, and it is nobody’s case that the EC had delegated the power to institute disciplinary proceedings, or issue the charge-sheet to the petitioner, to the DG. The DG, in issuing the charge-sheet, could not, therefore, be said to be acting as a delegatee of the EC. Para 36 of Rukma Kesh Mishra would not, therefore, salvage the charge-sheet which, clearly, has not been issued by the DA or by his delegatee. (emphasis supplied)
40.Pyare Lal Sharma and Dr S.L. Agarwal, on which Mr Bidhuri relies, are clearly distinguishable. In Pyare Lal Sharma, the board of directors, who had appointed the appellant (before the Supreme Court) had delegated its power as appointing authority to the managing director, who thereafter instituted disciplinary proceedings. Dr S.L. Agarwal did not even obliquely address this issue.
41.The issuance of the charge-sheet to the petitioner was, therefore, in violation of Rule 13(2) read with sub-Rules (2) and (3) of Rule 14 and Rule 2(a) of the CCS (CCA) Rules.
42.We, therefore, are in agreement with Mr. Singh in his submission that the disciplinary proceedings stood vitiated ab initio.
43.Inasmuch as the very issuance of the charge-sheet, in the case before us, was by an incompetent authority, we cannot relegate the proceedings to any stage of the disciplinary proceedings, as they stand vitiated from their very initiation.
44.The OA filed by the petitioner was, therefore, entitled to succeed. We are constrained, therefore, to hold that the Tribunal was in error in dismissing the OA.
Conclusion
45.The writ petition, as also OA 3428/2015, therefore, succeed and are allowed. The charge-sheet dated 27/30 April 2015 would stand quashed and set aside.”
Applying the above ratio in light of the rule position as narrated hereinabove and on perusal of records in the present case, we observe that according to Rule 8, the President of India serves as the appointing authority for Group 'A' positions. The respondent failed to provide substantive documentation or evidence of delegated power under the Government of India (Allocation of Business) Rules, 1961, to prove that the "Minister of State" functions as a disciplinary authority, as contemplated under definition clause, i.e. Section 2 (b) "cadre authority," Section 2 (g) "disciplinary authority," or "head of the department" under Section 2(i), particularly as such an official does not qualify as the "Minister-in-charge." Furthermore, the respondents admitted in a supplementary affidavit that while the original order authorizing the publication of the booklet cannot currently be located within existing records, its guidelines have been systematically implemented across the Ministry and are presumed to have received sanction from the relevant authorities. Notably, the President of India has issued no general or specific directives delegating such powers to the "Minister of State" in this matter. A Minister of State (whether with independent charge or attached to a Cabinet Minister) is a political executive authority, not a statutory “departmental authority" or disciplinary authority for Group ‘A’ civil officers under service frameworks like the CCS (CCA) Rules, 1965. Statutory administrative, appointing, and disciplinary powers are vested in designated civil service functionaries (such as the President, Secretaries, or designated Cadre Authorities), though high-level case files are submitted to the Minister for formal political approval under the Government of India Transaction of Business Rules.
We also observe, in relation to the procedure in respect of resignation from service where acceptance of the resignation is considered necessary in the public interest, that the resignation may be accepted with the prior approval of the Head of the Department in respect of Group 'C' & 'D' posts and that of the Minister in charge in respect of holders of Group 'A' and 'B' posts. In so far as Group 'B' officers serving in the Indian Audit and Accounts Department are concerned, the resignation of such officers shall not be accepted except with the prior approval of the Comptroller and Auditor General of India. Concurrence of the Central Vigilance Commission should be obtained before submission of the case to the Minister-in-charge/Comptroller and Auditor General, if the Central Vigilance Commission had advised initiation of departmental action against the Government servant concerned or such action has been initiated on the advice of the Central Vigilance Commission [Deptt. Of Personnel & Training OM No. 28034/25/87-Ests. (A) dated 11th February, 1988]
The deliberation and ultimate approval of the formal charges issued on 21st May 2020, the designation of the investigating official, the findings of the inquiry submitted on 24th December 2021, the UPSC's recommendation from 9th December 2022, and the subsequent expulsion order of 7th March 2023, all of which necessitate the Disciplinary Authority's independent judgment, have been entirely devoid of such scrutiny from the outset. An improper procedure or administrative oversight by an administrative set up does not evolve into a legitimate legal standard or a vested right through repetition. Within the framework of constitutional and administrative principles, persistent procedural flaws or historical habits are incapable of superseding explicit statutory mandates or validating acts that breach regulatory laws. A public authority is not compelled to replicate an error simply based on its prior occurrence. An erroneous custom fails to establish a mandatory legal precedent or an enduring entitlement. Any action or directive by an official that exceeds their fundamental statutory jurisdiction is null and void from its inception and cannot achieve legality solely because it has been practiced for a significant duration. Consequently, the issue presented is resolved to the benefit of the applicant.
8. CONCLUSION
In view of the above analysis and discussion, we allow the present O.A. and quash and set aside the charge sheet dated Central Administrative Tribunal21.05.2020, the Inquiry Report dated 24.12.2021, UPSC advice dated 09.12.2022 and the Dismissal Order dated 07.03.2023 and revisional/review order(s), with directions for reinstatement of the applicant in service with all consequential benefits. The above directions must be complied with within a period of two months from the date of receipt of the certified copy of this order.
However, we grant liberty to the respondents to issue a fresh memorandum of charge as per the Rules laid down in the matter, if so advised, having regard to nature of allegations and considering the date of superannuation of the applicant as well. Considering the fact that the proceedings against the applicant relate to an incident(s) which are alleged to have taken place in July-August 2018 and that the proceedings were initiated in the year 2019-2020, we direct that, in the event the department wants to continue with the matter, and on production of the material, if the Disciplinary Authority is satisfied that a fresh charge memorandum ought to be issued, such charge memorandum shall be issued not beyond a period of two months from the date of his reinstatement, and thereafter, the proceedings shall take their own course in accordance with law. However, there shall be no order as to costs.
All pending MAs, if any, shall also stand disposed of.
The original files/record shall be returned to the respondents through their counsel in a sealed cover.