In WP (C) 6526 of 2017- DEL HC - CCS (CCA) Rules: ‘In the absence of approval of chargesheet by the President of AIIMS, the foundation becomes fundamentally defective making the subsequent proceedings fall on the ground’: Delhi High Court
Justice Kameswar Rao and Justice Anoop Kumar Mendiratta [25-05-2023]
Read Order- All India Institute of Medical Sciences v S.P. Vashisht
New Delhi, May 25, 2023: The Delhi High Court, while exercising its civil writ jurisdiction, agreed with the findings of the Tribunal but modified the operational part of the order whereby the liberty had been granted to initiate fresh disciplinary inquiry against the respondent by following the procedure laid down in Central Civil Services (Classification, Control and Appeal) Rules, 1965 (‘CCS (CCA) Rules’) and in terms of the law laid down by the Supreme Court in case of Union of India v. B.V. Gopinath by directing for initiating the proceedings not beyond a period of 3 months from the date of the order and, thereafter, the proceedings was to take its own course, as per law.
The Bench sated that in the instant case, in the absence of the approval of charge memo by the competent Disciplinary Authority i.e. the President, AIIMS, who was empowered to impose the penalties under clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules, the very foundation of issuing the charge-sheet became fundamentally defective and was not capable of being validated by merely placing the file before the Disciplinary Authority (i.e. the President, AIIMS) at the final stage. As the initial action itself was not in accordance with law, the subsequent inquiry proceedings and the decision taken thereupon would fall to the ground.
In the matter at hand, All India Institute of Medical Sciences (‘AIIMS’) questioner the order dated 03-02-2016 passed by the Central Administrative Tribunal whereby the chargesheet issued by the petitioner against the respondent herein had been held to be void ab initio, including the inquiry report as well as the punishment order dated 18-07-2013 which had imposed the penalty of compulsory retirement. However, the petitioner had been given the liberty to initiate fresh disciplinary inquiry against the respondent by following the procedure under CCS (CCA) Rules, 1965 and in terms of law laid down by the Supreme Court in Union of India v. B.V. Gopinath .
It was the case of the petitioner that the respondent was appointed to the post of Hawaldar in AIIMS on 27-09-1983 and was subsequently promoted to the post of Sanitary Officer. On the basis of a surprise check by the Central Bureau of Investigation (‘CBI’), ACB, New Delhi, an FIR was registered on 03-03-1999 under Sections 120 (B) and 420 Indian Penal Code, 1860 and Section 13 (2) read with Section 13 (1)(d) of the Prevention of Corruption Act, 1988, for causing undue pecuniary advantage to one Mr. Rajeev Rastogi of M/s Rajeev Enterprises, by ignoring AIIMS rate contact with its approved suppliers. Allegations also pertained to supply of surgical items by firms not having license from the Drugs Controller, NTC, Delhi and supply of various sub-standard items in the Hospital. A copy of the report was forwarded recommending major penalty proceedings against the erring officials of AIIMS on 05-09-2001.
On 17-10-2001, a proposal for consideration of request of CBI, ACB, New Delhi was placed before the Governing Body of AIIMS, which authorised the President, AIIMS to constitute a Committee to look into the matter and submit its recommendations to the Governing Body for
- grant of sanction for prosecution,
- initiation of regular disciplinary proceedings for major penalty
- follow up action/suspension subsequent to decision on (a) & (b) above
A two-member Committee was accordingly constituted and recommendations of Committee were submitted to the President AIIMS for consideration. The report of the committee was further placed before the Governing body in its meeting held on 03-04-2002 which recommended that in absence of material substance pertaining to any malafide intention on the part of Dr. D.K. Sharma, the case be referred back to CBI for reconsideration and for dropping of his name for prosecution. The Governing Body did not discuss the case in respect of remaining officials and the observations of Governing Body were communicated to CBI.
On 08-01-2003, DIG, CBI requested for prosecution sanction in respect of remaining 9 officials except Dr. D.K. Sharma. It was thereafter informed by CBI that since 3 officials had retired in the meanwhile, the prosecution sanction was required for only 6 officials. Thereafter, it was also decided therein that departmental inquiry be initiated against some other officers including respondent S.P. Vashisht, Sanitary Inspector. Accordingly, on 14-11-2008 after receipt of relevant documents from CBI, the charge-sheet was issued to the respondent in accordance with Rule 13 of CCS (CCA) Rules, i.e. the charge-sheet was issued with the approval of Director, AIIMS and after completing all the procedures, the matter was placed before the President, AIIMS for final decision. Further, after considering all the relevant facts and circumstances and complying with the procedural requirements including second stage advice of CVC, the President, AIIMS decided to impose the penalty of compulsory retirement.
The appeal filed by the respondent was thereafter placed before the Governing Body since as per Schedule 2 of the AIIMS Regulations, 1999, (‘AIIMS Regulations’) the Governing Body is the Appellate Authority for consideration. However, the same was not considered as respondent had already approached the Tribunal. It had also been pointed out that respondent was due to retire from the services of the Institute on 30-06-2014 and the penalty was imposed on 18-07-2013. The same had no impact on the pension benefits since the respondent had been granted 100% pension.
Aggrieved against the penalty imposed vide order dated 18-07-2013, the respondent approached the Tribunal for quashing of the impugned penalty order along with charge sheet dated 14-11-2008, Inquiry Officer report dated 20-06-2011 and whole inquiry proceedings and for directing the respondents to reinstate the applicant in service from the date of compulsory retirement with all consequential benefits including the arrears of back period pay and allowances with interest.
The Tribunal after considering the fact that the charge-sheet had been issued by the Director, AIIMS under his own signatures and did not reflect the approval of the President, AIIMS and relying upon the law laid down by the Supreme Court in B.V. Gopinath (supra), it held that the charge-sheet was ab initio void along with further action taken by the petitioner based upon the charge-sheet, including Inquiry Officer’s Report as well as the impugned punishment order passed by the petitioner.
Issue for consideration
- Whether the Director, AIIMS was required to place the file before the President, AIIMS who was the competent authority for imposing the penalty under clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules for approval, for purpose of drawing up or cause to be drawn the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charge under Rule 14(3) of CCS (CCA) Rules.
- Consequently, if the inquiry proceeding was non-est if the charge-sheet was not placed for approval of the President, AIIMS who was the Competent Disciplinary Authority to impose the penalties under clauses (v) to (ix) of Rule 11 of the CCS (CCA) Rules, as expounded in the Supreme Court case of B.V. Gopinath (supra).
The Bench noted that the appointing authority, the disciplinary authority, the penalties that maybe imposed and the appellate authority for various posts in the Institute were prescribed in Schedule II, as per Regulation 33 of AIIMS Regulations framed in exercise of powers conferred under Sub-Section 1 of Section 29 of All India Institute of Medical Sciences Act 1956 and the CCS (CCA) Rules.
The Court stated that Schedule II of the AIIMS Regulations indicated that Appointing Authority for the Group ‘B’ posts with reference to the respondent, was the ‘President’ of the Institute. Further, Director was the Disciplinary Authority for the purpose of imposing penalties under clauses (i) to (iv) of Rule 11 of the CCS (CCA) Rules, while for all other penalties, the President was the prescribed Disciplinary Authority. Accordingly, the corresponding Appellate Authority in respect of the penalties specified under clauses (i) to (iv) of Rule 11 was the President and for all other penalties, the Appellate Authority was the Governing Body of the Institute.
The Bench noted that that in the note beneath Schedule II, the Chairman of the Governing Body has been authorised to initiate departmental proceedings against the employees of Group ‘A’ and faculty members and the final decision of penalty would be taken in the Governing Body meeting. However, no such authorisation to initiate departmental proceedings had been specified in favour of any particular officer in respect of Group ‘B’ posts and, as such, the resort was sought only under Rule 13(2) of the CCS (CCA) Rules by the petitioner in support of its contentions.
The Court stated that Rule 14 of the CCS (CCA) Rules, 1965 provided for holding a departmental inquiry as per the provisions of Article 311(2) of the Constitution of India. Further, it contemplated approval of Disciplinary Authority for initiation of disciplinary proceedings and drawing up of charges of misconduct before a punishment be imposed on the public servant if the charges were proved on inquiry. The approval to initiate the departmental proceedings and the subsequent approval of the charge memorandum in terms of Rule 14(3) of CCS (CCA) Rules were two distinct stages which needed to be approved by the Disciplinary Authority. The rationale for obtaining such approval in terms of Rule 14(2) & (3) of CCS (CCA) Rules was that the Disciplinary Authority may apply its mind to determine whether the inquiry was to be initiated and if the proposed charges were made out or the proceedings would necessitate issuance of a lesser charge.
The Court stated that it had been settled in B.V. Gopinath (supra) that initial and general approval granted for initiation of disciplinary proceedings could not be construed as an approval to the issuance of charge memo or charge-sheet by the Disciplinary Authority under Rule 14(3) of CCS (CCA) Rules. Accordingly, the charge memorandum without the approval of the Disciplinary Authority was held to be non-est in a concluded proceeding though the initial and general approval was obtained for initiation of disciplinary proceedings.
The Bench had referred to Sunny Abraham v. Union of India, wherein it was held that the fact that initiation of proceedings had received approval of the Disciplinary Authority which could not lighten the obligation on the part of the employer in complying with the requirement of Rule 14(3) of CCS (CCA) Rules, 1965, since Rule 14(2) & (3) contemplated independent approval of the Disciplinary Authority at both stages, for initiation of inquiry and also for drawing up or cause to be drawn up the charge memorandum. In the event, the requirement of Rule 14(2) was complied with, not having the approval at the time of issue of charge memorandum under Rule 14(3) would still render the charge memorandum fundamentally defective, not capable of being validated retrospectively.
The Court considered it to be well settled that the approval for initiation of departmental proceedings does not include the approval of charge memo in specific. In the present case, the petitioners had only relied upon the minutes of the Governing Body held on 05-07-2005 to contend that the departmental inquiry proceedings were initiated against the respondent and other officers after approval by the Governing Body. No documents had been placed on record to reflect in case the approval of the Disciplinary Authority competent to impose the penalties specified in clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules i.e. President, AIIMS, was obtained for approval of charge memo. The initiation of departmental proceedings for major penalty was stated to have been authorised by the Governing Body in its meeting held on 05-07-2005 and the Report of the Inquiry Officer was stated to have been finally placed for consideration of the President, AIIMS who was the Disciplinary Authority, in respect of penalties which may be imposed under clauses (v) to (ix) of Rule 11 of CCS (CCA) Rules. The matter was also stated to have been duly referred to CVC for second stage advice.
The Bench navigated through Rule 13 of the CCS (CCA) Rules which reflected that the Disciplinary Authority was not competent under these Rules to impose any of the latter penalties under clauses (v) to (ix) of Rule 11 which may also institute disciplinary proceedings against any Government servant. Undisputedly, the proceedings held against a public servant under the CCS (CCA) Rules to determine whether the delinquent official was guilty of the charges, was in nature of quasi judicial proceedings. An important exercise of power for initiation of proceedings as well as issuance of charge memo under Rule 14(2) & (3) of CCS (CCA) Rules, could not be deemed to be delegated by virtue of provisions of Rule 13(2) of CCS (CCA) Rules and the same merely permitted the institution of the disciplinary proceedings against a government servant to impose penalties specified in clauses (i) to (iv) of Rule 11 of CCS (CCA) Rules.
The Bench was of the view that if any authority other than the Disciplinary Authority competent to impose the penalty permissible under the Rules was permitted to draw the charge memo, the same would destroy the underlined protection guaranteed under Article 311(2) of the Constitution unless specifically permitted under the Rules framed in this regard. Further, in the light of the proposition of law settled in B.V. Gopinath (supra), though under Rule 13(2) of the CCS (CCA) Rules, a Disciplinary Authority competent under the said Rules to impose the penalties specified in clauses (i) to (iv) of Rule 11 may institute the disciplinary proceedings against the government servant for imposition of any of the penalties specified in clauses (v) to (ix) of Rule 11, notwithstanding that such Disciplinary Authority was not competent under the CCS (CCA) Rules to impose any of the latter penalties but the same did not lighten the obligation to seek the approval of the ‘Disciplinary Authority competent to impose the penalty under the Rules’ for approval of charge memo. By virtue of Rule 13(2) of CCS (CCA) Rules, the Director, AIIMS being authorized to institute the proceedings could have only ‘drawn up’ the distinct Articles of Charge which could be only finalized after approval by the Disciplinary Authority competent to impose the penalty i.e. President, AIIMS.
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