Approval granted for initiating departmental enquiry can not be taken as approval for issuance of charge memo

 The
primary submission of the respondent was that the charge
sheet not having been issued by the disciplinary authority is
without authority of law and, therefore, non est in the eye of
law. This plea of the respondent has been accepted by the
CAT as also by the High Court. The action has been taken
against the respondent in Rule 14(3) of the CCS(CCA) Rules
which enjoins the disciplinary authority to draw up or cause
to be drawn up the substance of imputation of misconduct or

misbehaviour into definite and distinct articles of charges.
The term “cause to be drawn up” does not mean that the
definite and distinct articles of charges once drawn up do not
have to be approved by the disciplinary authority. The term
“cause to be drawn up” merely refers to a delegation by the
disciplinary authority to a subordinate authority to perform
the task of drawing up substance of proposed “definite and
distinct articles of charge sheet”. These proposed articles of
charge would only be finalized upon approval by the
disciplinary authority. Undoubtedly, this Court in the case of
P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor
General & Ors.19 has held that Article 311(1) does not say
that even the departmental proceeding must be initiated only
by the appointing authority. However, at the same time it is
pointed out that “However, it is open to Union of India or a
State Government to make any rule prescribing that even
the proceeding against any delinquent officer shall be
initiated by an officer not subordinate to the appointing
authority.” It is further held that “Any such rule shall not be
inconsistent with Article 311 of the Constitution because it
19
1993 (1) SCC 419

will amount to providing an additional safeguard or protection
to the holders of a civil post.”REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO 7761 OF 2013
(Arising out of SLP (C.) No. 6348 of 2011)
Union of India & Ors.
...Appellants
VERSUS
B.V.Gopinath



2. The central issue that arises for consideration in these
appeals is: whether the charge sheet issued against the
respondents is without jurisdiction, in view of the fact that the
disciplinary authority, i.e., the Finance Minister, had not
given approval for issuing the charge memo, even though he
had given approval for initiation of major penalty proceedings
against the respondents.
3. Since the issue raised in the present appeals is purely legal,
it would not be necessary to make a detailed reference to
the facts of individual cases. For convenience and for the

purpose of reference only, we advert to the facts as pleaded
in Civil Appeal No.__________@ SLP (Civil) No. 6348 of
2011 (Union of India & Ors. Vs. B.V.Gopinath).
4. Mr. B.V. Gopinath joined the Indian Revenue Service in the
year 1987 as Assistant Commissioner of Income Tax. It
appears that he earned promotion as Deputy Commissioner
of Income Tax in 1998, Joint Commissioner of Income Tax in
1999 and Additional Commissioner of Income Tax in 2000.
On 7th/8th September, 2005, whilst working on the
aforesaid post, Mr. Gopinath (respondent No.1) was served
with a charge sheet under Rule 14 of Central Civil Services
(Classification, Control and Appeal) Rules, 1965 (hereinafter
referred to as “CCS (CCA) Rules”). The said charge sheet was
issued on the allegation that in 2003 the respondent was
alleged to have approached one Chartered Accountant in
Chennai for securing his transfer to Mumbai by offering bribe to
the P.A. to the then Minister of State (Revenue). Thus, the
charge levelled against the respondent was that he failed to
maintain integrity; and exhibited a conduct which is unbecoming
of a government servant. The respondent submitted his reply to

the allegations wherein he denied the charges levelled against
him. He requested for supply of certain documents. In due
course, the Inquiry Officer and the Presenting Officer were
appointed.
5. During the pendency of the inquiry proceedings, the
respondents
filed
O.A.
No.800
of
2008.
In
these
proceedings, the respondents claimed that the charge sheet
dated 7th/8th September, 2005 is without jurisdiction,
therefore, liable to be quashed, as the charge memo had not
been approved by the Finance Minister. We may also notice
here that prior to filing of the aforesaid O.A., the respondent
had
already
approached
CAT
twice:
firstly,
seeking
direction(s) to the Union of India to supply all the documents
relied upon in connection with the charge-sheet issued
against him. Secondly, seeking a direction to the appellant
for timely completion of the departmental proceedings
against him. The directions given by CAT in the aforesaid
proceedings, however, have no bearing on the controversy
involved herein.

6. In the present appeal, we are concerned with the legality or
otherwise of the order passed by CAT on 5 th February, 2009
in O.A. No. 800 of 2008. By the aforesaid order, CAT
quashed the charge sheet dated 7th/8th September, 2005
issued against the respondent on the ground that there was
nothing on record to show that the Finance Minister
approved the charge sheet. The aforesaid order of CAT was
challenged, by way of Writ Petition (Civil) No. 10452 of 2009,
before the Delhi High Court. By order dated 28 th July 2009,
which has been impugned before this court, the Delhi High
Court dismissed the said writ petition.
Appellants’ Submissions:
7. Ms. Indira Jaising, learned Additional Solicitor General of
India appearing for the appellants, submitted that the High
Court as well as the CAT have committed a grave
jurisdictional error in quashing the charge sheet, which was
issued by the competent authority, in accordance with the
procedure prescribed.

8. She 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, the 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.
9. She pointed out that upon receipt of a complaint the same is
examined by the Chief Vigilance Officer in the office of the
Director General, Income Tax (Vigilance). A decision is
taken upon examination of the complaint as to whether there

is a vigilance angle involved. In case, it is found that a
complaint
involves
investigation
is
a
vigilance
conducted.
angle,
During
a preliminary
the preliminary
investigation, the version of the officer concerned is also
taken. Thereafter, the decision is taken by the Chief
Vigilance Officer (hereinafter referred to as “CVO”) with the
approval of Central Board of Direct Taxes as to whether
disciplinary proceedings are to be initiated. In case, the CVO
decides to initiate disciplinary proceedings, the matter is then
referred to the Chief Vigilance Commission for first stage
advice. The Chief Vigilance Commission examines the first
stage advice. In case the Chief Vigilance Commission
concurs with the decision taken by the Chief Vigilance
Officer, a detailed note is prepared for initiation of
disciplinary proceedings which is put up to the Finance
Minister. She emphasised that alongwith note for initiation of
disciplinary proceedings, all relevant supporting material is
also placed before the Finance Minister. It is upon
consideration of the entire material alongwith the explanatory
note that the Finance Minister takes a decision to initiate
departmental proceedings. In view of the aforesaid elaborate

procedure, the CAT as well as the High Court had
erroneously concluded that such procedure would not
amount to approval of the charge memo.
10.
Ms. Jaising further submitted that Office Order No.
205 of 2005 has been misread by the Courts below. She
points out that to appreciate the true purport of the said
office order, a careful consideration needs to be given to the
safeguards available to a delinquent officer under the
Constitution of India and the CCS (CCA) Rules. Learned
ASG then submitted that Article 311 provides for two
safeguards for the delinquent officer: (i) the officer cannot be
dismissed or removed by the authority subordinate to the
appointing authority of the officer concerned [Article 311(1)];
and (ii) the dismissal or removal can only be effected after
an enquiry in which the official has been informed of the
charges against him and is given a reasonable opportunity to
be heard in respect of those charges [Article 311(2)]. She
submits that in the present case, none of the two safeguards
have been violated. She has elaborated that the disciplinary
proceedings were initiated against the respondent in terms

of Rule 14 of CCS (CCA) Rules, which prescribed the
procedure for imposing major penalty. Relying on Rule
14(3), she again drew our attention to the expression that
the disciplinary authority shall draw up or cause to be drawn
up
the
substance
of
imputation
of
misconduct
or
misbehaviour into definite and distinct articles of charge. She
submitted that the entire procedure under Rule 14(3) has
been followed. Under Rule 14(4) again disciplinary authority
is required to either deliver or cause to be delivered to the
Government servant a copy of the articles of charge. This
was also admittedly followed in the present proceeding. She
reiterated that a plain reading of Rule 14(3) would show that
it permits the disciplinary authority to cause the charge
memo to be drawn up by a subordinate authority.
11.
The ASG then submitted that the office order
No.205 of 2005 was passed in view of the stress on time and
resources being felt in the Department of Finance due to
insufficient delegation of powers in respect of disciplinary
action
cases.
Accordingly,
after
considering
the
recommendations of a Committee formed for this purpose,

the office order was passed prescribing the competent
decision making authority for various steps in disciplinary
action cases in CBEC and CBDT. The office order
prescribed the competent authority for granting approval at
different stages. It does not prescribe the stages which
require approval. She further submitted that the High Court
has misinterpreted clause (8) of the aforesaid order. She
points out that the expression “approval for issuing charge
memo” cannot be read as distinct from “approval for initiating
major penalty proceedings”. According to the learned ASG,
the office order dated 19th July, 2005 does not impose any
requirement that the charge memo must be approved by the
disciplinary authority. Clause (8) of the office order,
according to Ms. Indira Jaising, only provides that the
Finance Minister is the competent authority for granting
approval “for issuing charge memo”, and not for “approving
the charge memo”. She submits that the procedure for
drawing up the charge memo commences when approval is
sought for initiation of the disciplinary proceedings. The
actual drawing up of the charge memo is a part of and
incidental to the approval to initiate disciplinary proceedings

and is a ministerial act. The approval to initiate disciplinary
proceedings is the approval to set the law in motion and
carries with it, by necessary implication, all things to
effectuate the same. Therefore, the grant of approval for
initiation of disciplinary proceedings amounts to grant of
approval for issuance of charge memo.
12.
The learned ASG further submitted that the office
order does not create any enforceable rights in favour of the
respondent, since the said order is intended for internal
functioning of the department concerned. The order, she
submits, must be given a purposive interpretation to discern
its true import. It was submitted by the learned ASG, it would
be sufficient compliance with the said order if it is shown that
there was approval by the disciplinary authority to initiate
disciplinary proceedings and approval is granted to the
material on the basis of which the charge memo has been
drawn. In this context, reliance was placed upon Seaford
Court Estates Ltd Vs. Asher,1 Municipal Corporation of
Greater Bombay and Others Vs. Indian Oil Corporation
1
[1949] 2 KB 481

Ltd.,2 State of Karnataka Vs. Appa Balu Ingale & Ors.,3
Forest Range Officer & Ors. Vs. P. Mohammad Ali &
Ors.,4 State of Madhya Pradesh Vs. M.V. Narasimhan5.
13.
Learned ASG further submitted that the High Court
has wrongly drawn a distinction between approval for
initiation of the disciplinary proceedings and approval for
issuance of charge memo by treating them as two distinct
steps.
She
reiterated
that
approval
for
initiation
of
departmental proceeding would include approval of the
charge memo by disciplinary authority.
14. The next submission of the learned ASG is that the charge
sheet is normally not to be quashed unless prejudice is
shown to be caused to the delinquent officer. And since the
respondent has not alleged any prejudice caused to him by
virtue of the charge sheet not having been approved by the
disciplinary authority, the charge sheet ought not to have
been interfered with. Reliance was placed on State of Uttar
2
1991 Supp. (2) SCC 18
1995 Supp (4) SCC 469
4
1993 Supp (3) SCC 627
5
(1975) 2 SCC 377

Pradesh
Vs. Brahm Dutt Sharma & Anr., 6 Executive
Engineer, Bihar State Housing Board Vs. Ramesh Kumar
Singh & Ors.,7 Ulagappa & Ors. Vs. Div. Commr., Mysore
& Ors.8 Special Director & Anr. Vs. Mohd. Ghulam
Ghouse & Anr.9 and Union of India & Anr. Vs. Kunisetty
Satyanarayan10 and The Secretary, Min. of Defence and
Ors. Vs. Prabhash Chandra Mirdha 11
15.
In support of her submission that it is not necessary
that charge sheet should be framed by the authority
competent to impose penalty or that enquiry should be
conducted by such authority alone, reliance was placed on
Inspector General of Police & Anr. Vs. Thavasiappan.12
16.
Further, it was submitted that it is in the interest of
good administration to interpret said the office order in the
manner as contended by the learned ASG since there are
more than 500 enquiries that have been initiated in the
6
AIR 1987 SC 943
(1996) 1 SCC 327
8
AIR 2000 SC 3603 (2)
9
AIR 2004 SC 1467
10
AIR 2007 SC 906
11
2012 (11) SCC 565
12
1996 (2) SCC 145

aforesaid manner.
17.
Lastly, it was submitted that the appellants, out of
abundant caution, have now amended the procedure and
seek the approval of the Finance Minister for charge memo.
Respondents’ Submissions:
18.
Mr.
P.S.
Patwalia,
learned
senior
counsel,
submitted that provisions of CCS (CCA) Rules 1965 are
applicable to the respondent, an officer of Indian Revenue
Service. And that since the charge sheet that was issued to
him contemplated a major penalty, Rule 14 of CCS (CCA)
Rules is attracted. Reliance was placed upon Registrar of
Cooperative Society Vs. F.X. Fernando, (supra) to
contend that the CCS (CCA) Rules require a strict
compliance. It was further submitted that it is an admitted
fact that the Disciplinary Authority has not approved the
charge sheet.

19.
After citing Rule 14 of the CCS (CCA) Rules, the
learned senior counsel has elaborated the various stages
when decisions required to be taken to comply with the said
provision:
a. Whether or not there is justification for initiation of an
enquiry against a Government Servant? This would
also include undertaking the decision that whether
Disciplinary Authority would itself hold the enquiry or
appoint some other authority to do the same.
b. The second stage is drawing up of chargesheet; and
that has to be done by the Disciplinary Authority.
c. Then the Disciplinary Authority has to apply its mind on
the charges framed under Rule 14(3) and has to grant
its approval.
20.
It was further submitted that there may be some
situations where even despite the fact that approval has
been accorded to initiate the enquiry, charge sheet may not
be issued or approved. To illustrate, it was pointed out that
there
may
be
circumstances
where
the
Disciplinary
Authority, after approving the initiation of proceedings but

before giving approval to the charge sheet, comes to a
conclusion that a lesser charge or no charge is made out
against the concerned officer. In such circumstances, the
Disciplinary Authority proceeds accordingly and may drop
the proceedings. Thus, it is for this reason that Rule 14
provides that the Disciplinary Authority has to apply its mind
separately at two different stages:
(i)
initiation of proceedings and (ii) approval of charge sheet.
21.
In this context, similar submissions were also
reiterated by Mr. Shekhar Kumar, learned counsel for
respondent in
SLP (Civil) No. 25839 of
2011. Referring to Rule 14 (3), learned counsel submitted
that charge-memo ought to have been sanctioned by the
Disciplinary Authority, especially since there was no sub-
delegation of such power in favour of any other officer.
22.
The next submission of Mr. Patwalia is that the
Office Order No. 205/2005, Clause/ Item No. 8, mandates
that the approval of the charge sheet has to be granted by
the Finance Minister. This interpretation is fortified by clause
1
Page 17
9 of the 2005 office order. Clause 9 requires that if there has
to be any dropping/modification/amendment of the charges,
after receiving the Written Submission of Defence, then the
file has to be put up to the Finance Minister. Learned Senior
Counsel states that if dropping/modification/amendment of
charges is required to be undertaken by the Finance Minister
then it would necessarily mean that the initial approval of the
charge sheet has to be sanctioned by the said minister only.
It was further submitted that acceptance of the stand of the
appellant that approval granted to initiation of proceedings
includes approval to the charge-memo would lead to the
position where the charge memo would get approval even
before it has come into existence.
23.
Mr. Patwalia further submitted that the issue in the
present case has already been decided by this Court in
Steel Authority of India, Successor of Bokaro Steel Ltd.
Vs. Presiding Officer, Labour Court at Bokaro Steel City,
Dhanbad & Anr.13 It was also submitted that since the law
laid down in the aforesaid case is in the favour of the present
13
1980 (3) SCC 734

Respondents, the present appeals are liable to be
dismissed.
24.
Mr. Patwalia has also submitted that the appellants,
in the application for condonation of delay in filing of the
present appeals, contended that the ASG recommended that
this is not a fit case for filing the SLP. Thus, the Civil Appeals
are liable to be dismissed on this ground as well. The
learned senior counsel also submitted that the Appellants
have already accepted the judgment of CAT and the High
Court since the Finance Minister is now approving the
charge-sheets. Further, it was submitted that after receiving
information upon a RTI query, it was disclosed that the
Finance Minister approved the fresh charge sheet in the
case of the Respondent in
SLP No.
6348/2001. Thus, filing of the present appeals is nothing but
an ‘academic exercise.’
25.
Mr. Patwalia countered the submission of the
learned ASG that it will not be in the interest of good
administration to drop the inquiries which are already going

on if the charge-sheets issued in such inquiries are required
to be approved by the Finance Minister. In this context, it
was submitted that such a contention has already been
rejected by this court in Coal India Ltd. & Ors. Vs. Saroj
Kumar Mishra.14 Our attention was also drawn to the
following excerpt from the said case:
“the floodgate argument also does not appeal to
us.The same appears to be an argument of
desperation. Only because, there is a possibility of
floodgate litigation, a valuable right of a citizen
cannot be permitted to be taken away. This court is
bound to determine the respective rights of the
parties.”
Thus, it was submitted that the Civil Appeals
are required to be dismissed.
26.
Similar submissions were also reiterated by Mr.
Brijender Chahar, learned senior advocate. Besides, learned
senior counsel submitted that the fact that respondent in
SLP (Civil) No. 26939 of 2011 belongs to Indian Revenue
Service would concomitantly mean that the President of
India is the appointing authority and thereby, Disciplinary
Authority in his case. However, the said power of the

2007 (9) SCC 625

President has been delegated under Article 77 (3) of the
Constitution and by the order of the President dated 14 th
January, 1961 under the Government of India (Allocation of
Business) Rules, to the Finance Minister. Thus, the Finance
Minister acts as the Disciplinary authority for the purposes of
Article 311 of the Constitution and Rule 14 of CCS (CCA)
Rules. Therefore, the Finance Minister, himself, has to apply
his mind and give approval inter alia to the charge sheet. It
was further submitted that matters pertaining to any such
disciplinary action cannot be further delegated or sub-
delegated to any other authority as the President has
delegated this authority only to the Finance Minister.
27.
Relying on Rule 14 of CCS (CCA) Rules, learned
senior counsel submitted that the rule contemplates a
detailed procedure, consisting of four stages, which has to
be completed before any punishment can be imposed on a
public servant. These steps are :
(i)
Initiation of Disciplinary proceedings for major
penalties;
(ii)
drawing up of charges of misconduct;

(iii)
appointment of Inquiry Officer & Presenting
Officer and to supervise fair conducting of
inquiry by the Inquiry Officer;
(iv)
imposition of penalty, if any.
All the above procedures have been elaborated in
provisions of Rule 14 of Central Civil Services (Classification,
Control & Appeal) Rules, 1965, which require an independent &
unbiased application of mind and approval, directly by the
Finance Minister and not by any other subordinate Authority.
28.
Learned senior counsel also submitted that the
drawing up charges of misconduct and issuance/service of
charge memo is a crucial function for conducting an inquiry,
which require the independent & unbiased application of
mind and approval, directly and solely by the Finance
Minister and not by any other subordinate Authority.
29.
According to the learned senior counsel, the most
important issue to be decided by this Court is that whether
the stage of initiating Disciplinary Proceedings is the same
as issuing a charge sheet/charge memo? A plain reading of

Rule 14(2) and Rule 14(3) of the Central Civil Services
(Classification, Control & appeal) Rules, 1965 makes it
amply clear and the only interpretation possible is that the
stage of initiating the disciplinary proceedings U/Rule 14(2)
is distinct and separate from issuing a charge memo U/Rule
14(3) and it is not a continuing act because it is not
necessary that every disciplinary proceeding initiated would
definitely result in issuing a charge memo because after
initiating disciplinary proceedings it may be found from the
material on record that, the memo of charge need not be
served because the charges may not be made out or a
lesser charge could be made out. Mind has to be applied to
the evidence and material on record pursuant to initiation of
disciplinary proceedings to again come to a fresh decision as
to whether now, a charge memo deserves to be issued.
Thus, the material before the Disciplinary authority is
different at both the stages of Rule 14(2) and Rule 14(3) of
the Central Civil Services (Classification, Control & Appeal)
Rules, 1965.

30.
Learned senior counsel submitted that the appellant
has not denied and in fact accepted that the Charge Memo
dated 1st April, 2008 was not approved by the Finance
Minister and as such, there was no application of mind by
the Finance Minister. Therefore, CAT has rightly quashed
the said charge memo.
31.
It was further submitted that under the relevant
rules, only ancillary actions relating to the issue of charge
sheet may be undertaken by a subordinate authority, but the
framing of charge sheet requires independent/unbiased
application of mind and therefore, Finance Minister has to
give approval to the charge memo.
32.
Learned senior counsel reiterated that once the
disciplinary powers have been delegated by the President of
India under Article 77 (3) of the Constitution to the Finance
Minister, then such delegated authority cannot be re-
delegated/sub-delegated
by
the
Disciplinary
Authority,
unless statute/ constitution provides for the same. In this
context, reliance was placed on Sahni Silk Mills (P) Ltd.&

Anr. Vs. E.S.I. Corporation15 and Director General, ESI &
Anr. Vs. T.Abdul Razak.16
33.
Learned senior Counsel further submitted that the
provisions of Rule 14 (2) of CCS (CCA) Rules are separate
provisions. In case, the approval of the Finance Minister is
taken only for provision of Rule 14 (2) and no approval is
taken for acting under Rule 14(3), then the provision of Rule
14(3) would be rendered redundant and obsolete. Such a
position, he submits, would mean as if no charges were ever
framed by the Disciplinary Authority.
34.
It was further submitted that the charges were
framed only on the basis of the recommendations of CBI,
which is not the recommending authority as per the CCS
(CCA) Rules.
35.
Mr. Shekhar Kumar, learned counsel, submitted that
the contention of the learned ASG that no prejudice would
be caused to the Respondent is premised on an incorrect


1994 (5) SCC 346
(1996) 4 SCC 708

notion. Learned counsel further submitted that since the
intention of the Government is manifest in the office order
No. 205 of 2005, the said order has to be complied with
strictly, irrespective of the fact whether prejudice is shown to
be caused to the Government Servant or not.
36. It was also submitted that the charge memo drawn by an
officer other than the specified authority was wholly without
jurisdiction and hence, vitiated the whole disciplinary
enquiry. Reliance was placed on Government of Andhra
Pradesh Vs. M.A. Majeed & Anr.17 It was also submitted
that where a statutory authority is required do something in a
particular manner, the same must be done in that manner
only. The State and other authorities, while acting under the
statute, are the creatures of the statue and they must act
with in the four corners of the statute. Learned counsel relied
on Bhavnagar University Vs. Palitana Sugar Mill (P) Ltd.
& Ors.18

(2006) 1 ALD 823: (2006) 1 ALT 661
(2003) 2 SCC 111

37.
Lastly, it was submitted that a charge sheet can be
subjected to judicial review on the ground that it has been
issued by an incompetent authority. Ld. Counsel relied on
Samaraditya Pal, Law Relating to Public Service: A treatise
on
the
law
applicable
to
Government
and
Public
Undertaking, third Edition (2011) Pgs. 761, 767.
38.
We have considered the elaborate submissions
made by the learned counsel for the parties.
39.
Article 311(1) of the Constitution of India ensures
that no person who is a member of a civil service of the
Union or an all India service can be dismissed or removed
by an authority subordinate to that by which he was
appointed. The overwhelming importance and value of
Article 311(1) for the civil administration as well as the public
servant has been considered stated and re-stated, by this
Court in numerous judgments, since the Constitution came
into effect
on 19 th January, 1950. Article 311(2)
ensures that no civil servant is dismissed or reduced in rank
except after an inquiry held in accordance with the rules of

natural justice. To effectuate the guarantee contained in
Article 311(1) and to ensure compliance with the mandatory
requirements of Article 311(2), the Government of India has
promulgated CCS (CCA) Rules, 1965.
40.
Disciplinary proceedings against the respondent
herein were initiated in terms of Rule 14 of the aforesaid
Rules. Rule 14(3) clearly lays down that where it is proposed
to hold an inquiry against a government servant under Rule
14 or Rule 15, the disciplinary authority shall draw up or
cause to be drawn up the charge sheet. Rule 14(4) again
mandates that the disciplinary authority shall deliver or
cause to be delivered to the government servant, a copy of
the articles of charge, the statement of the imputations of
misconduct or misbehaviour and the supporting documents
including a list of witnesses by which each article of charge
is proposed to be proved. We are unable to interpret this
provision as suggested by the Additional Solicitor General,
that once the disciplinary authority approves the initiation of
the disciplinary proceedings, the charge sheet can be drawn
up by an authority other than the disciplinary authority. This

would destroy the underlying protection guaranteed under
Article 311(1) of the Constitution of India. Such procedure
would also do violence to the protective provisions contained
under Article 311(2) which ensures that no public servant is
dismissed, removed or suspended without following a fair
procedure in which he/she has been given a reasonable
opportunity to meet the allegations contained in the charge
sheet. Such a charge sheet can only be issued upon
approval by the appointing authority i.e. Finance Minister.
41.
In fact, issuance of the office order No.205
dated 19th July, 2005 makes it evident that the respondents
were aware of the legal position. The office order clearly sets
out the levels of the decision making authorities depending
on the gravity of the consequences that would have to be
faced by a delinquent public servant in case the decision is
taken to proceed against the public servant. Clause (1) deals
with
closure
of
complaints
which
are
anonymous/pseudonymous; if the decision is taken to close
the complaint it can be taken by the CVO. But in case of
verifiable facts, the complaints have to be referred to the

next level of hierarchy CVB (Central Vigilance Bureau). For
placing an officer under suspension, the decision has to be
taken by the Finance Minister himself. Even review of
suspension at quarterly/half yearly interval rests with the
Finance Minister. This is so, as suspension during
contemplation/pendency of enquiry, though may not be
penal in nature per se, still has very serious adverse
consequences on the professional as well as the personal
life of the officer suspended. The office order recognizing the
gravity of the consequences ensures that the decision in
relation to suspension/review of suspension shall be taken
by the highest authority in the department i.e. the Finance
Minister. In matters related to reference to CVC for first
stage advice, the competent authority is the Secretary
(Revenue). Similarly, for reconsideration of CVC’s first stage
advice, again the competent authority is the Secretary
(Revenue), but in case of disagreement with CVC’s first
stage advice on approval for referring the case to
Department of Personal and Training, the competent
authority is the Finance Minister.

42.
Clause (8) of the Circular makes it abundantly clear
that it relates to approval for issuing charge memo/sanction
of prosecution. A plain reading of the aforesaid clause shows
that it relates to a decision to be taken by the disciplinary
authority as to whether the departmental proceedings are to
be initiated or prosecution is to be sanctioned or both are to
commence simultaneously. The competent authority for
approval of the charge memo is clearly the Finance Minister.
There is no second authority specified in the order. We do
not agree with Ms. Indira Jaising, learned Additional Solicitor
General that the use of the word “approval of” is not an
expression distinct from “approval for” initiating major penalty
proceedings. Under Clause (9), the department firstly puts
up the file before the Finance Minister seeking “approval for
issuing
charge
memo/sanction
of
prosecution.”
The
department is seeking an order as to whether the officer is to
be
proceeded
against
departmentally
or
criminal
proceedings are to be initiated or both proceedings are to be
commenced simultaneously. When the decision is taken by
the Finance Minister that the departmental proceedings are
to be held (initiation), only then the question of approval of

charge memo arises. The department would thereafter
complete the necessary formalities and then place the file
before the Finance Minster, for “approval of” charge memo.
This provision is in harmony with the mandate contained
under Articles 311(1) and (2) that no civil servant shall be
dismissed or removed by an authority subordinating to that
by which he was appointed. The second limb of the same
direction is that punishment on a public servant of dismissal,
removal or reduction in rank can only be imposed when the
charges have been proved against him in a departmental
enquiry held in accordance with the rules of natural justice.
Rule 14 of the CCS (CCA) Rules provides for holding a
departmental enquiry in accordance with the provisions
contained in Article 311(2) of the Constitution of India.
Clause (8) also makes it clear that when the Finance
Minister is approached for approval of charge memo,
approval for taking ancillary action such as appointing an
inquiry officer/presiding officer should also be taken. Clause
(9) in fact reinforces the provisions in clause (8) to the effect
that it is the Finance Minster, who is required to approve the
charge memo. Clause (9) relates to a stage after the

issuance of charge sheet and when the charge sheeted
officer has submitted the statement of defence. It provides
that in case the charge sheeted officer simply denies the
charges, CVO will appoint an inquiry officer/presiding officer.
In case of denial accompanied by
representation, the
Chairman is to consider the written statement of defence. In
case the Chairman comes to a tentative conclusion that
written statement of defence has pointed out certain issues
which may require modification/amendment of charges then
the file has to be put up to the Finance Minster. So the
intention is clearly manifest that all decisions with regard to
the approval of charge memo, dropping of the charge memo,
modification/amendment of charges have to be taken by the
Finance Minister.
43.
Accepting the submission of Ms. Indira Jaising
would run counter to the well known maxim delegatus non
protest delegare (or delegari). The principle is summed up
in “Judicial Review of Administrative Action” De Smith, Woolf
and Jowell (Fifth Edition) as follows:-
“The rule against delegation

A discretionary power must, in general, be
exercised only by the authority to which it has been
committed. It is a well-known principle of law that
when a power has been confided to a person in
circumstances indicating that trust is being placed in
his individual judgment and discretion, he must
exercise that power personally unless he has been
expressly empowered to delegate it to another.”
The same principle has been described in “Administrative
Law” H.W.R. Wade & C.F. Forsyth (Ninth Edition), Chapter 10,
as follows:-
“Inalienable discretionary power
An element which is essential to the lawful exercise
of power is that it should be exercised by the
authority upon whom it is conferred, and by no one
else. The principle is strictly applied, even where it
causes administrative inconvenience, except in
cases where it may reasonably be inferred that the
power was intended to be delegable. Normally the
courts are rigorous in requiring the power to be
exercised by the precise person or body stated in
the statute, and in condemning as ultra vires action
taken by agents, sub-committees or delegates,
however expressly authorized by the authority
endowed with the power.”
44.
This principle has been given recognition in Sahni
Silk Mills (P) Ltd. (supra), wherein it was held as under:
“6. By now it is almost settled that the legislature
can permit any statutory authority to delegate its
power to any other authority, of course, after the
policy has been indicated in the statute itself within

the framework of which such delegatee (sic) is to
exercise the power. The real problem or the
controversy arises when there is a sub-delegation. It
is said that when Parliament has specifically
appointed authority to discharge a function, it
cannot be readily presumed that it had intended that
its delegate should be free to empower another
person or body to act in its place.”
45.
Much was sought to be made by Ms. Indira Jaising
on clause (10) of the order which provides that once the
Finance Minister has approved the initiation of departmental
proceedings, the ancillary action can be initiated by the
CVO. According to the learned Addl. Solicitor General, the
decision taken by the Finance Minister would also include
the decision for approval of charge memo. She pointed out
the
procedure
followed
for
initiation
of
penalty
proceedings/disciplinary proceedings. She submitted that the
decision to initiate disciplinary proceedings is based on a
Satisfaction Memo prepared by the CVO. This satisfaction
memo is submitted to the Member (P&V), Central Board of
Direct Taxes, New Delhi who after being satisfied that the
memo is in order, forwards it to the Chairman, CBDT who in
turn, upon his own satisfaction forwards it to Secretary

(Revenue) and finally to the Finance Minister. Based on the
satisfaction memo, the Finance Minister, who is the
disciplinary authority in this case, takes the decision to
initiate disciplinary proceedings. While taking the said
decision, the Finance Minister has before him, the details of
the alleged misconduct with the relevant materials regarding
the imputation of allegations based on which the charge
memo was issued. Therefore, approval by the Finance
Minister for initiation of the departmental proceedings would
also cover the approval of the charge memo. We are unable
to accept the submission of the learned Addl. 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
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. In our opinion, the Central Administrative Tribunal
as well as the High Court has correctly interpreted the
provisions of the Office Order No. 205 of 2005. Factually
also, a perusal 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 Rule 3(1)(i) and
(3) (1) (iii) of the Central Civil Services (Conduct) Rules
against the officers mentioned in the note which included the
appellant 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.

46.
Ms. Indira Jaising also submitted that the purpose
behind Article 311, Rule 14 and also the Office Order of
2005 is to ensure that only an authority that is not
subordinate to the appointing authority takes disciplinary
action and that rules of natural justice are complied with.
According to the learned Addl. Solicitor General, the
respondent is not claiming that rules of natural justice have
been violated as the charge memo was not approved by the
disciplinary authority. Therefore, according to the Addl.
Solicitor General, the CAT as well as the High Court erred in
quashing the charge sheet as no prejudice has been caused
to the respondent. In our opinion, the submission of the
learned Addl. Solicitor General is not factually correct. The
primary submission of the respondent was that the charge
sheet not having been issued by the disciplinary authority is
without authority of law and, therefore, non est in the eye of
law. This plea of the respondent has been accepted by the
CAT as also by the High Court. The action has been taken
against the respondent in Rule 14(3) of the CCS(CCA) Rules
which enjoins the disciplinary authority to draw up or cause
to be drawn up the substance of imputation of misconduct or

misbehaviour into definite and distinct articles of charges.
The term “cause to be drawn up” does not mean that the
definite and distinct articles of charges once drawn up do not
have to be approved by the disciplinary authority. The term
“cause to be drawn up” merely refers to a delegation by the
disciplinary authority to a subordinate authority to perform
the task of drawing up substance of proposed “definite and
distinct articles of charge sheet”. These proposed articles of
charge would only be finalized upon approval by the
disciplinary authority. Undoubtedly, this Court in the case of
P.V.Srinivasa Sastry & Ors. Vs. Comptroller and Auditor
General & Ors.19 has held that Article 311(1) does not say
that even the departmental proceeding must be initiated only
by the appointing authority. However, at the same time it is
pointed out that “However, it is open to Union of India or a
State Government to make any rule prescribing that even
the proceeding against any delinquent officer shall be
initiated by an officer not subordinate to the appointing
authority.” It is further held that “Any such rule shall not be
inconsistent with Article 311 of the Constitution because it
19
1993 (1) SCC 419

will amount to providing an additional safeguard or protection
to the holders of a civil post.”
47.
Further, it appears that during the pendency of
these proceedings, the appellants have, after 2009,
amended the procedure which provides that the charge
memo shall be issued only after the approval is granted by
the Finance Minister.
48.
Therefore, it appears that the appeals in these
matters were filed and pursued for an authoritative resolution
of the legal issues raised herein.
49.
Although number of collateral issues had been
raised by the learned counsel for the appellants as well the
respondents, we deem it appropriate not to opine on the
same in view of the conclusion that the charge sheet/charge
memo having not been approved by the disciplinary authority
was
non est in the eye of law.

50.
For the reasons stated above, we see no merit in
the appeals filed by the Union of India. We may also notice
here that CAT had granted liberty to the appellants to take
appropriate action in accordance with law. We see no
reasons to disturb the liberty so granted. The appeals are,
therefore, dismissed.
...............................J.
[Surinder Singh Nijjar]
..............................J.
[M.Y.Eqbal]
New Delhi;
September 05, 2013.
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