SUNNY ABRAHAMversusUNION OF INDIA & ANR.

892                       [2021]
               SUPREME COURT     9 S.C.R. 892
                              REPORTS                       [2021] 9 S.C.R.


A                             SUNNY ABRAHAM
                                        v.
                          UNION OF INDIA & ANR.
                         (Civil Appeal No. 7764 of 2021)
B
                             DECEMBER 17, 2021
         [ L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
             Central Civil Services (Classification, Control and Appeal)
C     Rules, 1965 – r.14(2), (3) – Disciplinary proceeding initiated against
      the appellant-Asstt. Commissioner of Income Tax with the approval
      of the Disciplinary Authority-the Finance Minister – However,
      charge memorandum issued to the appellant was not approved by
      the Finance Minister – Approved ex-post facto – Appellant was
      informed through an Office Memorandum – Office Memorandum
D     quashed by CAT, liberty granted to department to issue fresh
      memorandum of charges u/r.14 – Order set aside by High Court –
      Held: While construing r.14(2), (3) which is applicable in the present
      case, a Co-ordinate Bench of Supreme Court in the Union of India
      and Ors. vs. B.V. Gopinath reported as [2013] 14 SCR 185 held that
E     charge memorandum not having approval of the Disciplinary
      Authority would be non-est in the eye of the law – Thus, absence of
      the expression “prior approval” in r.14 would not have any impact
      so far as the present case is concerned – Further, sub-clauses (2)
      and (3) of r.14 contemplate independent approval of the Disciplinary
      Authority at both stages- for initiation of enquiry and also for
F     drawing up or to cause to be drawn up the charge memorandum –
      In the event the requirement of sub-clause (2) is complied with, not
      having the approval at the time of issue of charge memorandum u/
      sub- clause (3) would render the charge memorandum fundamentally
      defective, not capable of being validated retrospectively – Judgment
G     of High Court set aside while that of CAT is restored with modification
      on operational part, as directed – Income Tax Act, 1961 – s.133A –
      All India Services (Discipline and Appeal) Rules, 1969 – Service
      Law.
            Words & Expressions – “non est” – Meaning of – Discussed.
H
                                       892
       SUNNY ABRAHAM v. UNION OF INDIA & ANR.                         893


      Allowing the appeal, the Court                                  A
      HELD : 1.1 The High Court considered the fact that in the
case of B.V. Gopinath, the proceeding stood concluded whereas
in the appellant’s case, it was still running when ex-post facto
approval was given. That was the point on which the ratio of B.V.
Gopinath was distinguished by the High Court. The absence of          B
the expression “prior approval” in the aforesaid Rule would not
have any impact so far as the present case is concerned as the
same Rule has been construed by this Court in the case of B.V.
Gopinath and it has been held that chargesheet/charge
memorandum not having approval of the Disciplinary Authority
would be non est in the eye of the law. [Paras 10, 11][904-C-E]       C

      Union of India and Ors. vs. B.V. Gopinath [(2014) 1
      SCC 351 : [2013] 14 SCR 185 – relied on.
       1.2 Now the question arises as to whether concluded
proceeding (as in the case of B.V. Gopinath) and pending              D
proceeding against the appellant is capable of giving different
interpretations to the said Rule. The High Court’s reasoning,
referring to the notes on which approval for initiation of
proceeding was granted, is that the Disciplinary Authority had
taken into consideration the specific charges. The ratio of the
judgments in the cases of Ashok Kumar Das and Bajaj Hindustan         E
Limited, do not apply in the facts of the present case. Because
these authorities primarily deal with the question as to whether
the legal requirement of granting approval could extend to ex-
post facto approval, particularly in a case where the statutory
instrument does not specify taking of prior or previous approval.     F
It is a fact that in the Rules concerned in the present case, there
is no stipulation of taking “prior” approval. But since this very
Rule has been construed by a Coordinate Bench to the effect
that the approval of the Disciplinary Authority should be there
before issuing the charge memorandum, the principles of law
enunciated in the aforesaid two cases, that is Ashok Kumar Das        G
and Bajaj Hindustan Limited would not aid the respondents. The
distinction between the prior approval and approval simplicitor
does not have much impact so far as the status of the subject
charge memorandum is concerned. [Para 11][904-F-H; 905-A-
B]                                                                    H
894            SUPREME COURT REPORTS                      [2021] 9 S.C.R.


A           Ashok Kumar Das and Others vs. University of Burdwan
            and Others [(2010) 3 SCC 616 : [2010] 3 SCR 429;
            Bajaj Hindustan Limited vs. State of Uttar Pradesh and
            Others [(2016) 12 SCC 613 : 2016 (3 ) SCALE 669 –
            held inapplicable.
B           State of Tamil Nadu vs. Promod Kumar, IPS and
            Another [(2018) 17 SCC 677 : 2018 AIR 4060 –
            relied on.
             1.3 The next question is as to whether there would be any
      difference in the position of law in this case vis-à-vis the case of
C     B.V. Gopinath. 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. The term non est conveys the
      meaning of something treated to be not in existence because of
D     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
E     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
F     India) in complying with the requirement of sub-clause (3) of Rule
      14 of CCS (CCA), 1965. 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
G     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 charge memorandum
      fundamentally defective, not capable of being validated
      retrospectively. What is non-existent in the eye of the law cannot
      be revived retrospectively. The approval for initiating disciplinary
H
       SUNNY ABRAHAM v. UNION OF INDIA & ANR.                           895


proceeding and approval to a charge memorandum are two                  A
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
                                                                        B
at the initial stage. [Para 12][905-C-H; 906-A-B]
      1.4 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.        C
The judgment of the High Court is set aside and that of the
Principal Bench of the Central Administrative Tribunal is restored
subject to certain modification on operational part of it. The
proceeding against the appellant relates to an incident alleged to
have taken place in the year 1998 and the proceeding was initiated      D
in the year 2002, 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. [Paras 14-16][907-E-F, G-H; 908-A]                      E

                       Case Law Reference
[2013] 14 SCR 185              relied on               Para 2
[2010] 3 SCR 429               held inapplicable       Para 8
                                                                        F
      CIVIL APPELLATE JURISDICTION : Civil Appeal No.7764
of 2021.
      From the Judgment and Order dated 25.08.2017 of the High Court
of Delhi at New Delhi in Writ Petition (Civil) No.7649 of 2015.
      Shanker Raju, Aditya Ranjan, Advs. for the Appellant.             G
      Jayant K. Sud. ASG, Arijit Prasad, Sr. Adv., Rupesh Kumar,
Niranjana Singh, Ms. Aakansha Kaul, Raj Bahadur Yadav, Advs. for the
Respondents.

                                                                        H
896             SUPREME COURT REPORTS                             [2021] 9 S.C.R.


A            The Judgment of the Court was delivered by
             ANIRUDDHA BOSE, J.
             1. Leave granted.
             2. The appellant before us, at the material point of time was an
B     Assistant Commissioner of Income Tax. The authorities issued a
      memorandum of charges (charge memorandum) proposing to hold an
      inquiry against him on 18th November, 2002 for major penalty under
      Rule 14 of the Central Civil Services (Classification, Control and Appeal)
      Rules, 1965. Disciplinary proceeding was initiated against him on 19th
      September, 2002. Allegation against him was that while functioning as
C
      an Income Tax Officer in Surat during the year 1998, he, in collusion
      with a Deputy Commissioner of Income Tax, had conducted a survey
      under Section 133A of the Income-Tax Act, 1961 in five proprietary
      group concerns of one Mukeshchandra Dahyabhai Gajiwala and his
      family and demanded a sum of rupees five lacs other than legal
D     remuneration from the said individual through his advocate for settling
      the matter. It was further alleged in the articles of charge that he, alongwith
      the said Deputy Commissioner, had demanded a sum of rupees two lacs
      other than legal remuneration from the same individual and later on, the
      Deputy Commissioner Shri K.K. Dhawan accepted the said amount.
      Disciplinary proceeding was initiated against the appellant with the
E
      approval of the Disciplinary Authority-the Finance Minister on 19th
      September, 2002. On 18th November, 2002, charge memorandum was
      issued to the appellant. This charge memorandum was however not
      specifically approved by the Finance Minister. Enquiry officer was
      appointed, who submitted his report on 13th July, 2007 and the Central
F     Vigilance Commission (CVC) concurred with the findings of the enquiry
      officer and appellant was served with both the reports and advice of the
      CVC. Till the time of filing of the O.A. No. 1157 of 2014 before the
      Principal Bench of the Central Administrative Tribunal (CAT), the
      appellant instituted several proceedings, mainly on procedural irregularities
      in CAT as well as the High Court. We, however, do not consider it
G
      necessary to refer to all of them in this judgment. Earlier, in one decision
      of the CAT, Principal Bench delivered on 5th February, 2009 in O.A. No.
      800 of 2008 (B.V. Gopinath vs. Union of India) it was held, while
      examining the same Rule, that in absence of the approval of the charges
      by the competent authority, further proceedings in the disciplinary case
H     could not be sustained. This view has been ultimately upheld by this
        SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                   897
                 [ANIRUDDHA BOSE, J.]

Court in a judgment delivered by a Coordinate Bench in the case of               A
Union of India and Ors. vs. B.V. Gopinath [(2014) 1 SCC 351] on
5th September, 2013. The ratio of this decision constitutes the sheet anchor
of the appellant’s case. We shall deal with that aspect of the appellant’s
case later in this judgment.
        3. Relying on the B.V. Gopinath (supra) case decided by the              B
CAT, the appellant had approached the same forum with O.A. No. 344
of 2012 for quashing the charge memorandum. The Tribunal disposed of
that application giving liberty to the appellant to raise the point before the
Disciplinary Authority. The said order specified that the appellant could
approach the Tribunal again if adverse order was passed. Representation
                                                                                 C
of the appellant to the Disciplinary Authority on this count does not appear
to have had been considered at that point of time, which prompted the
appellant to bring another action before the Tribunal. This application of
the appellant (O.A. No. 1047 of 2012) was disposed of on 30 th April,
2012 with a direction upon the authorities to dispose of the pending enquiry
within three months. The appellant’s request for quashing the charges            D
was ultimately turned down on the ground that the petition for Special
Leave to Appeal was pending before this Court against the order of the
CAT in the case of B.V. Gopinath (supra). Another application of the
appellant (O.A. No. 2286 of 2012) before the Tribunal was dismissed as
withdrawn giving liberty to the appellant to give detailed representation
                                                                                 E
on reply to the inquiry report and CVC advice, which were directed to
be disposed of by a reasoned and speaking order.
      4. The appellant continued to file different applications and
representations on the strength of the decision of this Court in the case
of B.V. Gopinath (supra). By an Office Memorandum dated 23 rd
                                                                                 F
January, 2014, the appellant was informed that the charge memorandum
dated 18th November, 2002 had been duly approved by the Disciplinary
Authority and the proceedings could continue from the stage where it
stood before the charge memorandum dated 18th November, 2002 was
formally approved. This Office Memorandum reads:-
                       “F.No.C-14011/10/99-V&L                                   G
                          Government of India
                           Ministry of Finance
                        Department of Revenue
                      Central Board of Direct Taxes
                           New Delhi-110001                                      H
898      SUPREME COURT REPORTS                         [2021] 9 S.C.R.


A                                             Dated: 23rd January, 2014
                     OFFICE MEMORANDUM
      WHEREAS, disciplinary proceedings under Rule 14 of the CCS
      (CCA) Rules, 1965 were initiated against Shri Sunny Abraham,
      ACIT with the approval of the Disciplinary Authority on 10.9.2002
B
      and consequently a Memorandum from F.No.C-14011/10/99-V&L
      dated 18.11.2002 was issued to him.
      WHEREAS, in view of the judgment dated 5th September 2013
      of the Supreme Court in the case of Union of India Vs. B.V.
      Gopinath & others (SLOP No.6348 of 2009), the Memorandum
C
      from F.No.C-14011/10/99-V&L dated 18.11.2002 issued to Shri
      Sunny Abraham, ACIT was placed before the Disciplinary
      Authority, who after examining the facts and circumstances of
      the case, has accorded approval to the same on 8.1.2014.
      AND WHEREAS, the Disciplinary Authority has also approved
D
      continuation of disciplinary proceedings from the stage where the
      proceedings stood before the Charge Memorandum F.No.C-14011/
      10/99-V&L dated 18.11.2002 was formally approved by the
      Disciplinary Authority.
      NOW THEREFORE, Shri Sunny Abraham, ACIT is hereby
E
      informed that he Charge Memorandum F.No.C-14011/10/99-V&L
      dated 18.1.2002 has been duly approved by the Disciplinary
      Authority and that the disciplinary proceedings in the matter would
      continue from the stage where the proceedings stood before the
      Charge Memorandum F.No.C-14011/10/99-V&L dated
F     18.11.2002 was formally approved by the Disciplinary Authority.
      (By order and in the name of the President of India)
                                                                    Sd/-
                                               (Dr. Prashant Rhambra)
G
                         Under Secretary to the Government of India”
      (quoted verbatim from the copy of the judgment as reproduced in
      the paperbook)

H
       SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                  899
                [ANIRUDDHA BOSE, J.]

       5. This Office Memorandum was quashed by the Principal Bench            A
of the CAT on 20th April, 2015 in O.A. No. 1157 of 2014 brought by the
appellant. View of the Principal Bench of the CAT was that such approval
could not have been granted ex-post facto. The approval was sought to
be given on 8th January, 2014 to a charge memorandum dated 18th
November, 2002. Liberty was granted to the authorities to issue a fresh
                                                                               B
memorandum of charges under the aforesaid Rule 14. Union of India
invoked the constitutional writ jurisdiction of the Delhi High Court
challenging the said decision of Principal Bench of the CAT.
      6. The applicable Rules of 1965 in this case are sub-clauses (2)
and (3) of Rule 14, which had earlier come up for interpretation in the
                                                                               C
case of B.V. Gopinath (supra). In the said case, a Coordinate Bench of
this Court had observed and opined:-
      “51. 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
                                                                               D
      authority takes disciplinary action and that rules of natural justice
      are complied with. According to the learned Additional Solicitor
      General, the respondent is not claiming that the rules of natural
      justice have been violated as the charge memo was not approved
      by the disciplinary authority. Therefore, according to the Additional
      Solicitor General, CAT as well as the High Court erred in quashing       E
      the charge-sheet as no prejudice has been caused to the
      respondent.
      52. In our opinion, the submission of the learned Additional Solicitor
      General is not factually correct. The primary submission of the
      respondent was that the charge-sheet not having been issued by           F
      the disciplinary authority is without authority of law and, therefore,
      non est in the eye of the law. This plea of the respondent has been
      accepted by 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
                                                                               G
      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
                                                                               H
900      SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     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 P.V.
      Srinivasa Sastry v. CAG [(1993) 1 SCC 419] has held that Article
B
      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: (SCC p. 422, para 4)
         “4. … However, it is open to the Union of India or a State
         Government to make any rule prescribing that even the
C
         proceeding against any delinquent officer shall be initiated by
         an officer not subordinate to the appointing authority.”
         It is further held that: (SCC p.422, para 4)
         “4. …Any such rule shall not be inconsistent with Article 311
D        of the Constitution because it will amount to providing an
         additional safeguard or protection to the holders of a civil post.”
      53. 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
E     only after the approval is granted by the Finance Minister.
      54. Therefore, it appears that the appeals in these matters were
      filed and pursued for an authoritative resolution of the legal issues
      raised herein.
      55. Although number of collateral issues had been raised by the
F
      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
      the law.
G
      56. 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.”
H
        SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                901
                 [ANIRUDDHA BOSE, J.]

       7. The Delhi High Court in the appellant’s case primarily examined     A
the issue as to whether having regard to the aforesaid Rules, a chargesheet
or charge memorandum could be given ex-post facto approval or not.
The main distinguishing feature between the case of the appellant and
that decided in B.V. Gopinath (supra) is that in the facts of the latter
judgment, the subject charge memorandum did not have the ex-post
                                                                              B
facto approval. Stand of the respondents is that there is no bar on giving
ex-post facto approval by the Disciplinary Authority to a charge
memorandum and so far as the present case is concerned, such approval
cures the defect exposed in Gopinath’s case. On behalf of the appellant,
the expression “non est” attributed to a charge memorandum lacking
approval of the Disciplinary Authority has been emphasized to repel the       C
argument of the respondent authorities.
      8. The respondents’ argument was accepted by the High Court
mainly on two counts. First, there was no ex-post facto approval to the
charge memorandum in Gopinath’s case. Approval implies ratifying an
action and there being no requirement in the concerned Rules for prior        D
approval, ex-post facto approval could always be obtained. On this point,
the cases of Ashok Kumar Das and Others vs. University of
Burdwan and Others [(2010) 3 SCC 616] and Bajaj Hindustan
Limited vs. State of Uttar Pradesh and Others [(2016) 12 SCC
613] are relevant. As regards the charge memorandum being declared
                                                                              E
non est, it was held by the High Court:-
      “26. However, question would arise whether this ratio would be
      applicable for as per the respondents as in B.V. Gopinath (supra),
      the Supreme Court has used the term “non est”. The expression
      non est can be used as non est inventus or non est factum,
                                                                              F
      which means a denial of the execution of an instruction sued upon.
      Non est inventus is a Latin phrase which means “he is not found”.
      [See Black’s Dictionary 8th Edition at page 1079-1980]. Indeed it
      could be argued that the use of the expression would indicate that
      the chargesheet was illegal and void for want of approval.”
                                                                              G
      (quoted verbatim from the copy of the judgment as reproduced in
      the paperbook)
      The cases of Ashok Kumar Das (supra) and Bajaj Hindustan
Limited (supra) were referred to for the proposition that the approval
includes ratifying an action, which obviously could be given ex-post facto.
                                                                              H
902           SUPREME COURT REPORTS                          [2021] 9 S.C.R.


A     The following passage from the case of Bajaj Hindustan Limited
      (supra) was quoted in the judgment under appeal:-
           “7. As is clear from the above, the dictionary meaning of the
           word “approval” includes ratifying of the action, ratification
           obviously can be given ex post facto approval. Another aspect
B          which is highlighted is a difference between approval and
           permission by the assessing authority that in the case of approval,
           the action holds until it is disapproved while in other case until
           permission is obtained. In the instant case, the action was approved
           by the assessing authority. The Court also pointed out that if in
           those cases where prior approval is required, expression “prior”
C
           has to be in the particular provision. In the proviso to sub-section
           (1) of Section 3-A word “prior” is conspicuous. For all these
           reasons, it was not a case for levying any penalty upon the
           appellant. We, therefore, allow this appeal and set aside the
           impugned judgment [Bajaj Hindustan Ltd. v. State of U.P., Misc.
D          Single No. 3088 of 1999, order dated 30-9-2004 (All)] of the High
           Court as well as the penalty. No order as to costs.”
           (quoted verbatim from the copy of the judgment as reproduced in
           the paperbook)
            9. The following passage from the case of Ashok Kumar Das
E
      (supra) has also been quoted in the judgment under appeal:-
           “11. In Black’s Law Dictionary (Fifth Edition), the word
           “approval” has been explained thus:
              “Approval. – The act of confirming, ratifying, assenting,
F             sanctioning, or consenting to some act or thing done by
              another.”
           Hence, approval to an act or decision can also be subsequent to
           the act or decision.
           12. In U.P. Avas Evam Vikas Parishad 1955 Supp. (3) SCC
G
           456, this Court made the distinction between permission, prior
           approval and approval. Para 6 of the judgment is quoted
           hereinbelow:
              “6. This Court in Life Insurance Corpn. of India v. Escorts
              Ltd. [(1986) 1 SCC 264], considering the distinction between
H
 SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                  903
          [ANIRUDDHA BOSE, J.]

   “special Permission” and “general permission”, previous               A
   approval” or “prior approval” in para 63 held that:
      “63….we are conscious that the word ‘prior’ or ‘previous’
      may be implied if the contextual situation or the object and
      design of the legislation demands it, we find no such
      compelling circumstances justifying reading any such               B
      implication into Section 29 (1) of the Act.”
Ordinarily, the difference between approval and permission is that
in the first case the action holds good until it is disapproved, while
in the other case it does not become effective until permission is
obtained. But permission subsequently granted may validate the           C
previous Act, it was stated in Lord Krishna Textiles Mills Ltd. v.
Workmen [AIR 1961 SC 860], that the Management need not
obtain the previous consent before taking any action. The
requirement that the Management must obtain approval was
distinguished from the requirement that it must obtain permission,
                                                                         D
of which mention is made in Section 33 (1).”
           XXX               XXX             XXX
15. The words used in Section 21 (xiii) are not “with the permission
of the State Government” nor “with the prior approval of the State
Government”, but “with the approval of the State Government”.            E
If the words used were “with the permission of the State
Government”, then without the permission of the State Government
the Executive council of the University could not determine the
terms and conditions of service of non-teaching staff. Similarly, if
the words used were “with the prior approval of the State
                                                                         F
Government”, the Executive Council of the University could not
determine the terms and conditions of service of the non-teaching
staff without first obtaining the approval of the State Government.
But since the words used are “with the approval of the State
Government”, the Executive Council of the University could
determine the terms and conditions of service of the non-teaching        G
staff and obtain the approval of the State Government subsequently
and in case the State Government did not grant approval
subsequently, any action taken on the basis of the decision of the
Executive council of the University would be invalid and not
otherwise.”
                                                                         H
904             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A           (quoted verbatim from the copy of the judgment as reproduced in
            the paperbook)
             10. As it has already been pointed out, the High Court sought to
      distinguish the case of B.V. Gopinath (supra) with the facts of the
      present case on the ground that in the case of the appellant, the
B     Disciplinary Authority had not granted approval at any stage and in the
      present case, ex-post facto sanction of the charge memorandum or
      chargesheet was given when the departmental proceeding was pending.
      The High Court found such approach to be practical and pragmatic,
      having regard to the fact that the departmental proceeding had remained
      pending in the case of the appellant and evidences had been recorded.
C
      The High Court thus considered the fact that in the case of B.V. Gopinath
      (supra), the proceeding stood concluded whereas in the appellant’s case,
      it was still running when ex-post facto approval was given. That was the
      point on which the ratio of B.V. Gopinath (supra) was distinguished by
      the High Court.
D
             11. We do not think that the absence of the expression “prior
      approval” in the aforesaid Rule would have any impact so far as the
      present case is concerned as the same Rule has been construed by this
      Court in the case of B.V. Gopinath (supra) and it has been held that
      chargesheet/charge memorandum not having approval of the Disciplinary
E     Authority would be non est in the eye of the law. Same interpretation
      has been given to a similar Rule, All India Services (Discipline and Appeal)
      Rules, 1969 by another Coordinate Bench of this Court in the case of
      State of Tamil Nadu vs. Promod Kumar, IPS and Another [(2018)
      17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now the
      question arises as to whether concluded proceeding (as in the case of
F
      B.V. Gopinath) and pending proceeding against the appellant is capable
      of giving different interpretations to the said Rule. The High Court’s
      reasoning, referring to the notes on which approval for initiation of
      proceeding was granted, is that the Disciplinary Authority had taken into
      consideration the specific charges. The ratio of the judgments in the
G     cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited
      (supra), in our opinion, do not apply in the facts of the present case. We
      hold so because these authorities primarily deal with the question as to
      whether the legal requirement of granting approval could extend to ex-
      post facto approval, particularly in a case where the statutory instrument
      does not specify taking of prior or previous approval. It is a fact that in
H
        SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                   905
                 [ANIRUDDHA BOSE, J.]

the Rules with which we are concerned, there is no stipulation of taking         A
“prior” approval. But since this very Rule has been construed by a
Coordinate Bench to the effect that the approval of the Disciplinary
Authority should be there before issuing the charge memorandum, the
principles of law enunciated in the aforesaid two cases, that is Ashok
Kumar Das (supra) and Bajaj Hindustan Limited (supra) would not
                                                                                 B
aid the respondents. The distinction between the prior approval and
approval simplicitor does not have much impact so far as the status of
the subject charge memorandum is concerned.
       12. 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        C
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              D
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            E
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.            F
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             G
having the approval at the time of issue of charge memorandum under
sub-clause (3) would render the charge 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,
                                                                                 H
906             SUPREME COURT REPORTS                           [2021] 9 S.C.R.


A     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
B
      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
C           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
D           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
E           the disciplinary authority to initiate penalty proceeding is
            comprehensive and involved decision making at every level of the
            hierarchy.”
            13. But this argument was repelled by the Coordinate Bench, as
      would be evident from the opinion of the Bench reflected in paragraphs
F     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
G           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
H
        SUNNY ABRAHAM v. UNION OF INDIA & ANR.                                907
                 [ANIRUDDHA BOSE, J.]

      in case of disagreement with the enquiry officer’s report; tentative    A
      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       B
      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 Rules      C
      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     D
      departmental proceedings would also amount to approval of the
      charge memo.”
       14. 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        E
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.
      15. For these reasons we set aside the judgment of the High Court       F
and restore the judgment of the Principal Bench of the Central
Administrative Tribunal delivered on 20th April, 2015 in O.A. No. 1157
of 2014 subject to certain modification on operational part of it, which
we express in the next paragraph of this judgment.
                                                                              G
       16. 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
                                                                              H
908            SUPREME COURT REPORTS                        [2021] 9 S.C.R.


A     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.
            17. The appeal is allowed in the above terms.

B           18. There shall be no orders as to costs.


      Divya Pandey                                             Appeal allowed.




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