High Court of KeralaDivision Bench2020-09-17Original Petition dismissed; Tribunal’s order c...

OP (CAT).No.127 OF 2020

Case / Petition Number:OP (CAT).No.127 OF 2020

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A.M. Shaffique
Gopinath P.
Judgment Date: 2020-09-17
Court Decision / Holding: The petition is dismissed; the High Court did not interfere with the Tribunal’s order, effectively upholding the Tribunal’s finding of procedural violation and the quashing of the charge memo, while noting that there is no ground to disturb the factual conclusions of the CAT.
Final Disposition: Original Petition dismissed; Tribunal’s order continues to stand, with no interference by the High Court.

Parties to the Case

Appellants / Petitioners

UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI
CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS, NEW DELHI
CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, COIMBATORE ZONE
COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS, MADURAI
CENTRAL VIGILANCE COMMISSION
SECRETARY, UNION PUBLIC SERVICE COMMISSION, NEW DELHI

Respondents

V.T.K.NAYANAR, AGED 64 YEARS, COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS (RETD.)
(Respondent in OA)

Legal Representation & Advocates

Counsels for Petitioners

• Shri P. Vijayakumar, ASG OF India

Counsels for Respondents

• Sri C.S. Gopalakrishnan Nair

Case Synopsis & Summary

This original petition under Article 227 of the Constitution and the Central Administrative Tribunal (CAT) challenge arises from the order dated 20-08-2019 in OA No.1078 of 2016 of the Ernakulam Bench. The OA was filed by the respondent Nayanar challenging a disciplinary action initiated against him. The CAT quashed the memo of charges on the ground of procedural violation, citing Clause (9) of the CCS (CCA) Rules and the Supreme Court decision in Union of India v. B.V. Gopinath (2014) 1 SCC 351. It held that the charge memo and further proceedings were non est and directed payment of all consequential benefits except interest. The Union of India and its officers petitioned the High Court challenging the Tribunal’s order, arguing that a disciplinary investigation should be allowed to proceed and that the courts should not ordinarily interfere with the department’s internal proceedings; They contended that the Finance Minister’s approval and due process under the CCS (CCA) Rules were essential and the Tribunal’s intervention would hamper the disciplinary process; The respondent argued that the memo served on 27.09.2013 at the end of the officer’s career, potentially mala fide, and that the Tribunal correctly found a procedural violation. The High Court, while acknowledging the requirement of proper procedure, ultimately dismissed the petition, holding that the Tribunal’s factual findings were well supported and that there was no valid ground to interfere.

Provisions of Law Cited

CCS (CCA) Rules, 1965Constitution of India Articles 311(1) and 311(2)

Legal Doctrines & Maxims

Principle of natural justice
Doctrine of natural justice

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioners contended that once disciplinary action is initiated a competent authority should be allowed to complete proceedings and interference by the court/Tribunal at the memo stage is unwarranted. They relied on the CCS (CCA) Rules, 1965 read with guidelines and the BV Gopinath decision, arguing that proper procedure including Finance Minister approval must precede charge memo and that quashing the memo at the inception would disrupt departmental proceedings. They asserted that the Tribunal’s quashing of the memo on a mere procedural finding undermines legitimate disciplinary action and that the court should generally refrain from terminating ongoing departmental enquiries.

Contentions of Respondents

The respondent contended that the memo of charges was issued at the fag end of the officer’s career, with apparent mala fides, and that the Tribunal correctly held a procedural violation. They argued the memo was non est due to lack of due process and that the court should not unduly bar the department from completing its enquiry, citing established principles and the need for fair procedure; they emphasized that the file’s rapid movement in 24 hours casts doubt on the procedural propriety.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Union of India v. B.V. Gopinath	2014 (1) SCC 351	Mentioned Only	Cited to explain the procedural framework and the role of pre-charge approvals; it was relied upon as supportive authority for asserting the need for proper procedure but is not treated as controlling in the present case.
Chairman, LIC of India v. A. Masilamani	2013 (6) SCC 530	Mentioned Only	Cited to underscore that courts should not generally set aside departmental enquiries; used as a general principle rather than a binding rule in this case.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **THURSDAY, THE 17TH DAY OF SEPTEMBER 2020 / 26TH BHADRA, 1942** **OP (CAT).No.127 OF 2020** **AGAINST THE ORDER/JUDGMENT IN OA NO.180/01078/2016 DATED 20-08-2019 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONERS/RESPONDENTS 1 TO 6 IN O.A.:** - **1 UNION OF INDIA REPRESENTED BY ITS SECRETARY, DEPARTMENT OF REVENUE, NORTH BLOCK, NEW DELHI - 110 001.** - **2 CHAIRMAN, CENTRAL BOARD OF EXCISE AND CUSTOMS NORTH BLOCK, NEW DELHI - 110 001.** - **3 CHIEF COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS COIMBATORE ZONE, 6/7 A.T.D.STREET, RACE COURSE, COIMBATORE - 641 018.** - **4 COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS CENTRAL REVENUE BUILDINGS, B. B. KULAM, MADURAI - 625 002.** - **5 CENTRAL VIGILANCE COMMISSION SATARKATA BHAVAN, BLOCK-A, GPO COMPLEX, INA, NEW DELHI - 110 023.** - **6 SECRETARY UNION PUBLIC SERVICE COMMISSION, DHOLPUR HOUSE, NEW DELHI - 110 069. BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA** OP (CAT).No.127 OF 2020 2 ## **RESPONDENT/APPLICANT IN O.A:** **V.T.K.NAYANAR, AGED 64 YEARS, S/O. SHRI M. P. NARAYANAN NAMBOODIRI, COMMISSIONER OF CENTRAL EXCISE AND CUSTOMS (RETD.), 2A, JOMER HAVEN APARTMENTS, ILLOM ROAD, PALIYAM ROAD CROSS, ERNAKULAM, COCHIN - 682 016.** ## **OTHER PRESENT:** ## **SRI. C.S.GOPALAKRISHNAN NAIR.** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 17.09.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP (CAT).No.127 OF 2020 3 ## JUDGMENT ## Shaffique, J The original petition has been filed by the Union of India and its officials challenging the order passed by the Central Administrative Tribunal in O.A.No.1078 of 2016. 2. The original application has been filed by the respondent herein challenging the disciplinary action initiated against him on certain charges. The contention urged by the applicant was that the charge memo had been issued with mala fide intention in order to victimize him without any basis, just three days prior to his retirement. The Tribunal having considered the entire matter found that there is clear case of procedural violation especially the mandate of Clause (9) of the guidelines as referred to in the judgment of the Apex Court in Union of India v. B.V.Gopinath (2014) 1 SCC 351 . Accordingly the memo of charges and further proceedings had been quashed and set aside. Direction has also been issued to pay all consequential benefits to the applicant, except the claim of interest. 3. The learned ASG appearing on behalf of the original petitioners contended that when a disciplinary action is taken OP (CAT).No.127 OF 2020 4 against a delinquent officer, necessarily the court or Tribunal should permit the appropriate authority to complete the proceedings. At a stage when memo of charges had been issued, the Tribunal was not justified in interfering with the same and to have declared it as non est. It is submitted that several charges were levelled against the delinquent officer and all these charges were required to be enquired by a competent authority. Therefore, an opportunity ought to be granted to the disciplinary authority to complete the disciplinary proceedings rather than setting aside the proceedings initiated against the delinquent officer. 4. We have heard the learned counsel appearing on behalf of the respondent as well. The learned counsel submits that there is justification on the part of the Tribunal in quashing the memo of charges on a finding that it is non est, when there is a clear procedural violation. He referred to the judgment of the Apex Court in B.V.Gopinath's case (cited supra), which of course has been extracted in the impugned order as well, and it is contended that the proceedings now initiated is a clear case of procedural violation. It is pointed out that when it was known that the applicant would retire OP (CAT).No.127 OF 2020 5 on 30.09.2013, he was served with a memo of charges on 27.09.2013. The very attempt on the part of the competent authority while issuing memo of charges at the fag end of his carreer, in respect of transactions which had taken place much earlier, itself amounts to mala fide action. That apart, when there is a clear finding that there is a procedural violation and that the Tribunal had arrived at such a finding, there is no reason for this Court to interfere in the matter while exercising power under Article 227 of the Constitution of India. 5. The memo of charges levelled against the applicant is reflected in Annexure-A1. Article-I relates to the proceedings in which an order had been passed by the delinquent officer in respect of two show cause notices dated 04.07.2001 and 26.03.2002. The proceedings were not initiated by the delinquent officer whereas he has only conducted an enquiry as a quasi judicial authority. The contention is that he had dropped the proceedings, which resulted in loss to the Revenue and therefore, disciplinary action has to be inititated against him. Apparently, this is a case in which the delinquent officer was exercising quasi judicial functions OP (CAT).No.127 OF 2020 6 and as against the order passed by him an appeal came to be filed, which was also rejected by the Appellate authority. According to the learned ASG the matter is still pending before the 2nd appellate authority. In Article-II, it is alleged that the applicant had transferred a Superintendent, without complying the procedural norms and the other allegation is that he had taken a travel from Madurai to Chennai in an aircraft, in violation of the norms. 6. In order to initiate the disciplinary action against the delinquent officer, necessarily the procedure that is required to be followed had been clearly mentioned in the CCS (CCA) Rules, 1965, read with the guidelines. 7. The Apex Court in B.V.Gopinath's case (cited supra) had taken note of clause (9) in the circular issued by the competent authority and had observed that, if any disciplinary action has to be initiated against the delinquent officer, initially the Finance Minister will have to approve whether departmental or criminal proceedings is to be initiated against the said officer. Once it is decided that the department proceedings can be initiated, then the charge memo has to be prepared and approved by the Finance OP (CAT).No.127 OF 2020 7 ## Minister. Paragraph No.44 of the B.V.Gopinath's case reads ## as under : 44.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 inititated 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 Minister, 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 enqiry held in accordance with the rules of natural justice. OP (CAT).No.127 OF 2020 8 8. The Tribunal, after verifying the records have come to a conclusion that the procedural requirement as aforesaid had not been complied with and therefore as held in B.V.Gopinath's case (cited supra) there is violation of Articles 311(1) and (2) of the Constitution of India. It is in the said circumstances that the Tribunal had arrived at a conclusion that the charge memo is non est and is liable to be set aside. 9. The learned ASG placed reliance on judgment of the Apex Court in Chairman, LIC of India and others v. A.Masilamani [(2013) 6 SCC 530] inorder to emphasise the point that the court/Tribunal shall not generally set aside the departmental enquiry and quash the charges and the authority should be permitted to complete the enquiry. There is no dispute against the law laid down in this regard. But this is a case in which the Tribunal after having considered the entire factual materials had arrived at a conclusion that there is procedural violation in issuing the memo of charges. It is pointed out that on a single day i.e., on 26.09.2013 all the recommendation of various officers were obtained and on 27.09.2013, the memo of charges had been served on the OP (CAT).No.127 OF 2020 9 delinquent officer. It is therefore apparent that the competent authority had hastily proceeded against the delinquent officer. As rightly pointed out by the counsel for respondent it is quiet impossible for a file to move so fast in order to initiate action against an officer within 24 hours. Taking into consideration all these facts, and as already mentioned, when the Tribunal had arrived at a decision based on factual materials and supported by a judgment of the Apex Court, we do not think that we should interfere with the said finding while exercising jurisdiction under Article 227 of the Constitution of India. 10. Under such circumstances, in the absence of any ground to interfere with the findings of the Tribunal, this original petition is dismissed. Sd/- A.M.SHAFFIQUE, JUDGE sd/GOPINATH P., JUDGE AMV/17/09/2020 OP (CAT).No.127 OF 2020 10 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.OA NO.180/1078/2016 FILED BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH BY THE APPLICANT. ANNEXURE A1 TRUE COPY OF CHARGE MEMO F.NO.C14011/38/2013 AD. V., DATED 27.09.2013. ANNEXURE A2 TRUE COPY OF THE LETTER DATED 30.09.2013 ADDRESSED TO THE 2ND RESPONDENT. ANNEXURE A3 TRUE COPY OF THE LETTER F. NO.C14011/38/2013 AD. V. DATED 09.10.2013. ANNEXURE A4 TRUE COPY OF THE LETTER NO.II/39/87/13 A3B1, DATED 05.12.2013 ISSUED BY THE COMMISSIONER OF CENTRAL EXCISE, BANGALORE ENCLOSING A COPY OF THE 2ND RESPONDENT'S LETTER, DATED 28.10.2013 GRANTING 10 MORE DAYS TIME FOR THE REPLY TO THE SHOW CAUSE NOTICE. ANNEXURE A5 TRUE COPY OF THE LETTER, DATED 5.12.2013. ANNEXURE A6 TRUE COPY OF THE LETTER F.NO.MISC/64/2003/PT.II DATED 22.01.2014 ISSUED BY THE CUSTOMS HOUSE, CHENNAI ALONG WITH THE APPOINTMENT ORDERS. ANNEXURE A7 TRUE COPY OF THE ORDER F.NO.C14011/38/2013 AD. V. DATED 08.10.2014 ISSUED BY THE 2ND RESPONDENT. ANNEXURE A8 TRUE COPY OF THE LETTER DATED 11.12.2014 TO THE 2ND RESPONDENT. ANNEXURE A9 TRUE COPY OF THE LETTER DATED 11.12.2014. ANNEXURE A10 TRUE COPY OF THE REVIEW PETITION DATED 17.12.2014. ANNEXURE A11 TRUE COPY OF THE O.M. DATED 09.11.1972 ISSUED BY THE CABINET SECRETARIAT.** OP (CAT).No.127 OF 2020 11 |**ANNEXURE A12**|**TRUE COPY OF THE **|**LETTER DATED**| |---|---|---| ||**01.01.2015.**|| |**ANNEXURE A13**|**TRUE COPY OF THE LETTER C.NO.AKR/10/14**|| ||**DATED 12.12.2014 ISSUED**|**BY THE INQUIRY**| ||**OFFICER.**|| |**ANNEXURE A14**|**TRUE** **COPY** **OF**|**THE** **LETTER**| ||**F.NO.MISC/JC/22/2014-AIR**|**DATED**| ||**15.12.2014.**|| |**ANNEXURE A15**|**TRUE COPY OF THE **|**LETTER DATED**| ||**07.01.2015.**|| |**ANNEXURE A16**|**TRUE COPY OF THE LETTER**|**DATED 23.12.2014**| ||**ALONG WITH ITS ENCLOSURES.**|| |**ANNEXURE A17**|**TRUE COPY OF THE O.M.NO.18019/6/2013-**|| ||**ESTT.(L) DATED 21.10.2013 ISSUED BY THE**|| ||**DOPT.**|| |**ANNEXURE A18**|**TRUE** **COPY** **OF**|**THE** **LETTER**| ||**NO.V/39/15/269/2001 DATED 11.02.2002.**|| |**ANNEXURE A19**|**TRUE COPY OF THE **|**LETTER NO.C**| ||**NO.V/39/15/61/MDU/2002-CZO** **DATED**|| ||**08.03.2002.**|| |**ANNEXURE A20**|**TRUE COPY OF THE REPLY TO THE SHOW CAUSE**|| ||**NOTICE WHICH WAS SUBMITTED BY M/S GLOBAL**|| ||**POLY BAGS INDUSTRIES PVT. LTD.**|| |**ANNEXURE A21**|**TRUE COPY OF THE ORDER-IN-ORIGINAL**|| ||**NO.1/2012(CUSTOMS) DATED**|**31.05.2012.**| |**ANNEXURE A22**|**TRUE COPY OF THE LETTER**|**NO.II/39/10/2012**| ||**VIG. DATED 19.10.2012.**|| |**ANNEXURE A23**|**TRUE** **COPY** **OF**|**THE** **LETTER**| ||**C.NO.IV/16/223/2012**|**REVIEW** **DATED**| ||**01.11.2012.**|| |**ANNEXURE A24**|**TRUE COPY OF THE **|**ORDER-IN-APPEAL**| ||**NO.40670-41688/2014 DATED 28.10.2014.**|| |**ANNEXURE A25**|**TRUE** **COPY** **OF**|**THE** **LETTER**| ||**C.NO.II/39/49/2011-VIG**|**(CCO)** **DATED**| ||**13.06.2012 ISSUED BY THE**|**3RD RESPONDENT.**| |**ANNEXURE A26**|**TRUE COPY OF THE REPLY C.NO.II/39/7/2012**|| ||**VIG. DATED 14.08.2012.**|| OP (CAT).No.127 OF 2020 12 |**ANNEXURE A27**|**TRUE** **COPY** **OF** **THE** **LETTER** **NO.**| |---|---| ||**II/39/02/2013 VIG. DATED 05.06.2012.**| |**ANNEXURE A28**|**TRUE COPY OF THE OFFICE ORDER**| ||**NO.36/07/2003 DATED 09.07.2003 ISSUED BY**| ||**THE 5TH RESPONDENT.**| |**ANNEXURE A29(a),(b),**|**TRUE COPY OF THE OFFICE MEMORANDUMS**| |**(c),(d),(e) and (f)**|**HAVING THE SAME NUMBERS I.E., 372/3/2007**| ||**AD.V III (VOL.10) DATED 14.10.2013**| ||**ISSUED BY THE DOPT AND PUBLISHED IN**| ||**'SWAMYNEWS' FOR THE MONTH OF DECEMBER**| ||**2013 SERIALLY NUMBERED AS 222, 223, 224,**| ||**225, 226 AND 227.**| |**ANNEXURE A30**|**TRUE COPY OF THE CIRCULAR C.**| ||**NO.II/39/63/2011-ESTT.(CCO)** **DATED**| ||**12.04.2012 ISSUED BY THE 3RD RESPONDENT.**| |**ANNEXURE A31**|**TRUE COPY OF THE O.M.NO.104/76/2011-ADV-**| ||**I DATED 18.10.2013 ISSUED BY THE DOPT.**| |**ANNEXURE A32**|**TRUE COPY OF THE CIRCULAR NO.C-**| ||**14010/5/2011 AD.V. DATED 24.02.2011.**| |**EXHIBIT P2**|**TRUE** **COPY** **OF** **THE** **MISCELLANEOUS**| ||**APPLICATION NO.980 OF 2017 IN THE**| ||**O.A.NO.180/1078/2016 FILED BEFORE THE**| ||**CENTRAL** **ADMINISTRATIVE** **TRIBUNAL,**| ||**ERNAKULAM BENCH BY THE APPLICANT.**| |**ANNEXURE M A 33**|**TRUE COPY OF THE APPEAL ALONG WITH THE**| ||**RELEVANT DOCUMENTS.**| |**ANNEXURE M A 34**|**TRUE** **COPY** **OF** **THE** **ORDER**| ||**NO.CIC8/CBECE/A/2017/128812-BJ** **DATED**| ||**10.08.2017.**| |**ANNEXURE M A 35**|**TRUE** **COPY** **OF** **THE** **LETTER**| ||**NO.F.NO.11015/101/2016-AD,V/7114** **DATED**| ||**08.09.2017 ALONG WITH TYPED COPIES OF**| ||**NOTE SHEETS.**| |**EXHIBIT P3**|**TRUE** **COPY** **OF** **THE** **MISCELLANEOUS**| ||**APPLICATION NO.1265 OF 2018 IN THE**| ||**O.A.NO.180/1078/2016 FILED BEFORE THE**| ||**CENTRAL** **ADMINISTRATIVE** **TRIBUNAL,**| ||**ERNAKULAM BENCH BY THE APPLICANT.**| |**ANNEXURE A40**|**TRUE COPY OF THE RTI QUESTION.**| |**ANNEXURE A41**|**TRUE COPY OF THE RTI REPLY.**| OP (CAT).No.127 OF 2020 13 |**ANNEXURE A42**|**TRUE COPY OF THE APPEAL DATED**| |---|---| ||**15.11.2018.**| |**EXHIBIT P4**|**TRUE COPY OF THE REPLY STATEMENT FILED**| ||**BY** **THE** **DEPARTMENT** **IN** **THE**| ||**O.A.NO.180/1078/2016 BEFORE THE CENTRAL**| ||**ADMINISTRATIVE** **TRIBUNAL,** **ERNAKULAM**| ||**BENCH.**| |**EXHIBIT P5**|**TRUE COPY OF THE REJOINDER STATEMENT**| ||**FILED BY THE APPLICANT ON 20.11.2017 IN**| ||**THE O.A.NO.180/1078/2016 BEFORE THE**| ||**CENTRAL** **ADMINISTRATIVE** **TRIBUNAL,**| ||**ERNAKULAM BENCH.**| |**ANNEXURE A36**|**TRUE COPY OF THE RTI QUESTION DATED**| ||**14.01.2015.**| |**ANNEXURE A37**|**TRUE COPY OF THE RTI REPLY DATED**| ||**17.02.2015.**| |**ANNEXURE A38**|**TRUE COPY OF THE LETTER TO THE HONORABLE**| ||**FINANCE MINISTER DATED 07.01.2015.**| |**ANNEXURE A39**|**TRUE COPY OF THE APPOINTMENT ORDER NO.C-**| ||**140111/38/2013 AD.V. DATED 01.03.2017.**| |**EXHIBIT P6**|**TRUE COPY OF THE ADDITIONAL REPLY**| ||**STATEMENT FILED BY THE DEPARTMENT IN THE**| ||**O.A.NO.180/1078/2016 IN THE MONTH OF**| ||**MARCH** **2019** **BEFORE** **THE** **CENTRAL**| ||**ADMINISTRATIVE** **TRIBUNAL,** **ERNAKULAM**| ||**BENCH.**| |**ANNEXURE R1**|**TRUE** **COPY** **OF** **THE** **LETTER**| ||**C.NO.II/39/63/2011** **ESTT.(CCO)** **DATED**| ||**12.04.2012.**| |**ANNEXURE R2**|**TRUE COPY OF THE CIRCULAR NO.39/11/07**| ||**DATED 01.11.2007.**| |**EXHIBIT P7**|**TRUE COPY OF THE ORDER DATED 20.08.2019**| ||**IN THE O.A.NO.180/1078/2016 PASSED BY**| ||**THE CENTRAL ADMINISTRATIVE TRIBUNAL,**| ||**ERNAKULAM BENCH.**| ## **RESPONDENTS EXHIBITS : NIL** **TRUE COPY P.A.TO JUDGE**