The Competent Authority Has To Approve The Initiation of Charge and The Charge Itself
The Competent Authority Has To Approve The Initiation of Charge and The Charge Itself
Not only has the competent authority had to approve the initiation of charge but also the
charge itself. The charge sheet/charge memo having not been approved by the disciplinary
authority was non est in the eye of law.
[Union of India Vs. B.V. Gopinath JT 2013 (12) SC 392]
UoI Vs B V Gopinath
Services Charge sheet issued to IRS officer without approval of Disciplinary Authority
(FM) non Est: IRS officer charged with offering bribe to PA to MoS for transfer CAT
quashed the charge sheet as it was issued without the approval of the Finance Minister.
CAT order was upheld by the High Court.
Supreme Court holds that such a charge sheet can only be issued upon approval by the
appointing authority i.e. Finance Minister. 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. The approval granted by the Finance Minister for
initiation of departmental proceedings would not also amount to approval of the charge
memo.
Held: the charge sheet/charge memo having not been approved by the disciplinary authority
was non est in the eye of law. - UoI Appeal Dismissed:SUPREME COURT OF INDIA
The material secured during the preliminary enquiry cannot be the basis for
imposing a penalty; it can be the basis only for deciding the course of action,
whether to drop action or start action.
It may be noted that enquiry in preliminary enquiry is spelt with the letter
e while inquiry in regular inquiry is spelt with
standard
the
letter i as a
(i)
Article of charge is the prima facie proven essence of the allegation
setting out the nature of the accusation in general terms, such as obtaining illegal
gratification, acceptance of sub-standard work, false measurement of work executed,
execution of work below specification, breach of a conduct rule etc. A charge
should briefly, clearly and precisely identify the misconduct/misbehaviour
committed and the Conduct Rule violated.
It should give the time, place,
persons and things involved so that the Government servant has a clear notice of
his involvement. It should be unambiguous and free from vagueness.
(ii)
(iii)
each
Transaction/event or a series of related transactions/events.
(iv)
If, in the course of the same transaction, two or more misconducts
are committed, each misconduct should be specifically mentioned.
(v)
Guilty of one or the other of misconducts depending on one or the other set of
the
Circumstances, then the charge can be in the alternative.
(vi)
Multiplication or splitting up of charges on the basis of the
same allegation should be avoided.
(vii)
The terms delinquent and accused suggest prejudging the issue and
are inappropriate, and terms like public servant, employee or simply Government
servant should be used instead.
(viii) Charge should not contain expression of opinion as to the guilt of the
Government servant. It should start with the word that to convey that it is only
an allegation and not a conclusion.
(ix)
Charge should not relate to a matter which has already been the
subject matter of an inquiry and adjudication, unless it involves technical
considerations.
(x)
There should be no mention of the penalty proposed to be
imposed either in the articles of charge or the statement of imputations.
The statement should not refer to the preliminary enquiry report unless relied
upon or the Anti-Corruption Bureau Report of enquiry/investigation or the advice of
the Vigilance Commission, Vigilance Department or any such agency or
functionary.
18. Memorandum
The charge sheet i s served on the Government servant with a
memorandum indicating that he is being proceeded against under Rule 20
of the A.P.C.S. (C.C.A.) Rules,
1991, which
gives him
notice
that
major penalty proceedings are instituted against him.