Dr. Bela Shah vs Indian Council Of Medical Research & Ors.

C. Hari Shankar, J.

[Statutory provisions have been extracted in footnotes to the extent relevant.]

By office order dated 31 December 1998, the petitioner, who was then serving as Deputy Director General of the Indian Council of Medical Research^{11.“ICMR”, hereinafter} was appointed, with the sanction of the Director General^{22.“DG”, hereinafter} of the ICMR, to the post of Senior Deputy Director General^{33.“Senior DDG”, hereinafter} (Non-Communicable Diseases) on a pay scale of ₹18,400/- per month. The office order, which was issued by the Assistant Director General (Admn.) for the DG specifically, stated that the appointment was with the approval of the Executive Committee^{44.“EC”, hereinafter} of the ICMR.

The petitioner functioned as head of the Department of Non-Communicable Diseases in the ICMR between August 2006 and November 2008. With respect to the discharge of her duties during this period, the petitioner was issued memorandum dated 27 / 30 April 2015, intimating her that the DG proposed to hold an inquiry against her under Rule 14^{55.14. Procedure for imposing major penalties – (1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850, where such inquiry is held under that Act. ***** (3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up – (i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge; (ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain – (a) a statement of all relevant facts including any admission or confession made by the Government servant; (b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. (4) (a) 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 a list of documents and witnesses by which each article or charges is proposed to be sustained. (b) On receipt of the articles of charge, the Government servant shall be required to submit his written statement of defence, if he so desires, and also state whether he desires to be heard in person, within a period of fifteen days, which may be further extended for a period not exceeding fifteen days at a time for reasons to be recorded in writing by the Disciplinary Authority or any other Authority authorised by the Disciplinary Authority on his behalf: Provided that under no circumstances, the extension of time for filing written statement of defence shall exceed forty-five days from the date of receipt of articles of charge.} of the Central Civil Services (Classification, Control and Appeal) Rules, 1965^{66.“CCS (CCA) Rules”, hereinafter} for perceived acts of misconduct on her part. The memorandum was signed by the Senior DDG and Chief Vigilance Officer^{77.“CVO”, hereinafter}. The memorandum contained four articles of charges against the petitioner which, in substance, dealt with a note which had been approved by the petitioner for transfer of a plot in favour of the ICPO – ICMR Cooperative Group Housing Society. It was alleged that the petitioner had approved the note and had not raised any issue during discussion in the meeting of the governing body of the ICMR with respect thereto. It was alleged that the transfer of the plot was unauthorised as it had originally been allotted to the ICMR by the New Okhla Industrial Development Authority^{88.“NOIDA”, hereinafter} for construction of staff quarters, whereas the ICPO – ICMR Cooperative Group Housing Society was a private housing society consisting of members working in the ICMR. Various allegations with respect to the transfer of the plot in favour of the ICPO – ICMR Cooperative Group Housing Society were levelled, including, inter alia, the approval, by the petitioner, of the decision to accept a cheque for ₹1,40,66,049- in favour of the DG, ICMR as part consideration.

Without subjecting herself to disciplinary proceedings, the petitioner challenged the aforesaid memorandum^{99.“charge sheet”, hereinafter} dated 30 April 2015 before the Central Administrative Tribunal^{1010.“the Tribunal”, hereinafter} by way of OA 3428/2015. Essentially, the petitioner contended before the Tribunal, in the OA, that the charge sheet had been issued by an Incompetent Authority, as the Senior DDG and CVO were not her Disciplinary Authority^{1111.“DA”, hereinafter}. Neither, for that matter, submitted the petitioner, was the DG her DA. The petitioner asserted that her DA was the EC and none other than the EC could have issued the charge sheet to her.

Additionally, the petitioner also sought to contend that allegations in the charge sheet, even if treated as correct, did not make out a case of actionable misconduct on her part. The Tribunal has proceeded, by judgment dated 29 January 2020, to dismiss the OA.

Aggrieved thereby, the petitioner has approached this Court by means of the present writ petition.

The impugned judgment completely refuses to deal with the petitioner’s contention that no case of misconduct was made out on the charges contained in the charge sheet. In this regard, the Tribunal has merely held that the charges against the petitioner were “very serious” and that the truth thereof had to be examined only in the inquiry proceeding.

The Tribunal has, nonetheless, proceeded to deal with petitioner’s contention that the charge sheet was issued by an incompetent authority, nothing, quite correctly, that if the authority issuing the charge sheet was not competent to do so, that could constitute a legitimate basis for the petitioner to challenge the charge sheet without subjecting herself to disciplinary proceedings.

In this regard, the Tribunal has held thus:

Based on the above reasoning, the Tribunal has held that the DG was the DA of the petitioner and was, therefore, competent to issue the charge sheet.

We have heard Mr. S.D. Singh, learned Counsel for the petitioner and Mr. Jasbir Bidhuri, learned Counsel for the respondent at length.

Mr. Singh has sought to contend that the petitioner’s DA was neither the DG nor the Senior DDG. He submits that the petitioner’s DA was the EC. He further submits that the rules to which paras 6 and 7 make reference were not in existence at the time when the petitioner was appointed as Senior DDG. The 1985 bye-laws of the ICMR, which were in existence at that time, specifically envisaged the EC as being the DA in respect of all posts in the ICMR carrying a scale of more than ₹ 2000/- per month which, consequent to the recommendations of the 5^th Central Pay Commission, was revised to ₹ 16500/- per month. It was for this reason, points out Mr. Singh, that the appointment order dated 31 December 1998, appointing the petitioner as Senior DDG, specifically stated that the appointment was made with the approval of the EC, as the petitioner was appointed at a scale of ₹ 18400/- per month.

Mr. Singh submits that the competence of the authority issuing the charge sheet, as the appointing authority of the charged officer, would have to be reckoned on the basis of the position which existed at the time of appointment of the charged officer and not at the time of issuance of charge sheet. If, between the date of appointment of charged officer, and the date of issuance of the charge sheet, the rules had been amended, so that the appointing authority for the post held by the officer had changed, Mr. Singh submits that the legal position is that the higher of the appointing authorities, between the appointing authorities at the time of appointment of the officer and the appointing authorities at the time of issuance of charge sheet would be competent to issue the charge sheet.

In support of his submissions, Mr. Singh has placed reliance on the judgments of the Supreme Court in Om Prakash Gupta Swadheen v. Union of India^{1212.(1976) 1 SCC 594}, Krishna Kumar v. Divisional Assistant Electrical Engineer^{1313.(1979) 4 SCC 289} and the judgments of this Court in Union of India v. R P Tiwari^{1414.2017 SCC OnLine Del 7917} and GNCTD v. Udal Singh^{1515.2024 SCC OnLine Del 7987}.

Mr. Singh has also placed reliance on OM dated 13 July 1981 issued by the Department of Personnel and Administrative Reforms (later, the DOPT), which reads thus:

Mr. Singh submits that, if the EC was the competent disciplinary authority who could have issued charge sheet to the petitioner, the DG was not competent to exercise the power of EC. He has drawn our attention to the constitution of the EC, as set out in Rule 35 of the rules and regulations of the ICMR, viz.

Mr. Bidhuri, arguing for the respondents, contests the contention that the DG was not competent to issue the charge sheet to the petitioner. He submits that though the Senior DDG had signed the charge sheet, it is clearly stated, therein, that the DG had taken a decision to institute disciplinary proceedings against the petitioner. He also submits that as, on the date of institution of the disciplinary proceedings by way of issuance of the charge sheet, the DG was the competent DA in respect of the post held by the petitioner, no case for quashing the charge sheet on ground that it had been issued by an incompetent officer was made out. He also places reliance on various decisions which hold that Court should not interfere with the disciplinary proceedings at the charge sheet stage. The defences raised by the petitioner, he submits, would be available to her after the proceedings conclude and the DA issues an order.

Mr. Bidhuri also placed reliance on the judgment of the Supreme Court in Pyare Lal Sharma v. Jammu & Kashmir Industries Ltd^{1616.(1990) 67 Comp Cas 195} and Dr. S.L. Agarwal v. General Manager, Hindustan Steel Ltd^{1717.(1970) 1 SCC 177}.

At the outset, we are not in agreement with the Tribunal in its observation that, as the allegations against the petitioner are serious, they cannot be looked into, and that the Tribunal had necessarily to restrict its examination of the case to the aspect of the competence of the authority issuing the charge sheet. The merits of the charges contained in a charge sheet cannot be regarded, even in a direct challenge to the charge sheet without subjecting oneself to disciplinary proceedings, as no man’s land. It is true that the scope of interference by a court with a charge sheet, on the merits of the charges contained therein, even before the inquiry has commenced or when the inquiry is in progress, is extremely limited. It is not, however, completely foreclosed. If the charges against the charged officer, even if taken as true, do not make out a case of misconduct, it would be unfair and unjust to subject the officer to disciplinary proceedings. At least to this limited extent, the court is within its jurisdiction in examining the charges contained in a charge sheet, even where it is questioned at the inquiry stage, or even prior thereto.

Inasmuch as we are, however, of the opinion that Mr. Singh deserves to succeed in his contention that the charge sheet has been issued by an incompetent authority, the necessity of proceeding to the merits of the actual charges against the petitioner is obviated.

As the Tribunal has correctly noted, if the authority issuing the charge sheet was not competent to do so, it makes out a clear case for interference at the charge sheet stage.

The charge sheet, though signed by the Senior DDG and CVO, conveys the decision of the DG to institute disciplinary proceedings against the petitioner. We are not with Mr. Singh in his contention that the authority issuing the charge sheet should be treated as a Senior DDG/CVO. Clearly, in the issuance of the charge sheet, it is the DG who has acted as he DA.

Mr. Singh, however, submits that the DG was also not competent to issue the charge sheet and that, therefore, the charge sheet was required to be quashed.

We are, therefore, required to consider whether the DG was competent to act as a DA in the case of the petitioner.

There is a well-recognised distinction between issuance of a charge sheet and imposition of punishment following disciplinary proceedings. We are not concerned, here, with the authority who would be competent to impose or award punishment to the petitioner, assuming the disciplinary proceedings were to culminate against her, but with the authority who was competent to issue the charge-sheet in the first instance.

The charge sheet has been issued under Rule 14 of the CCS (CCA) Rules. The issuance of a charge sheet results in the institution of disciplinary proceedings. Rule 13(2)^{1818.(2) A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties. 11. Penalties – The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely :-Minor Penalties – (i) censure; (ii) withholding of his promotion; (iii) recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iiia) reduction to lower stage in the time-scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. (iv) withholding of increments of pay; Major Penalties – (v) save as provided for in clause (iii)(a), reduction to a lower stage in the timescale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; (vi) reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period – (a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and (b) the Government servant shall regain his original seniority in the higher time scale of pay, grade, post or service; (vii) compulsory retirement; (viii) removal from service which shall not be a disqualification for future employment under the Government; (ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government. Provided that, in every case in which the charge of possession of assets disproportionate to known-sources of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed: Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.} of the CCS (CCA) Rules empowers a DA, competent under the CCS (CCA) Rules to impose any of the penalties specified in clauses (i) to (v) of Rule 11^{1919.12. Disciplinary authorities – ***** (2) Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on – ***** (b) a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.} to institute disciplinary proceedings against a government servant even proposing penalties under clauses (v) to (ix) thereof.

Rule 11 identifies the disciplinary authorities who may levy the penalties stipulated in Rule 11. By virtue of Rule 13(2), these disciplinary authorities would also be competent to institute the disciplinary proceedings by issuing a charge sheet.

Rule 12(2)(b)^{2020.(a) "appointing authority", in relation to a Government servant, means – (i) the authority empowered to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or (ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such Service, grade or post, as the case may be, or (iv) where the Government servant having been a permanent member of any other Service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority;} empowers “the authorities specified in this behalf by a general or a special order of the President or, where no such order has been made, by the appointing authority or the authority specified in its schedule in this behalf” to impose any of the penalties envisaged in Rule 11 on any person appointed to a central civil post. Inasmuch as there are no authorities specified in the Schedule to the CCS (CCA) Rules in respect of the petitioner, it would be the appointing authority of the petitioner who would be competent to issue the charge sheet.

“Appointing authority” is defined in Rule 2(a)²¹ of the CCS (CCA) Rules. Rule 2(a) envisages the appointing authority as being the authority empowered to make appointments to the post which the government servant for the time being holds, or the authority which appointed the government servant to such post, whichever authority is higher.

The decision of the Supreme Court in Om Prakash Gupta Swadheen, on which Mr. Singh relies, dealt with termination of an officer under Rule 5(1)(a) of the Central Civil Services (Temporary Service) Rules, 1985^{2222.“Temporary Service Rules”, hereinafter}. Rule 5(1)(a) of the Temporary Service Rules empowered the “appointing authority” to issue an order of termination thereunder. Rule 2(a) of the Temporary Service Rules defined “appointing authority” to be the “appointing authority” under the CCS (CCA) Rules. Thus, Rule 2(a) of the CCS (CCA) Rules became directly applicable in Om Prakash Gupta Swadheen. The Supreme Court, in the said decision, held that the appointing authority would be higher of the authorities between the authority who appointed the officer concerned and the competent appointing authority at the time of issuance of the termination order.

It is true that we are not concerned, here, with the competence of the authority who could punish the petitioner, assuming the disciplinary proceedings were to culminate in punishment. We are concerned with the authority who would be competent to institute the disciplinary proceedings.

The CCS (CCA) Rules, however, equate these authorities. Rule 13 deals with the authority who could institute disciplinary proceedings. Sub-rule (2) thereof clearly states that the institution of disciplinary proceedings has to be by the DA competent, under the CCS (CCA) Rules, to impose penalties. There is, therefore, no distinction, in the CCS (CCA) Rules, between the authority who was competent to award punishment or impose penalties, and the authority who could institute the disciplinary proceedings which culminated in the order of punishment or penalty.

This is also reflected in Rule 14(3) and (4), which require the DA to hold the enquiry against the charged officer and to “deliver or cause to be delivered to the Government servant copy of the articles of charge”.

Keeping the discussion regarding Om Prakash Gupta Swadheen on hold, for the present, it becomes necessary, at this juncture, to refer to a recent judgment of the Supreme Court in State of Jharkhand v. Rukma Kesh Mishra^{2323.2025 SCC OnLine SC 676}.

The appeal before the Supreme Court, in Rukma Kesh Mishra, emanated from the decision of the High Court of Jharkhand to quash the disciplinary proceedings instituted against the respondent on the ground that the charge-sheet had not been approved by the Chief Minister of Jharkhand, who was the competent DA. Article 311(1)^{2424.311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. – (1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.} was invoked, both by the learned Single Judge as well as by the Division Bench of the High Court, to hold that the charge-sheet had not been issued or approved by the competent authority.

The Supreme Court held that the reliance, by the High Court, on Article 311(1), to be misguided. The Supreme Court observed that the respondent before it was governed by Rule 55 of the Civil Services (Classification, Control and Appeal) Rules, 1930, which clearly required the “appointing authority” to issue the charge-sheet to the charged officer. This provision, it was noticed, was in contradistinction to Article 311(1), which required dismissal, removal or reduction in rank to be by an authority who was not “subordinate to that by which (the charged officer) was appointed”. The Supreme Court observed that there was a distinction between the expression “appointing authority” and the authority “by which” the charged officer “was appointed”. The issuance of the charge-sheet by the authority who was, at that time, the appointing authority for the post held by the charged officer was, therefore, held to be valid, even if the authority was subordinate to the authority who had in fact appointed the respondent.

Rukma Kesh Mishra, however, did not involve any provision akin to Rule 13(2) or sub-Rule (3) or (4) of Rule 14 of the CCS (CCA) Rules, as are available in the case before us. These provisions, as we have noticed, required the DA to institute the disciplinary proceedings by drawing up, or by causing to be drawn up, the charge-sheet and having the charge-sheet served on the charged officer. Rule 12 requires the DA not to be subordinate to the appointing authority, and the definition of “appointing authority” in Rule 2(a) of the CCS (CCA) Rules envisages the appointing authority as being the higher, between the authority who appointed the charged officer and the authority who, at the time of issuance of the charge-sheet, was competent to appoint persons holding the post of the charged officer. The interpretation of Rule 2(a) in Om Prakash Gupta Swadheen, which holds that if there is a difference between the appointing authority at the time of appointment of the petitioner and the “appointing authority” as defined in the Rules at the time of issuance of the charge sheet, the higher of the two authorities would be competent to issue the charge sheet would, therefore, directly be applicable.

Rukma Kesh Mishra did, however, also advert to Rule 14(3) of the CCS (CCA) Rules. Para 36 of the report, which deals with Rule 14(3), read thus:

Rukma Kesh Mishra, therefore, notes that Rule 14(3) of the CCS (CCA) Rules does not require the charge-sheet, inexorably, to be drawn up by the DA; the DA could also cause the charge-sheet to be drawn up by another authority, as his delegatee.

That distinction would, however, not affect the outcome of the present dispute, or the applicability, to the facts before us, of the decision in Om Prakash Gupta Swadheen, as the DA in the case of the petitioner, by operation of Rule 2(a) of the CCS (CCA) Rules read with the decision in Om Prakash Gupta Swadheen, was the EC, and it is nobody’s case that the EC had delegated the power to institute disciplinary proceedings, or issue the charge-sheet to the petitioner, to the DG. The DG, in issuing the charge-sheet, could not, therefore, be said to be acting as a delegatee of the EC. Para 36 of Rukma Kesh Mishra would not, therefore, salvage the charge-sheet which, clearly, has not been issued by the DA or by his delegatee.

Pyare Lal Sharma and Dr S.L. Agarwal, on which Mr Bidhuri relies, are clearly distinguishable. In Pyare Lal Sharma, the board of directors, who had appointed the appellant (before the Supreme Court) had delegated its power as appointing authority to the managing director, who thereafter instituted disciplinary proceedings. Dr S.L. Agarwal did not even obliquely address this issue.

The issuance of the charge-sheet to the petitioner was, therefore, in violation of Rule 13(2) read with sub-Rules (2) and (3) of Rule 14 and Rule 2(a) of the CCS (CCA) Rules.

We, therefore, are in agreement with Mr. Singh in his submission that the disciplinary proceedings stood vitiated ab initio.

Inasmuch as the very issuance of the charge-sheet, in the case before us, was by an incompetent authority, we cannot relegate the proceedings to any stage of the disciplinary proceedings, as they stand vitiated from their very initiation.

The OA filed by the petitioner was, therefore, entitled to succeed. We are constrained, therefore, to hold that the Tribunal was in error in dismissing the OA.

The writ petition, as also OA 3428/2015, therefore, succeed and are allowed. The charge-sheet dated 27/30 April 2015 would stand quashed and set aside.

There shall be no orders as to costs.