ORDER OF SANCTION GRANTED BY PRESIDENT OF INDIA IS SUBJECT TO JUDICIAL REVIEW

Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3 magazines and 90 rounds of 7.62 ammunition issued in the name of one Lance Naik Man Bahadur, who was posted at the same battalion of which the appellant was the commandant went missing. According to Union of India – the respondents, the loss occurred as a result of the verbal orders issued by the appellant, which action amounted to a violation of Rules 3(1)(i) & (iii) of the Central Civil Services (Conduct) Rules, 1964 [the CCS (Conduct) Rules, 1964].

On 28.05.1997, the Deputy Inspector General of Police (OPS), CRPF, Imphal sent a letter to the appellant, directing him to submit a written statement of defence in connection with the said lapse. The relevant portions of the said letter are extracted hereunder:

“It has been intimated by IGP, N/ Sector, CRPF that oneAK-47 Rifle, 3 Magazines and 90 rounds of 7.62 ammunition of commanding 61 Bn at Mantripukhri, Imphal. A Court of Inquiry was conducted. IGP N/ Sector has intimated to this office that the said weapon and ammunition belonging to HQr Coy was shown as issued to LNK Man Bahadur but was actually being used by a civilian on your orders. It has further been intimated that S.M. P.N. Gupta (OC HQr Coy 61 Bn) had brought it to your notice that the said weapon and ammunition were not returned by the civilian and were missing from the HQr Coy Kote. To this effect, Shri P.N. Gupta had informed you in writing on 21.08.1995. However, no action was taken

nor any decision given by you…… ……… Therefore, I am directed by IGP, N/Sector that

to request you to send your written statement to this office at an early date……” Pursuant to the above letter, the appellant submitted his written statement on 07.04.1998, explaining the reasons which resulted in the loss of the said weapon

and ammunition.

By letter dated 24.06.1998, the Deputy Inspector General CRPF, Imphal, on the basis of the conclusion arrived at by the internal Court of Inquiry, issued a warning to the appellant to be more careful and also ordered for a sum of Rs.3,750/- to be recovered from the appellant in lieu of the lost weapon.

Subsequently, on 15.03.1999, the IGP, Northern Sector, CRPF, sent a letter to the appellant stating that after review of the case, the Directorate General had come to the conclusion that the penalty inflicted upon him vide letter dated 24.06.1998 was being withdrawn as the same did not commensurate with the gravity of the offence committed by the appellant in discharge of his official duties. After obtaining approval from the competent authority, major penalty proceedings were initiated and Memorandum of Charges dated 23.06.1999 was issued to the appellant. Subsequently, pursuant to the Presidential Order dated 14.10.1999, a regular departmental inquiry under Rule 14 of the Central Civil Services (Classification Control & Appeal) Rules, 1965 (hereinafter referred to as the “CCS (CCA) Rules, 1965”) was ordered in connection with the said incident of the loss ofAK-47 Rifle along with its ammunition.

Aggrieved of the said action of withdrawal of imposition of minor penalty and initiating departmental inquiry, the appellant filed Writ Petition (C) No. 720 of 2002 before the High Court of Gauhati, Imphal Bench, by questioning the validity of the said Memorandum of Charges dated 15.03.1999 on the ground that it is in violation of the principles of natural justice and is also contrary to the settled position of law.

The learned single Judge allowed the Writ Petition vide judgment and order dated 18.05.2006 by placing reliance on various decisions of Supreme Court on the aspect of principles of natural justice. It was observed that the earlier punishment imposed upon the appellant was withdrawn suo motu by the competent authority by order dated 15.03.1999 without affording him the opportunity of being heard, by passing a non speaking order. The learned single Judge accordingly set aside the order dated 15.03.1999 as the earlier penalty imposed upon the appellant was withdrawn by which the letter dated 24.06.1998 was withdrawn by the IGP-NS.

In the meanwhile, the appellant retired from service as a regular Commandant/Police Officer, CRPF on 31.08.2006.

The respondent preferred Writ Appeal No. 45 of 2006 before the Division Bench of the High Court against the said judgment and order of the learned single Judge.

The Division Bench of the High Court by way of judgment and order dated 07.11.2006 upheld the finding and reasons recorded by the learned single Judge and held that the appellant should have been afforded an opportunity of being heard before the Memorandum of Charges dated 15.03.1999 was issued to him. The Division Bench however, observed that it was open for the Disciplinary Authority to initiate fresh action in the matter against the appellant by complying with the principles of natural justice. The appeal was accordingly dismissed.

In pursuance of the liberty granted by the Division Bench to the respondents, a show cause notice dated 02.02.2007 was issued to the appellant, by which he was given time of fifteen days to reply to the same. After considering the reply of the appellant, the DG- CRPF came to the conclusion that it was appropriate to initiate disciplinary proceedings against the appellant afresh.

Accordingly, on 22.08.2008, the respondents issued another Memorandum of Charges to the appellant in pursuance of the sanction accorded by the President of India under Rule 9(2)(b)(i) of the Central Civil Services (Pension) Rules, 1972 (hereinafter referred to as the “CCS (Pension) Rules, 1972”) for initiating departmental inquiry proceedings against him in accordance with the procedure laid down in Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and directed him to submit his written statement of defence to the said Memorandum of charges. The articles of charges framed against the appellant are extracted hereunder:

“Article-I

That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning as Commandant 61 Bn CRPF at Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act of misconduct in that he allowed, kote UO to issue arms and ammunitions more than authorization. Thus the said B.S.Yambem, Commandant (Retired) failed to maintain absolute devotion to duty and acted in a manner unbecoming of a Government Servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-II

That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning in the aforesaid capacity and during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds through kote UC’s without keeping/maintaining proper records violating the instructions on the subject. Thus, the said Shri B.S. Yambem, Comdt. (Retired) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant and thereby violated the provisions contained in Rule 3(1)(ii) and (iii) of CCS (Conduct) Rules, 1964.

Article-III

That the said Shri B.S. Yambem, Commandant (Retired) while posted and functioning as Commandant 61 Bn CRPF, Mantripukhri, Imphal (Manipur) during the period from 1.5.95 to 31.8.95 committed an act, of misconduct in that he got issued service weapons to undergrounds through No.793020336 LNK Man Bahadur in violation of orders which resulted in missing of one AK-47 Body No. 313422 Butt No. 77, 3 Magazine and 90 rounds. That the said Shri B.S. Yambem, Commandant (Retired) failed to maintain absolute integrity and devotion to the duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of the CCS (Conduct) Rules, 1964.

Article-IV

That the said Shri B.S. Yambem, Comdt. (u/ s) while posted and functioning in the aforesaid capacity during the aforesaid period committed an act of misconduct in that he passed verbal orders to issue service arms and ammunitions to ex-undergrounds resulting missing of one AK 47 Body No. 313422 Butt No. 77, 3 Magazines and 90 Rounds. He had hidden the above fact and failed to take appropriate action after missing the service weapon. Thus the said Shri B.S. Yambem, Comdt. (u/s) failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. Servant and thereby violated the provisions contained in Rule 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.”

Aggrieved of the same, the appellant filed Writ Petition (C) No.904 of 2008 before the High Court of Gauhati, Imphal Bench questioning the issuance of the Memorandum of Charges urging various legal grounds.

In the meanwhile, another set of disciplinary proceedings had been initiated against the appellant in connection with the arrest of 11 personnel and seizure of two trucks of the unit of the appellant carrying contraband ganja. The allegation against the appellant was that he tried to cover up the same and that the said act of the appellant amounted to a violation of the Rules 3(1)(i),(ii) &(iii) of CCS (Conduct) Rules, 1964. The departmental enquiry was initiated against him on 14.05.1998. Aggrieved of the initiation of disciplinary proceedings in connection with the above alleged misconduct, the appellant filed W.P. No. 805 of 2005 before the High Court of Gauhati, Imphal Bench. The learned single Judge of the High Court allowed the Writ Petition by way of judgment and order dated 16.06.2006 by the learned single Judge of the High Court. The single Judge, however, granted liberty to the Disciplinary Authority to initiate departmental enquiry afresh against the appellant after complying with the directions given in the judgment.

Aggrieved of the said judgment, the respondents filed Writ Appeal No. 25 of 2007 before the Division Bench of the High Court questioning the correctness of the same. The Division Bench of the High Court dismissed the said Writ Appeal vide judgment and order dated 13.11.2008 and upheld the impugned judgment and order of the learned single Judge. Thereafter, the said Memorandum of Charges dated 14.05.1998 was withdrawn by the respondents, and another Memorandum of Charges dated 16.10.2009 was issued. The Articles of Charges framed against the appellant are extracted as hereunder:

“Article-I That the said Shri B.S. Yambem, Commandant while posted and functioning as Commandant in 61 Bn. CRPF at Mantripukhri, Imphal during August 1995 committed a serious misconduct in that he on 08/08/1995 sent three vehicles, one Asstt. Commandant and 18 other ranks of his Unit out of the area of operational jurisdiction without the approval of IGP (Ops) Manipur and Nagaland. Two of the above vehicles and 11 men were later intercepted and apprehended by the Customs and Central Excise Authorities at Didarganj check post near Patna on the night of 11/08/1995 as a huge quantity of contraband ganja was found loaded in these vehicles. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i), (ii) and (iii) of CCS (Conduct) Rules, 1964. Article-II That during the aforesaid period and while functioning in the aforesaid Unit in the aforesaid capacity, the said Shri B.S. Yambem committed a serious misconduct in that he fabricated office records to cover illegal dispatch of CRPF vehicles and men out of operational jurisdiction without proper permission or orders of the competent authority and also tried to secure false medical certificates in respect of Officers and men allegedly involved in the illegal transshipment of ganja from civil hospital on coming to know about the detention of his Unit vehicles and men by Central Excise authorities of Patna on 12/08/1995. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion of duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i), (ii) and (iii) of CCS (Conduct) Rules, 1964. Article-III

That the said Shri B.S. Yambem, Commandant (under suspension) while posted and functioning as Commandant 61 Bn. CRPF, Mantripukhri, Imphal during August, 1995 committed a serious misconduct in that he suppressed the information of arrival of Shri Ram Singh, Asstt. Comdt (under suspension), 4 Ors. with Civil TATA 608 truck with civilian driver at Bn. HQrs on 15/16- 8-95 and kept them hiding at remote Coy location at Mayang, Imphal and shown their arrival at Bn HQrs on 0245 hrs on 17/08/1995 though they were wanted by Central Excise authorities in connection with the seizure of ganja from

two trucks of his Unit at Didarganj check- post near Patna on the night of 11/8/1995. Thus, the said Shri B.S. Yambem, failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Government servant and thereby violated the provisions contained in Rule 3(1), (i) (ii) and (iii) of CCS (Conduct) Rules, 1964.” Aggrieved of the same, the appellant filed Writ Petition (C) No. 264 of 2010 before the High Court of Gauhati, Imphal Bench.

As the legal issue was same in both the Writ Petitions, i.e., No. 904 of 2008 (filed against the Memorandum of Charges dated 22.08.2008-issued in 1st case i.e. Arms case) and Writ Petition No. 264 of 2010 (filed against Memorandum of Charges dated 16.10.2009- issued in 2nd case i.e. Ganja case), they were heard together and disposed of by the learned single Judge vide common judgment and order dated 01.09.2010. The learned single Judge held that the Memorandum of Charges in both the cases make it clear that the initiation of disciplinary proceedings against the appellant by the Disciplinary Authority for the alleged incidents which took place more than 10 years earlier was barred by limitation as provided for under Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. Accordingly, the learned single Judge quashed the Memorandum of Charges dated 22.08.2008 and 16.10.2009 and allowed the above Writ Petitions filed by the appellant.

Aggrieved of the common judgment and order passed by the learned single Judge, the respondents filed Writ Appeal (C) Nos. 39 of 2011 and 40 of 2011 (against Writ Petition No. 904 of 2008 and Writ Petition No. 264 of 2010, respectively) before the Division Bench of the High Court questioning the correctness of the same. The Division Bench of the High Court after hearing the parties decided the above said Writ Appeals by passing the impugned common judgment and order dated 05.08.2013, observing that once the sanction was obtained by the Disciplinary Authority from the President of India, then the bar of period of limitation of four years as contained in Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 will not apply. Hence, the proceedings of serving the Memorandum of Charges to the appellant after his retirement falls within the ambit of Rule 9(2)(a) read with Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court, thus, allowed the appeals and set aside the order of the learned single Judge and upheld the decision of the respondents to hold departmental enquiry against the appellant. The Division Bench of the High Court further directed the Enquiry Officer to hold the departmental enquiry strictly in accordance with law without being influenced by any observation of its order. The respondents were further directed to proceed with the departmental enquiry against the appellant and conclude the same after affording adequate opportunity of hearing to him in the enquiry proceedings.

Against the judgement of the High Court special leave petition was filed. The Supreme Court partially allowed the appeal only to the extent of answering the legal questions framed and the impugned judgement and order was set aside to that extent with the liberty given to the respondents.

The Supreme Court found following question would arise for consideration :

1. Whether the impugned judgment and order passed by the Division Bench of the High Court correctly appreciates the scope of Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 in light of the fact the disciplinary proceedings were initiated more than four years after the alleged incidents?

2. Whether the impugned judgment and order is erroneous and is vitiated in law?

3. What Order?

Answer to the question Nos. 1 and 2 was given that the discriminatory proceedings initiated by the disciplinary authority after obtaining sanction from President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 was liable to be quashed. So far answer of point no. 3, the Supreme Court held that the impugned judgement liable to the set aside and accordingly the same was set aside. Simultaneously Supreme Court the disciplinary authority to continued the disciplinary proceedings and conclude them within six months in accordance with law as well as natural justice. If the same are not completed within the said time by the disciplinary authority, the said liberty granted by Supreme Court to the respondents will not ensue to their benefit and held the Supreme Court.

The operative part of the judgment reads as under:-

A perusal of Rule 9(2) makes it clear that if the disciplinary proceedings are not instituted against the Government servant by the disciplinary authority while he was in service, then the prior sanction of the President of India is required to institute such proceedings against such a person. It is also clear that such sanction shall not be in respect of an event which took place more than four years before the institution of such disciplinary proceedings.

The learned counsel appearing on behalf of the appellant has rightly placed strong reliance on Rule 9(2)(b)(ii) of the CCS (Pension) Rules, 1972. It is an undisputed fact that the appellant retired from service on 31.08.2006. The appellant challenged the correctness of the sanction and charges framed against him before the High Court of Gauhati, Imphal Bench in W.P. (C) No. 264 of 2010. The High Court quashed the Memorandum of Charges on the ground that it was issued after four years from the date of the alleged incident. Therefore, it was held that the said action of the Disciplinary Authority in initiating disciplinary proceedings is not valid in law as the same was barred by limitation as per the provision of Rule 9(2)(b)(ii) of the CCS (Pension) Rules 1972. This important legal aspect of the case was not considered by the Division Bench of the High Court while setting aside the common judgment and order dated 01.09.2010 passed by the learned single Judge in Writ Petition No. 904 of 2008 (arms and ammunitions case) and Writ Petition No. 264 of 2010 (contraband ganja case).

It is a well established principle of law that if the manner of doing a particular act is prescribed under any statute then the act must be done in that manner or not at all.

The aforesaid important aspect of the case should have been considered by the Division Bench of the High Court instead of mechanically accepting the argument advanced on behalf of the respondents that the case of the appellant squarely falls under Rule 9(2)(b)(i) read with Rule 9 (2)(b)(ii) of CCS (Pension) Rules, 1972. Therefore, the findings recorded by the Division Bench in the impugned judgment are erroneous in law and are liable to be set aside.

In the instant case, the action of the Disciplinary Authority is untenable in law for the reason that the interpretation of the CCS (Pension) Rules, 1972 which is sought to be made by the learned ASG on behalf of the respondents amounts to deprivation of the Fundamental Rights guaranteed to the appellant under Part III of the Constitution of India. Therefore, we have to hold that the disciplinary proceedings initiated by the disciplinary authority after obtaining sanction from the President of India under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 are liable to be quashed.

The learned ASG appearing on behalf of the respondents contends that the period of limitation of four years as stipulated in 9(2)(b)(ii) of the CCS (Pension) Rules, 1972 does not apply to the facts of the present case for the reason that the departmental proceedings against the appellant had already been initiated while he was in service, and it was because of the pendency of the litigation before the High Court that the proceedings could not be concluded and further disciplinary proceedings were continued after obtaining prior sanction of the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The said contention is untenable both on facts as well as in law. TTTTTTT

The Division Bench of the High Court failed to appreciate the fact that liberty had been granted by the High Court vide its judgment and order dated 07.11.2006 in W.A. (C) No. 45 of 2006 to the Disciplinary Authority to take disciplinary action against the appellant. Thus, there was no need for the respondent Disciplinary Authority to withdraw the Memorandum of Charges dated 14.05.1998 for the purpose of initiating disciplinary proceedings afresh against the appellant on the same charges by obtaining an order of sanction from the President of India as required under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972. The Division Bench of the High Court in its judgment and order dated 05.08.2013 has completely ignored this important legal aspect of the matter, that the prior sanction accorded by the President under the above said Rules was in fact, barred by limitation. Thus, it has committed serious error in law in arriving at the conclusion that the respondent Disciplinary Authority had obtained due sanction from the President of India to conduct the departmental proceedings against the appellant for the same charges, which action was barred by limitation as provided under Rule 9(2)(b)(ii) of CCS (Pension) Rules, 1972. Therefore, the impugned judgment and order passed by the Division Bench of the High Court cannot be allowed to sustain in law.

It becomes clear from a perusal of the constitutional provisions and the decisions by constitution benches of this Court referred to supra that the powers under Articles 77(3), 166(3) and 309 operate in completely different fields. It would thus, be clear that the Rules framed in exercise of power under Articles 77(3) and 166(3) cannot be compared while exercising power under Article 309 of the Constitution and framing rules and regulations for recruitment and conditions of service of persons appointed to such posts either in connection with the affairs of the Union government or a state government. It is for this reason that the statutory exercise of power by the President of India under Rules 9(2) (b)(i) and (ii) of the CCS (Pension) Rules, 1972 cannot be equated with power exercised under Article 77(2) of the Constitution of India. The High Courts and this Court can exercise power of judicial review under Articles 226 and 32, respectively, of the Constitution of India in cases of statutory exercise of power by the President or Governor. In the case of Dr . Yashwant Trimbak (supra), this Court held that the power of judicial review is not available in case of executive exercise of power by the President or the Governor. The said observation made by this Court in the said case is not tenable in law in view of the decision of this Court in the landmark judgment of His Holiness Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala and Anr. wherein this Court has clearly held that the power of judicial review is part of the basic structure of the Constitution of India.

The observation made by this Court in the case of Dr. Yashwant Trimbak (supra) to the extent that orders of sanction granted by the Governor are outside the scope of judicial review, is untenable in law. The same is contrary not only to the law laid down by this Court referred to supra, but also the provisions of Articles 77(2) & 166(2) of the Constitution of India. Therefore, the same has no application to the fact situation for the reason that the President has exercised his statutory power for grant of sanction under Rule 9(2)(b)(i) of the CCS (Pension) Rules, 1972 to initiate the disciplinary action but not the executive action against the appellant.

Though we have answered the questions of law framed in this case in favour of the appellant and set aside the impugned judgment by allowing these appeals, however, having regard to the seriousness of the allegations made against the appellant, in exercise of power of this Court under Article 142 of the Constitution of India, we direct the Disciplinary Authority to continue the disciplinary proceedings and conclude them within six months in accordance with the relevant provisions of law as well as the principles of natural justice. If the same are not completed within the said time period by the disciplinary authority, the said liberty granted by this Court in this order to the respondents will not ensue to their benefit.

Authorities relied upon : 1996 (9) SCC 395,AIR 1981 SC 561,AIR 1981 SC 561, 1973 (4) SCC 225A, IR 1970 SC 1118, 1969 (1) SCC 502,AIR 1965 SC 1103

Reference : Supreme Court. Brajendra Singh Yambem v. Union of India And Anr., Civil Appeal No.8323 of 2016 (Arising out of SLP (C) No.30907 of 2013) With Civil Appeal No.8324 of 2016 (Arising out of SLP(C) No.10092 of 2014) [From the Judgment and Order dated 05.08.2013 of the High Court of Manipur at Imphal in the Writ Appeal No. 39 of 2011].