# BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND ANR

- **Citation:** [2016] 6 S.C.R. 333
- **Court:** Supreme Court of India
- **Decided:** 2016-08-26
- **Case number:** Civil Appeal No. 8323of2016
- **Bench:** Anil R. Dave, V. Gopala Gowda, C. Nagappan
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/brajendra-singh-yambem-v-union-of-india-and-anr-31534
- **Pages:** 29

## Headnote

Service Law:
Central Civil Services (Pension) Rules. 1972 - r. 9(2J(b)(ii) -
Scope of - 7il'o disciplinary proceedings first relating to missing of
arms and ammunitions und second relating to supply to contraband
ganja - l11i1iated against 1he appellant while he was in service - The
disciplinary proceedings ll'ere quashed by the High Court - In the
meantime delinque111 retired ji-0111 service - Pursuant to his retirement
fi·esh departmental inquiries initiated ajier obtaining sanction from
the President of India ult: 9(2){b){i) of the I 972 Rules - Single Judge
of High Court held the fresh departmental proceedings as barred
by limitation as per 1:9(2)(b){ii) - Division Bench of High Court set
aside the decision of single Judge - On appeal, Held: As per
r.9(2)(b){ii) the disciplinary proceedings are burred by limitation
and hence are liable to be quashed - Howeve1; having regard to
the seriousness of the allegations made ugainst the delinquent, in
exercin of power u!Art. 142, the Disciplinary Authority is directed
to continue the disciplinary proceedings - Constitution of India -
Art.142.
Partly allowing the appeals, the Court
A
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HELD: 1. A perusal of r. 9(2) of CCS (Pension) Rules, 1972
makes it clear that ifthe 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
G
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.
[Para 33) [351-H;
352-A-B)
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[2016] 6 S.C.R.
2. It is an undisputed fact that the appellant retired from
service on 31.08.2006. The Single Judge of the High Court by
way of judgment and order dated 18.05.2006 in Writ Petition No.
720 of 2002 quashed the disciplinary proceedings in the case
pertaining to the missing arms and ammunitions. However, liberty
was granted to the Disciplinary Authority/Enquiry Officer to
conduct the disciplinary enquiry afresh after supplying the copies
of the proceedings of the enquiry to the appellant. The said
judgment and order of the Single Judge was challenged by the
respondents by way of Writ Appeal No. 45 of 2006, in which the
Division Bench, by ,iudgment and order dated 07.11.2006 upheld
the order of the single judge of the High Court. It was only
pursuant to this that the fresh memorandum of charges dated
22.08.2008 was issued to the appellant, which was clearly beyond
the period of limitation of four years as provided for under the
CCS (Pension) Rules, 1972. [Para 34) (352-B-D]
3. In the case involving the contraband ganja as well, the
Single Judge of the High Court by way of judgment and order
dated 16.06.2006 passed in Writ Petition No. 805 of 2005 quashed
the departmental enquiry under the memorandum of charges
dated 14.05.1998. The Division Bench dismissed the Writ Appeal
No. 25 of 2007 filed by the respondents vide judgment and order
dated 13.11.2008 and upheld the order of the Single Judge. It
was pursuant to this that the fresh departmental enquiry was
initiated against the appellant on 16.10.2009 after obtaining
sanction from the President of India under Rule 9(2)(b)(i) of the
CCS (Pension) Rules, 1972. [Para 34] (352-E-F]
4. It is a well established principle oflaw 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. (Para 35] [353-B)
Babu Verghese & Ors. v. Bar Council of Kera/a & Ors.
(1999) 3 SCC 422: 1999 (1) SCR 1121- relied on.
5. 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 res

## Text

_Characters 0–39,434 of 64,053. This is a partial read: ask again with offset=39434 for what follows._

[2016] 6 S.C.R. 333
BRAJENDRA SINGH YAMBEM
v.
UNION OF INDIA AND ANR.
(Civil Appeal No. 8323of2016)
AUGUST 26, 2016
[ANIL R. DAVE, V. GOPALA GOWDA AND
C. NAGAPPAN, JJ.)
Service Law:
Central Civil Services (Pension) Rules. 1972 - r. 9(2J(b)(ii) -
Scope of - 7il'o disciplinary proceedings first relating to missing of
arms and ammunitions und second relating to supply to contraband
ganja - l11i1iated against 1he appellant while he was in service - The
disciplinary proceedings ll'ere quashed by the High Court - In the
meantime delinque111 retired ji-0111 service - Pursuant to his retirement
fi·esh departmental inquiries initiated ajier obtaining sanction from
the President of India ult: 9(2){b){i) of the I 972 Rules - Single Judge
of High Court held the fresh departmental proceedings as barred
by limitation as per 1:9(2)(b){ii) - Division Bench of High Court set
aside the decision of single Judge - On appeal, Held: As per
r.9(2)(b){ii) the disciplinary proceedings are burred by limitation
and hence are liable to be quashed - Howeve1; having regard to
the seriousness of the allegations made ugainst the delinquent, in
exercin of power u!Art. 142, the Disciplinary Authority is directed
to continue the disciplinary proceedings - Constitution of India -
Art.142.
Partly allowing the appeals, the Court
A
B
c
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E
F
HELD: 1. A perusal of r. 9(2) of CCS (Pension) Rules, 1972
makes it clear that ifthe 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
G
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.
[Para 33) [351-H;
352-A-B)
333
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[2016] 6 S.C.R.
2. It is an undisputed fact that the appellant retired from
service on 31.08.2006. The Single Judge of the High Court by
way of judgment and order dated 18.05.2006 in Writ Petition No.
720 of 2002 quashed the disciplinary proceedings in the case
pertaining to the missing arms and ammunitions. However, liberty
was granted to the Disciplinary Authority/Enquiry Officer to
conduct the disciplinary enquiry afresh after supplying the copies
of the proceedings of the enquiry to the appellant. The said
judgment and order of the Single Judge was challenged by the
respondents by way of Writ Appeal No. 45 of 2006, in which the
Division Bench, by ,iudgment and order dated 07.11.2006 upheld
the order of the single judge of the High Court. It was only
pursuant to this that the fresh memorandum of charges dated
22.08.2008 was issued to the appellant, which was clearly beyond
the period of limitation of four years as provided for under the
CCS (Pension) Rules, 1972. [Para 34) (352-B-D]
3. In the case involving the contraband ganja as well, the
Single Judge of the High Court by way of judgment and order
dated 16.06.2006 passed in Writ Petition No. 805 of 2005 quashed
the departmental enquiry under the memorandum of charges
dated 14.05.1998. The Division Bench dismissed the Writ Appeal
No. 25 of 2007 filed by the respondents vide judgment and order
dated 13.11.2008 and upheld the order of the Single Judge. It
was pursuant to this that the fresh departmental enquiry was
initiated against the appellant on 16.10.2009 after obtaining
sanction from the President of India under Rule 9(2)(b)(i) of the
CCS (Pension) Rules, 1972. [Para 34] (352-E-F]
4. It is a well established principle oflaw 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. (Para 35] [353-B)
Babu Verghese & Ors. v. Bar Council of Kera/a & Ors.
(1999) 3 SCC 422: 1999 (1) SCR 1121- relied on.
5. 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
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
335
ANR.
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. [Para 37]
[354-C-F)
6. The order of sanction to be granted by the President of
India as provided under Rule 9(2)(b)(i) of the CCS (Pension)
Rules, 1972 is for initiation of the disciplinary proceedings against
the appellant, is a statutory exercise of power by the President.
The said Rules are framed by the President of India in exercise
of legislative power conferred under Article 309 of the
Constitution of India. The powers under Articles 77(3), 166(3)
and 309 operate in completely different fields and 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.
[Para 39] (356-B-D]
His Holiness Kesavananda Bharati Sripadagalvaru &
Ors. v. State of Kera/a and Anr. (1973) 4 SCC 225 :
1973 (0) Suppl. SCR 1 - followed.
B.S Yadav v. State of Haryana AIR 1981 SC 561 : 1981
SCR 1024; Sampat Prakash v. State of Jammu and
Kashmir AIR 1970 SC 1118 : 1970 SCR 365 - relied
on.
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[2016] 6 S.C.R.
7. 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 respondents
amounts to deprivation of the Fundamental Rights guaranteed to
the appellant under Part III of the Constitution oflndia. Therefore,
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. [Para 41) (360-E-GJ
State of U.P. & Am: v. Shri Krishna Pandey (1996) 9
SCC 395 : 1996 (3) SCR 183 - relied on.
State of MP. v. D1: Yashwant Trimbak (1996) 2 SCC
305 : 1995 (6) Suppl. SCR 128 - distinguished.
8. However, having regard to the seriousness of the
allegations made against the appellant, in exercise of power of
o
this Court under Article 142 of the Constitution of India, the
Disciplinary Authority is directed 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. [Para 43) [361--B)
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D. V. Kapoor v. Union of India (1990) 4 SCC 314: 1990
(3) SCR 697; Union of India v. Kewal Kumar AIR
1993 SC 1585 : 1993 (3) SCR 45; Railway Board
Representing The Union of India v. Niranjan Singh
(1969) 1 SCC 502 : 1969 (3) SCR 548; State of Madras
v. G. Sundarwn AIR 1965 SC 1103 - referred to. ·
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Case Law Reference
1996 (3) SCR 183
relied on
Para 22
1990 (3) SCR 697
referred to
Para 29
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1995 (6) Suppl. SCR 128
distinguished Para 29
1993 (3) SCR 45
referred to
Para 30
1969 (3) SCR 548
referred to
Para 31
AIR 1965 SC 1103
referred to
Para 31
H
1999 (1) SCR 1121
relied on
Para35
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
337
1981 SCR 1024
1970 SCR 365
ANR.
1973 (0) Suppl. SCR 1
relied on
relied on
followed
Para 39
Para 39
Para 40
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8323
of2016.
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.
WITH
C. A. No. 8324 of2016.
Lenin Singh Hijam, A. D. Tamboli, Ms. Momota Devi, Oinam,
Advs. for the Appellant.
P. S. Patwalia, ASG, Ms. B. Sunita Rao, B. Krishna Prasad, Advs.
with him for the Respondents.
The Judgment of the Court was delivered by
V. GOPALA GOWDA, J. I. Leave granted.
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2. The present appeals arise out of the common impugned
judgment and order dated 05.08.2013 passed by the Division Bench of
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the High Cou11 of Manipur at Imphal in Writ Appeal Nos. 39 and 40 of
2011, whereby the judgment and order dated 01.09.20 I 0 passed by the
learned single Judge of the High Court of Gauhati, Imphal Bench in
W.P. (C) Nos. 904 of 2008 and 264 of 20 I 0 was set aside.
3. The necessary facts required to appreciate the rival legal
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contentions advanced on behalf of the pai1ies are stated in brief hereunder:
The appellant was serving as a regular Commandant of 61"
Battalion, CRPF and at the time of incidents, was posted at Mantripukhri,
Imphal. He is alleged to be involved in two cases. The first case, i.e.
Civil Appeal arising out of the SLP (C) No. 30907 of2013 relates to
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missing of arms and ammunition. The second case, i.e. Civil Appeal
arising out ofSLP (C) No. I 0092of2014 relates to the alleged supply of
contraband gunja, by 11 CRPF personnel posted in the unit of the
appellant.
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[20 i 6] 6 S.C.R.
Between 03.06.1995 and 05.07.1995, one AK-47 rifle with 3
magazines and 90 rounds of7.62 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
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 (hereinafter
referred to as the "CCS (Conduct) Rules, 1964").
4. 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
relewnt portions of the said letter are extracted hereunder:
"It has been intimated by !GP, NI Sector, CRPF that one
AK-47 Rifle, 3 Magazines and 90 rounds of7.62 ammunition
of commanding 61 Bn at Mantripukhri, Imphal. A Court of
Inquiry was conducted. !GP 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 ..... .
. . . , , .. , . Thereforn, I am directed by IGP, N/Sector that to
request you to send your written statement to this office at
;m early ctate,,, ... "
5. Pursuant to the above letter, the appellant submitted his written
statement on 07.04.1998, explai11ing the reasons which resulted in the
loss of the said weapon and ammunition.
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6. By letter dated 24.06.1998, the Deputy Inspector General CRPF,
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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.
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
ANR. [V. GOPALA GOWDA, J.]
7. 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. l O. J 999, 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 of AK-47 Rifle along with its ammunition.
8. Aggrieved of the said action of withdrawal of imposition of
minor penalty and initiating departmental inquiry, the appellant filed Writ
Petition (C) No. 720 of2002 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 oflaw.
9. The learned single Judge allowed the Writ Petition vide judgment
and order dated 18.05.2006 by placing reliance on various decisions of
this 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 th!) appellant was
withdrawn by which the letter dated 24.06.1998 was withdrawn by the
IGP-NS.
.
10. In the meanwhile, the appellant retired fro111 service as a regular
Commandant/Police Officer, CRPF on 31.08.2006.
·
11, The respondenHJnion oflndia 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.
12, The Division B()nch of the High Court by w11y 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
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[2016) 6 S.C.R.
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.
13. 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.
14. 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:
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"Article-I
That the said Shri S.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
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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( I )(ii)
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and (iii) ofCCS (Conduct) Rules, 1964.
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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
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
ANR. [V. GOPALA GOWDA, J.]
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( I )(ii) and (iii) ofCCS (Conduct) Rules, 1964.
Article-III
That the said Shri B.S. Yarnbem, Cornmandant(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 ofone 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( I )(i)(ii) and (iii) of the
CCS (Conduct)Rules, 1964.
Article-IVThat the said Shri B.S. Yambem. Comdt. (u/s) while posted
and functioning in the aforesaid capacity during the aforesaid
period con11nitted an act of misconduct in that he passed
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verbal orders to issue service arms and ammunitions to exF
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
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and devotion to duty and acted in a manner unbecoming of
a Govt. Servant and thereby violated the provisions
contained in Rule 3( I )(i)(ii) and (iii) of CCS (Conduct) Rules,
1964.''
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[2016] 6 S.C.R.
15. 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.
16. 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) ofCCS (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 of2005
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.
1 7. 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
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 A11icles 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
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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!GP (Ops) Manipur and Nagaland. Two of the
above vehicles and 11 men were later intercepted and
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BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
ANR. [V. GOPALA GOWDA, J.]
apprehended by the Customs and Central Excise Authorities
at Didarganj check post near Patna on the night of I 11081
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( I),
(i),(ii)and (iii) ofCCS (Conduct) Rules, I 964.
Articfo-11
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 ofCRPF
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), (iJ. (ii) and (iii) ofCCS (Conduct)
Rules, 1964.
Article-Ill
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That the said Shri B.S. Yambem, Commandant (under
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suspension) while posted and functioning as Commandant
6 I Bn. CRPF, Mantripukhri. Imphal during August, I 995
committed a serious misconduct in that he suppressed the
information of arrival of Shri Ram Singh, Asst!. Comdt
(under suspension), 4 Ors. with Civil TATA 608 truck with
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civilian driver at Bn. 1-JQrs on I 5/16-8-95 and kept them
hiding at remote Coy location at Mayang, Imphal and shown
their arrival at Bn HQrs on 0245 hrs on I 7/08/1995 though
they were wanted by Central Excise authorities in
connection with the seizure of ganja from two trucks of his
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Unit at Didarganj check-post near Patna on the night of 11 I
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) ofCCS
(Conduct) Rules, 1964."
18. Aggrieved of the same, the appellant filed Writ Pctition(C)
No. 264 of20 I 0 before the High Cou1i of Gauhati, Imphal Bench.
19. 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 I" case i.e. Arms case) and Writ Petition No. 264
of2010 (filed against Memorandum of Charges dated 16.10.2009-issued
in 2"d case i.e. Ganja case), they were heard together and disposed of
by the learned single Judge vide common judgment and order dated
01.09.20 I 0. 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 I 0 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.
20. 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 of20 I 0, respectively) before the Division Bench of the
High Court questioning the correctness of the same.
21. 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
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
ANR. (V. GOPALA GOWDA, J.]
learned single Judge and upheld the decision of the respondents to hold
depa11mental 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. Hence, the present appeals filed by the appellant.
22. Mr. Lenin Singh Hijam, the learned counsel appearing on behalf
of the appellant contends that the initiation of the disciplinary proceedings
against the appellant by the Disciplinary Authority in the year 2008, after
long lapse of 13 and 14 years of the occurrence.of the alleged incidents
in the two cases is violative of Rule 9(2)(b)(ii) of the CCS (Pension)
Rules, 1972. In support of the same, reliance is placed on the decision of
this Court in the case of St(lfe o/U.P. &A11r. v. Sltri Krislt11" P(lndey1,
wherein it has been held that a government employee cannot be subjected
to a depm1mental enquiry after his retirement from service for any event
or occurrence which took place more than four years prior to the date of
the institution of the disciplinary proceedings against an employee.
23. The learned counsel further contends that the Division Bench
of the High Court has erred in bypassing the CCS (1',·11sin11) Rules, 1972
in extending the limitation period for initiating depm1mental enquiry against
the appellant, which action of the disciplinar) authority is contrary to the
Rules as well as the decision of this Com1 in the case of Sflri Kris///1(1
Pandey (supra).
24. The learned counsel further contends that neither the Inspector
General of Police (NS-CRPF) nor the Director General, CRPF could
have issued the Memorandum of Charges dated 22.08.2008 and
16.10.2009 for initiating fresh departmental enquiry proceedings against
the appellant as they were not the competent authority to do so. It is
further contended that the statutory safeguards provided for retired
government employees under the CCS (Pension) Rules, 1972 should not
have been overlooked by the respondents.
25. The learned counsel further contends that enquiry proceedings
that were initiated by the respondents under Rule 14 of the CCS (CCA)
Rules, 1965 in respect of the alleged incident of loss of weapon and
'(1996) 9 sec 395
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ammunition, were quashed by the learned single Judge of the High Court.
Subsequently, enquiry proceedings were initiated afresh against the
appellant under Rule 9(2)(b)(ii) ofCCS (Pension) Rules, 1972. Therefore,
the respondents cannot mislead this Court by justifying their action of
initiation of the disciplinary proceedings against the appellant on the ground
that the second enquiry proceeding which was initiated by them by issuing
the Memorandum of Charges was merely a continuation of the first
enquiry proceeding itself, when the same was initiated afresh by the
disciplinary authority after obtaining sanction from the President as
required under Rules 9(2)(b )(i) after the retirement of the appellant from
service and more than four years from the date of the alleged incidents.
26. As far as the case in the Civil Appeal arising out of the SLP
(C) No. I 0092of2014 is concerned (ganja case), the learned counsel
on behalfofthe appellant refutes the involvement of the appellant in the
same. It is contended that there were 11 CRPF personnel who were
charge-sheeted and booked in the said case and tried before the District
and Sessions Judge, Patna forthe alleged offences punishable under the
relevant provisions of the NDPS Act. The Trial Court acquitted the said
personnel. Further, no departmental enquiry was conducted against them.
Strangely, the departmental enquiry proceedings were initiated only
against the appellant and that too, afrer 13 years of the alleged incident
which is in violation of the CCS (Pension) Rules, 1972. The learned
counsel further contends that the above dcprutmental enquiry was initiated
against the appellant with a ma/a fide intention to harass him.
27. On the other hand. Mr. P.S. Patwalia, learned Additional
Solicitor General appearing on behalf of the respondents. has sought to
justify the common impugned judgment and order dated 05.08.2013
passed by the Division Bench of the High Court contending that the
High Court was right in allowing the Writ Appeals filed by the respondents
and that the same does not suffer from either erroneous reasoning or
any error in law which warrants interference by th is Court in exercise
of its appellate jurisdiction under A11icle 136 of the Constitution oflndia.
28. The learned ASG further contends that Rule 9(2)(b)(ii) of the
CCS (Pension) Rules, 1972 cannot come to the rescue of the appellant
as the departmental inquiry had already been initiated against the appellant
vide letter dated 15.03.1999, while he was still in service.
29. The learned ASG further places reliance on clause (a) of
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
347
ANR. [V. GOPALA GOWDA. J.)
sub-rule 2 of Rule 9 of the CCS (Pension) Rules. 1972 which reads thus:
A
"'9(2)(a) ... The departmental proceedings referred to in subrule (I) if instituted, while the Government servant was in
service whether before. his retirement or during his reemployment, shall, after the final retirement of the
Government servant, be deemed to be proceedings under
B
this ru'e and shall be continued and concluded by the
Authority by which they were commenced in the same
manner as if the Government servant had continued in the
service"
Further, reliance is placed by the learned ASG on the decision of
this Court in the case of D. V. Kapoor i: U11io11 of lmlia1, wherein this
Cou1t has held that the proceedings under Rule 9 of the CCS (Pension)
Rules, 1972 can be instituted or continued against a government servant
who has retired from service in those cases in which grave misconduct
is alleged to have been committed. In the case on hand, prior sanction of
the President was obtained by the Disciplinary Authority as required
under Ruic 9(2)(b)(i) of the CCS (Pension) Rules. 1972 for continuing
the disciplinary proceedings against the appellant. The learned ASG further
places reliance on the decision of this Court in the case of State of M.P.
v. D1: Yasllwallf Trim/}(lk', wherein it was held that personal sanction
of the Governor or President is not required and it is sufficient that the
sanction be issued by a duly authorized officer and is properly
authenticated. No court can look into the validity of such sanction in
terms of Articles 77(3) and 166(3) of the Constitution oflndia.
30. The learned ASG further contends that the legal principles
enunciated by this Court in the case of S/1ri Kris/ma P1111dey (supra)
cannot be relied upon in the instant case, as the factual situations in the
two cases are very different from each other. In the case ofS//ri Kris//1111
l'muley (supra). the concerned officer therein retired from service on
31.03.1987 and the proceedings against him were initiated on 21.04.1991.
This Court observed in the said case that it was clear that the incident of
embezzlement had taken place four years prior to the date of his
retirement and the embezzlement had resulted in pecuniary loss to the
State Government. The State Government did not take any action and
allowed the officer to escape from the provisions of regulations 351-A
'(1990) 4 sec 314
' ( 1996) 2 sec 305
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of the Civil Services Regulations. It was further observed by this Court
in the above case that the decision of this Court did not preclude the
Disciplinary Authority from carrying on with the investigation into the
offence and take action thereon. While in the instant case, the appellant
retired from service on 31.08.2006 and sanction was accorded by the
President of India within 3 years, that is, on 22.8.2008 for conducting
departmental enquiry against him, which is within the limit of four years
period as prescribed in the said Rules. Therefore, the learned ASG
submits that the facts of the instant case do not attract Rule 9(2)(b)(ii)of
the CCS (Pension)Rules, 1972. According to the learned ASG, the date
of institution of the disciplinary proceedings should be considered from
the date on which the Memorandum of Charges was issued. The learned
ASG further places reliance on the decision of this Court in the case of
U11ion of l11dia v. Kewal Kumar', wherein it was held that the
requirement of issuance of the Memorandum of Charges is not necessary
to be complied with when decision is taken by the competent Disciplinary
Authority to initiate disciplinary proceedings on the basis of an FIR.
Hence, the appellant cannot place reliance on the decision of this Court
on the case of Sltri Kris/ma Pandey (supra), when the charges framed
against him by the disciplinary authority pertain to a matter as serious as
smuggling contraband ganja.
31. The learned ASG further places reliance on the decisions of
this Court in the cases of Railwlly Bocml Represe11ti11g Tlte Union of
bulia v. Nirctnji111 Si11glt-' and Stllte of Mcu/ras 1( Ci Su11dllrl11116,
wherein this Court has held that the. High Court while exercising
jurisdiction under Article 226 of the Constitution of India should not
interfere with the conclusions arrived at by the Disciplinary Authority
after holding an enquiry, unless the findings of fact are not supported by
any evidence.
32. We have heard the learned counsel appearing on behalf of
both the pm1ies. The following essential questions would arise for our
consideration in the case:
I. Whether the impugned judgment and order passed by
the Division Bench of the High Cou11 correctly appreciates
the scope of Rule 9(2)(b )(ii) of the CCS (Pension) Rules,
'AIR 1993 SC 1585
'(1969) 1 sec 502
6 AIR 1965 SC 1103
BRAJENDRA SINGH YAMBEM v. UNION OF INDIA AND
349
ANR. (V. GOPALA GOWDA, J.]
1972 in light of the fact the disciplinary proceedings were
A
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?
B
Answer to Point Nos. l and 2
Since Points 1 and 2 are inter-related, the same are answered
together as under:
33. With reference to the aforesaid factual and rival legal
contentions urged before this Cou11, to answer the same, at the outset it
C
would be necessary to refer to the letter dated 20.02.2009 issued by the
DIGP (CR & Vig.) which reads as under:
"Directorate Ge11eral, CRPF
(Ministry of Home Affairs)
Sub : Department Enquiry Against Shri B.S.
D
Yambem, Commandant (Retd.)
A DE was conducted against Shri B.S. Yambem,
·commandant on the charges of sending vehicle of his Unit
along with men on 8.8.1995 out ofhisjurisdiction and when
the vehicles were seized by the Customs authorities for
illegal transshipment of Ganja, he made efforts to conceal
the same by manipulating documents. Article of charge is
at P/72 of C/file.
2. The DE was completed and a copy of !Os report was
served on the C/0. The C/O filed a WP No. 805 of2005 in
the Guwahati High Com1, Imphal Bench in which first the
Hon'ble Cout1 vide order dated 18.7.2005 stayed the DE
and then vide judgment dated 16.6.2006 (copy at P/55/c/
side), quashed the DE initiated vide Memo dated 14.5.1998
and repo11 of the IO. The Hon'ble Court, however, left it
open for the DA/IOP to conduct the DE afresh, after
supplying copies of proceedings of the COi and also the
English translated copies of statemer.,~s. of the· witnesses
and documents. recorded i.1~ 11ilil4.f. t~ ~he petitioner.
3. Against the al.Jove 0r.der. tlw Department filed W.A. No.
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A
25 of2007 in the Division Bench which was dismissed by
the Hon'ble Court on 13.11.2008 (copy at P/125c/Side).
The matter was referred to MOL and the ASG opined that
it is not a fit case for filing SLP (copy of relevant notes at
P/J 20c/side ).
B
4. In view of the above, the judgment dated 16.6.2006 of
the Hon 'ble Court is required to be implemented now which
would require taking the following actions:-
(i) Supplying copies of proceedings of the COi and
the English translated copies of statements of the
C
witnesses and documents recorded in Hindi to the
petitioner. This would be pre-requisite for sta1ting the
DE against the C/O afresh.
(ii) Memorandum dated 14.5.1998 will have to be
cancelled and DE against the C/O started afresh on
D
the same charges. However, fresh Memorandum
would be issued after supplying the C/O with a copy
of the COi file and English translation of the statement
of witnesses.
5. MHA may therefore like to see the case and convey
E
approval of Competent Authority to take the above actions.
Since the Officer has already proceeded on superannuation
(while under suspension) w.e.f3 I .8.2006, the DE ordered
afresh would be under Rule 9(2) ofCCS (Pension) Rules,
1972.
F
6. This has the approval of the DG.
G
H
(Ranjit Singh)
DIGP (CR & Vig)
20.02.2009"
(emphasis laid by this Court)
A perusal of the said letter makes it clear that the Disciplinary
Authority, following the judgment and order dated 16.06.2006 passed in
W.P. No.805 of2005 by the learned single Judge of the High Court and
judgment and order dated 13.08.2008 passed in W.A. No. 25 of2007 by
the Division Bench of the High Court initiated disciplinary proceedings
BRAJENDRA SINGH YAMBEM v. UNION OF INDIAAND
351
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