Departmental Inquiry
Departmental Inquiry
Departmental Inquiry
Principles of N a t u r a l J u s t i c e
Vesting of adjudicatory functions in persons, bodies or institutions
Normally adjudication of disputes and determination of rights of parties fell within the exclusive jurisdiction of courts. However, because of the tremendous increase of legislations including subordinate legislations, which by itself provide for complete administrative machinery for adjudication of disputes, the tendency of vesting adjudicatory functions in persons, bodies or institutions became increasingly pronounced with the passage of time. Another reason, which has weighed in favour of conferring on persons, bodies or institutions the power of adjudication, is the increased workload of courts, which they are not in position to cope with in spite of some expansion. Thirdly, the issues involved in such matters may not be purely legal ones and may not require the legal skills of judicial bodies for adjudication and decision. As these enactments by itself provide machinery for redressal of grievance or settlement of disputes, they generally oust the jurisdiction of courts to entertain complaints or causes, which are covered under the enactments. However, if adequate and effective machinery for redressal of administrative wrongs is not provided in the enactments, the courts may have jurisdiction to hear and redress those wrongs.
Different procedures
The procedure that is adopted by courts in adjudicating disputes and deciding the rights of parties is well known. A court is bound by all the rules of evidence and has to decide questions objectively based on evidence and materials produced before it. It is also bound by precedents, principles of res-judicata and estoppel etc. Two Codes, Code of Civil Procedure and Code of Criminal Procedure are available to regulate the business of courts. A court of law is also competent to decide the vires of an enactment. However, the persons, bodies or institutions vested with adjudicatory powers by statutes or legislations or rules [such as an Industrial Tribunal under the Industrial Disputes Act, a Commissioner for Workmen Compensation under the Workmens Compensation Act, an Authority under the Payment of Wages Act, an Income Tax Officer under the Income Tax Act, or a Disciplinary, Inquiry or Appellate Authority under CCS (CCA) Rules] cannot be equated with courts, nor can they be qualified as judicial authorities. They are better known as special
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tribunals or quasi-judicial authorities. However, the courts and these authorities have similarities in some respects, both the courts and the authorities are adjudicatory bodies and they exercise judicial functions. In other words, the special tribunals or the quasi-judicial authorities have some trappings of a court, but not all. A quasi-judicial authority is not bound by the rules of evidence, but is bound by the principles of natural justice. The essence of these principles can be told in the following words. Those whose duty is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a quasi-judicial authority whose duty is to mete out justice.
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subject matter of enquiry, the relevant statutory provisions etc. However, the broad principles underlying these maxims are to be observed by every quasi-judicial authority.
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which is the subject matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of principle of natural justice is a violation of Article 14 In Satyavir Singh v. Union of India, the court elaborated the nexus between Article 14 and the Principles of Natural Justice as under: The Principles of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the begetter of the principles of natural justice but is their constitutional guardianIt is now fairly established by a catena of authorities that the legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule. There, however, may be exceptional cases where a public interest may be of such an imperative nature either by reason of a sudden and unforeseen emergency coming into existence or because of some other pressing exigency of the State, which may weigh against such an opportunity being granted. Of course, opportunity of being heard need not necessarily mean an oral hearing in person or by a lawyer.
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The points to be noted from the Apex Courts observations quoted in the above paragraphs are:
(1)
Rules of natural justice operate only in areas not covered by any law validly made, Apart from the two main rules, many more rules came to be added to the rules of natural justice, The principles may apply to cases or matters even where the deciding authorities are not required by the law to act judicially, Violation of principles of natural justice is a violation of Article 14 of the Constitution, Natural justice cannot be placed in a straitjacket; its rules vary from case to case, and The legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule.
(2)
(3)
(4)
(5)
(6)
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charges. In a case where the prescribed appointing or disciplinary authority is unable to function as the disciplinary authority in respect of an official, on account of his being personally concerned with the charges or being a material witness in support of the charges, the proper course for that authority is to refer such a case to Government in the normal manner for nomination of an ad hoc disciplinary authority The judicial or quasi-judicial authority hearing or deciding the issue must be free from bias. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in particular manner, so much, so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartially in a particular case. The decision rendered by a biased authority cannot be a fair decision. It is due to this reason the Government of Indias orders on appointment of inquiry officers in departmental inquires emphasize that it is obviously desirable that only disinterested officers should be appointed as inquiry officers in departmental proceedings. There is no bar to the immediate superior officer holding an inquiry but as a rule, the person who undertakes this task should not be suspected of any bias in such cases. The authorities concerned should bear this in mind before an Inquiry Officer is appointed in a disciplinary case. It is clear from this O.M. that the person appointed as Inquiry Officer should not only be unbiased, but also that he should not be suspected of any bias. . It is worth remembering an old saying in this context -Judges, like Caesars wife, should be above suspicion. When the Cauvery Water dispute, in which states viz. Tamil Nadu, Karnataka, Andhra Pradesh and Kerala were parties, came up before the Supreme Court, a bench to hear and decide the dispute was constituted by the Chief Justice. The bench constituted by the Chief Justice included a Judge whose home state was Kerala. This judge promptly wrote to the Chief Justice to exclude him from the bench and to nominate in his place another judge from any of non-litigating states. If this judge had not withdrawn from the bench, there could have been allegation or suspicion of bias as he hailed from a state, which was one of the parties to the litigation. Another example is that of a Bombay High Court judge who was asked to hear the case relating to a smuggler. As soon as the case was assigned to him, there were reports in a section of the media that he had accepted some gratis from the smuggler at some time. The judge immediately wrote to the Chief Justice to transfer the smugglers case to another bench. It was immaterial whether the judge had really accepted gratis from the
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smuggler or whether the media report was false or otherwise. However, some suspicion on the judges ability to hear the case with an open mind was created and hence he withdrew from hearing and deciding the case. In both the above examples, it could have been possible for the judges to do justice. However, it is not enough to do justice. It should manifestly and undoubtedly be seen by others that justice has been done. It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.
Opportunity of hearing
The opportunity of hearing includes many components such as:
Opportunity to deny the charges and to establish innocence The delinquent must be given reasonable time and opportunity of meeting the allegations contained in the charge sheet. Opportunity to defend himself by examining witnesses (including himself, if he so desires) and cross-examining the witnesses produced against him. The prosecution witnesses must be examined in the presence of the delinquent, so that he may hear their evidence in support of the charge and cross-examine them before he is called upon to enter his defence.
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Where adequate notice regarding charges etc. is not givenadequacy of notice being variable according to nature of the proceedings Where the charges are vague and no materials are disclosed to explain them Where the delinquent is not allowed to call or examine material defence witnesses, or to examine himself Where the delinquent is denied the assistance of a defence helper Where the authority acts upon information collected behind the back of the delinquent employee Where the copy of the inquiry report is not supplied to the delinquent and this non-supply has caused some prejudices to the delinquent Where the authority inflicts penalty on extraneous consideration
(b)
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recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or 1 (c) Where the President, or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
In other words, as per proviso to Article 311 (2) of the Constitution no hearing shall be afforded in these three types of cases or situations. Thus, the rule of audi alteram partem is dispensed with by the Constitution itself 2 in these three types of cases or situations and they come to be the examples of types of cases of nil hearing. However, as per proviso to Rule 19 of CCS (CCA) Rules, the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (a) above, i.e. where the penalty is proposed to be imposed on the ground of conduct which has led to his conviction on a criminal charge. This is an example for cases where a minimum amount of hearing is given. The types of cases covered under (b) and (c) above do not have even the opportunity of representing against the (quantum of) penalty, i.e. even the opportunity of minimum hearing. Article 311 (2) mandates informing the civil servant of the charges against him and giving him a reasonable opportunity of being heard in respect of those charges where any of the three penalties viz. dismissal, removal or reduction in rank is to be imposed on the Government servant. What about the opportunity that is to be given when the penalty to be imposed is other than any of these three? [It may be remembered that ten penalties are listed under Rule 11 of CCS (CCA) Rules, out of which five are under minor category and the remaining, are under major category]. To find out the extent of hearing that is to be given in these cases or to find out how
It is not necessary that a situation which the makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a Government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of the charge sheet upon the Government servant or after he has filed his written statement thereto or even after the evidence has been led in part. In such a case also, the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word inquiry in that clause includes part of an inquiry-thus observed the Supreme Court in Union of India v. Tulsiram Patel, AIR 1985 SC 1416. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Art. 311 (2) or from giving any kind of opportunity to the concerned Govt. servant. (Union of India v. Tulsiram Patel, AIR 1985 SC 1416, para 70)
2
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far the rule of audi alteram partem applies in these cases, we have to advert mainly to Rules 14, 16 (1) and 16 (1-A). As per Rule 14 (1) of CCS (CCA) Rules 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 (37 of 1850), where such inquiry is held under that Act. The penalties specified in clauses (v) to (ix) of Rule 11 are major penalties and these penalties include dismissal, removal and reduction in rank. The stages of hearing to be given under this rule includes (a) drawing up of charges in detail, (b) informing the delinquent of the charges, (c) giving reasonable time to the delinquent for replying to the charges, (d) holding of inquiry where and in respect of the charges that are not admitted, (e) permitting the delinquent to take the help of any Government servant/retired Govt. servant or legal practitioner for his defence, (f) giving opportunity to both the sides for production of oral and documentary evidence, (g) examination and cross examination of witnesses, (h) submission of brief and so on. In other words, the hearing to be given is adequately reasonable and wide enough and is in conformity with audi alteram partem rule of natural justice. However, the hearing to be provided under Rule 16 (1) of CCS (CCA) Rules, that is before any of the minor penalties is imposed 3 , is not so wide as under Rule 14. Rule 16 (1) does not mandate holding of inquiry. Inquiry may be held or may not be held, depending upon the facts and circumstances of the case and as decided by the disciplinary authority. However, the procedure calls for issue of charge sheet and giving of reasonable opportunity to the delinquent to reply to the charges. An exception is made to the above procedure in Rule 16 (1-A). This provision mandates that if any of the three penalties mentioned therein is to be imposed, an inquiry shall be held in the manner laid down in subrules (3) to (23) of Rule 14, before imposing any such penalty. Thus, we have different kinds of hearing prescribed by different statutes or by different provisions of same statute. Therefore, what hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence
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or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. However, the audi alteram partem rule cannot be sacrificed at the altar of administrative convenience or celerity, for convenience and justice are often not on speaking terms.
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employee. A decision, which affects right of parties, requires predecisional hearing. Recovery of overpayment, held on facts of the case, could not be effected without giving opportunity of hearing. The Tribunal explained further: A system governed by rule of law reckons no decisions without an adjudication. Executive authorities cannot approximate themselves to oracles, or arrogate to them to ordinances. This is a basic requirement of natural justice, which has always been a part of adjudicatory process. The position can be summed up in the following words of the Supreme Court as expressed in Kesthav Mills Co. Ltd. v. Union of India, It is too late now to contend that the principles of natural justice need not apply to administrative orders or proceedingswhere administrative officers are concerned, the duty is not so much to act judicially as to act fairly.
Whether mere compliance with written rules will ensure compliance with the rules of natural justice?
Departmental proceedings are distinct from judicial/criminal proceedings and hence strict rules of evidence are not applicable to departmental inquiries. Though the Evidence Act itself is not applicable, essential principles of fair play envisaged in the Evidence Act are applicable. CCS
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(CCA) Rules provides for different types of hearing depending upon the nature and circumstances of the case. The procedure laid down is elaborate for enquiry under Rule 14 of the Rules, i.e. for imposing any of the major penalties. Mere following of the Rules or procedure might not ensure compliance with the principles of natural justice in toto. For example, sub-rule 19 of Rule 14 does not expressly provide for giving copy of the brief of the presenting officer to the accused before the accused is asked to submit his brief. However, the Calcutta High Court in a case held that the requirements of Rule 14 (19) and the principles of natural justice demand that the delinquent officer should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief. Subsequently, Government of India have decided that it will be but fair that the Inquiry Officer should first take the brief from the Presenting Officer, supply a copy of the same to the delinquent Government servant and take the reply brief from the delinquent Government servant. Prior to the decision of the Supreme Court in Managing Director, ECIL v. B. Karunakar, there was no provision in Rule 15 of CCS (CCA) Rules to forward copy of the Inquiry report to the delinquent and seek his representation on the same, before the disciplinary authority records his findings on the charges levelled against the delinquent Government servant. The Court in the said case held as under: It should thus be concluded that the supply of copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311 (2) and unfair, unjust and illegal procedure offending Article 14 and 21 of the Constitution and the principles of natural justice. The Rule, thereafter, was suitably amended. Similarly, there is no express provision in the CCS (CCA) Rules to grant personal hearing to the appellant by the appellate authority at the appellate stage. However, in Ram Chander v. Union of India, the Supreme Court held that the appellate authority must give a hearing to the Government servant concerned and pass a reasoned order. Dept. of Per. & Trg. O.M states that "as Rule 27 of the CCS (CCA) Rules does not preclude the grant of personal hearing in suitable cases, it has been decided that where the appeal is against an order imposing a major
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penalty and the appellant makes a specific request for a personal hearing, the appellate authority may after considering all relevant circumstances of the case, allow the appellant, at its discretion, the personal hearing." Conclusion The principles of natural justice are not incorporated as fundamental rights guaranteed by the Constitution and therefore these principles as such do not have constitutional status. However, certain Articles of the Constitution [like Article 14 and Article 311 (2)] take care of these principles. If the law enacted violates the principles of natural justice, the law would still be enforced. In other words, principles of natural justice can not replace or override the law, it can only supplement the law. As per second proviso to Article 311 (2) and as per Rule 19 of CCS (CCA) Rules, the audi alteram partem rule having been excluded, it cannot be introduced through backdoor to provide a hearing. If the law is silent as to the procedure to be followed in deciding the rights of parties, then opportunity for certain amount of hearing will have to be given, the amount being variable depending upon many factors.
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without cumulative effect and not adversely affecting his pension, and (iv) withholding of increments of pay. The major penalties are: (v) save as provided for in clause (iii) (a), reduction to a lower stage in the time scale 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 reduction and whether on expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay, (vi) reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Govt. servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Govt. servant was reduced and his seniority and pay on such restoration to that grade, post or Service, (vii) compulsory retirement, (viii) removal from service which shall not be a disqualification for future employment under the Government, and (ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.
Disciplinary Authority-meaning
The term Disciplinary Authority has been interpreted in the Rules to mean the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11. The disciplinary authorities for various categories of employees (including those of Ordnance Factories) are specified in the schedule to the Rules. As per the interpretation quoted above, there can be different disciplinary authorities for minor and major penalties or even for a particular penalty. However, none of the major penalties can be imposed on a Govt. servant by an authority subordinate to the appointing authority in respect of that Govt. servant.
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may institute disciplinary proceedings for the imposition of any of the major penalties.
Officers performing current duties of a post- whether can exercise statutory powers?
Power to institute disciplinary proceedings and to punish a Govt. servant is a statutory power, which has to be exercised by that authority to which power has been given by the statute. An officer appointed to perform the current duties of an appointment cannot exercise statutory powers, whether these powers are derived direct from an act of Parliament or from Rules like CCS (CCA) Rules. An Officer-in-Charge holding charge of an Ordnance Factory (when the General Manager is away) cannot initiate or finalize disciplinary action against an employee whose appointing/ disciplinary authority is the General Manager. 4
4
The General Manager of an Ordnance Factory was promoted and posted as Member, OFB. Another officer was asked to function as Officer-in-Charge of that factory. Thereafter, clarifications were sought from OFB on the following points. (1) (2) (3) Whether the Officer-in-Charge is competent to suspend any individual or to revoke existing suspension? Whether the Officer-in-Charge is competent to initiate/finalize disciplinary action for major penalty and or for minor penalty? Can the Officer-in-Charge issue penalty order for penalties decided for in the file by erstwhile General Manager? OFBs clarifications vide letter No. 1480/CL/A/VIG dated 9th November 1992
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Preliminary inquiry
When allegations of misconduct or misbehaviour against a Govt. servant are brought to the notice of the disciplinary authority for initiating disciplinary proceedings, it may order a preliminary enquiry or fact finding enquiry. The CCS (CCA) Rules do not call for holding a preliminary enquiry. So, if at all a preliminary enquiry is held, it is not held under any statutory rules and there is no prescribed procedure for holding such an enquiry. The purpose of holding the preliminary enquiry is not to find out whether the Govt. servant concerned is guilty or otherwise of the charges. The purpose is just to collect the facts and evidences relating to the allegation. If at all the officer who has conducted the preliminary enquiry has given an opinion that the concerned Govt. servant is not guilty of or there is not much truth in the allegation, yet it does not preclude the disciplinary authority from ordering a regular enquiry under the Rules. When sufficient evidences support the allegations of misconduct or misbehavior, there may not be any need at all for holding a preliminary enquiry.
Point 1: The Officer-in-Charge can suspend any employee or revoke the suspension with the approval of competent Disciplinary Authority, which should be taken within one month. Points 2 & 3: No.
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what should be the penalty in a particular case of misconduct. The general rule/principle is that the nature of disciplinary action and quantum of penalty must be proportionate/ commensurate to/with the gravity of the misconduct; it should not be shockingly disproportionate.
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conclude with the imposition of a major penalty or a minor penalty or with the exoneration of the delinquent Govt. servant. But in a proceedings instituted under Rule 16, no major penalty can be imposed. It is needless to say that decision on whether to commence the proceedings under Rule 14 or Rule 16 will depend upon the gravity of the misconduct alleged.
Drawing up of charges
If the decision is to initiate disciplinary proceedings under Rule 14, substance of imputations of misconduct will then have to be drawn up into definite and distinct articles of charge. These must be supported by statement of the imputations in respect of each article of charge containing all relevant facts including admission/confession, if any made by the delinquent Govt. servant. It must also be supported by a list of documents by which and a list of witnesses by whom, the articles of charges are proposed to be sustained.
Charge sheet
Written intimation to the employee of the proposal to proceed against him in respect of certain misconduct is called charge sheet. Generally a charge sheet under Rule 14 contains four annexures. Annexure I contains the articles of charge. Annexures III and IV respectively contain list of documents by which and list of witnesses by whom the charges are proposed to be sustained, whereas Annexure II will contain the statement of imputations of misconduct in support of each article of charge. Time limit for reply is specified in the covering letter.
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Amendment/withdrawal of chargesheet
A defective charge sheet may be amended. Liberty should be given to the employer to proceed afresh after serving the amended chargesheet on the delinquent employee. The disciplinary authority has the inherent power to review and modify the articles of charge or to drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the delinquent Govt. servant under Rule 14 (4) of CCS (CCA) Rules, 1965. Once the disciplinary proceedings are initiated against an official the proceedings cannot be closed without sending intimation to that effect to the delinquent Govt. servant. Disciplinary proceedings against an employee who has been dismissed or removed from service in another disciplinary case will stand suspended. These proceedings can be revived, if and when the official is reinstated in service on appeal.
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one weeks time in which to submit his defence. This period will commence from the date of actual delivery of the charge sheet and not from the date of charge sheet unless it is also delivered on the same date. As per paragraph 2 of the standard forms prescribed for charge sheet under Rule 14 and Rule 16, 10 days time is allowed to the charged employee to submit his statement of defence. If the charged employee so desires, a personal hearing by the disciplinary authority also is afforded to him at this stage.
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3. to withhold increments of pay with cumulative effect for any period, then an inquiry in the manner as laid down in Rule 14 shall be held before imposing any of these three penalties. These three items are variants or are derived of/from the penalty of withholding of increments of pay at item (iv) under minor penalty category. Generally for imposing a minor penalty under Rule 16, it is not mandatory to hold an enquiry. These three cases are exception to the general rule, and as per Rule 16 (1-A), if any of the above three penalties were to be imposed, it could be imposed only after holding an enquiry. However, the third item above has been held to be a major penalty by the Supreme Court and the Court has ruled that this penalty cannot be imposed without holding an inquiry. The condition of holding an enquiry before this penalty is imposed is taken care of by Rule 16 (1-A).
Manner of enquiry
From the above discussion it can be summed up that enquiry becomes necessary in the following circumstances:
1. Charge sheet under Rule 14 issued-charges (all or some) denied 2. Charge sheet under Rule 16 issued-disciplinary authority on its own
decided to hold an enquiry after considering the representation submitted by the charged employee
3. Charge sheet under Rule 16 issued- employee requested for an
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the three items of penalty listed in Rule 16-1A after considering the reply submitted by the employee
Common Proceedings
Where two or more Govt. servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Govt. servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. If the authorities competent to impose the penalty of dismissal on such Govt. servants are different, the order with regard to the institution of common proceeding may be ordered by the highest of such authorities with the consent of others. In case of cross complaints or cross accusations, common proceedings should be avoided.
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Departmental Proceedings
&
Criminal Proceedings
Why Departmental Proceeding and Criminal Proceedings?
The approach and the objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the employee is guilty of such conduct as would mean his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.
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but in a domestic inquiry, where the standard of proof is not the same, the accused person may have to participate more actively in the inquiry, put forth his case more in detail and even endeavour to prove it by adducing evidence. Such being the case, if the criminal trial takes place after the domestic inquiry the concerned person would be prejudiced; either he would have to disclose his case in the domestic inquiry before the trial starts or he would have to refrain from disclosing his case in the domestic inquiry and therefore lose that inquiry. That is the reason why it would be just and proper that the criminal trial takes place first and the domestic inquiry second.
Presumption of corruption
A presumption of corruption fairly and reasonably arises against an officer who cannot account for large accretion of wealth which he could possibly have saved from his known source of income. This principle has received statutory recognition in Section 5 (3) of the Prevention of Corruption Act, 1947, and its application in a departmental inquiry against an officer charged with corruption could not, therefore, be unjust or inequitable. In fact, this principle has been upheld by the Supreme Court in the case of Shri. G.R. Manekar v. Union of India.
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be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. The court finally held that the indisputable proposition is that there is no legal bar for both proceedings to go on simultaneously.
(ii)
(iii)
(iv)
(v)
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warrants the imposition of a penalty, 2. and if so, what the penalty should be.
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For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features. This, however, has to be done by the disciplinary authority itself. Once the disciplinary authority reaches the conclusion that the Govt. servants conduct was blameworthy and punishable, it must decide upon the penalty that should be imposed upon the Govt. servant.
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Departmental Inquiry
Applicability of Evidence Act-Principles of Natural Justice
Departmental Inquiry is the inquiry conducted as part of departmental proceedings. It may be conducted by the disciplinary authority itself or by an inquiring authority appointed by the disciplinary authority. Departmental proceedings are distinct from judicial/criminal proceedings and hence strict rules of evidence are not applicable to departmental inquiries. Though the Evidence Act itself is not applicable, essential principles of fair play envisaged in the Evidence Act are applicable. Apart from this, there are some important principles of natural justice, which are required to be followed in departmental inquiries. A few of them are (1) hear the other side - no one should be condemned unheard, (2) no person shall be a judge in his own case, (3) justice should not only be done but should manifestly seen to be done, (4) no one should be punished for the fault of others, and (5) no man shall be punished twice for one and the same fault. The standard of proof required in departmental inquiries is preponderance of probability and not conclusive evidence. Departmental Inquiry starts with the issue of charge sheet and ends with either exoneration or punishment of the charged employee. Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. As this Inquiry is an internal inquiry, conducted generally by an internal officer, it is also known as domestic inquiry.
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itself is not the inquiring authority. The findings recorded by the inquiring authority form an important material before the disciplinary authority, which along with the evidence (recorded) is taken into consideration by it to its conclusions.
decided to hold an enquiry after considering the representation submitted by the charged employee
3. Chargesheet under Rule 16 issued- employee requested for an
the three items of penalty listed in Rule 16 (1-A) In all these cases, the enquiry will be held in the manner as laid down under Rules 14 & 15 of CCS (CCA) Rules.
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Corresponding provision can be found in Rule 19 of CCS (CCA) Rules also, wherein it has been provided that in the aforesaid three types of cases, the disciplinary authority may consider the circumstances of the case and make such orders thereon as deems fit, notwithstanding anything contained in Rule 14 to Rule 18. However, as per first proviso to Rule 19, the concerned employee has to be given opportunity of making representation on the penalty proposed to be imposed on the ground of conduct which has led to his conviction on a criminal charge before that penalty is imposed on him. In other words, there is no second opportunity for him for defence against the charges because the charges were tried in the Court and the Court has convicted him.
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defending him against the said charge. The Inquiring Authority becomes functus officio after he signs and submits his report. In other words, his function and authority as inquiry officer come to an end after he signs and submits his report to the disciplinary authority.
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also eligible to function as defence assistant. While no permission is needed by the official who is charge-sheeted to secure the assistance of any other Govt. servant, and also for the latter to assist the delinquent Govt. servant, it is necessary for the Govt. servant who has been nominated as defence assistant to obtain permission from his Controlling Authority to absent himself from office in order to assist the delinquent Govt. servant during the inquiry. The Controlling Authority may refuse permission on reasonable/genuine grounds and such refusal would not amount to denial of reasonable opportunity to defend the case, as it is open to the delinquent Govt. servant to nominate another Govt. servant for rendering assistance. Govt. servants from other stations Govt. servant at Sl. No. 3 above can be engaged only if the inquiring authority permits the delinquent Govt. servant to engage such a Govt. servant having regard to the circumstances of the case, and for reasons to be recorded in writing. It has been decided, that a Govt. servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Govt. servant or the place of inquiry. Accordingly, in all cases where the Inquiring Authority rejects the request of the charged Govt. servant for engagement of a defence assistant from a place other than the headquarters of the charged Govt. servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Govt. servant to enable him to make a representation against the order, if he so desires, to the Disciplinary Authority. On receipt of the representation from the charged Govt. servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the Inquiring Authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order. Retired Govt. servants 1. The retired Govt. servant should have retired from service under the Central Government. 2. If the retired Govt. servant is also a legal practitioner, restrictions on engaging a legal practitioner will apply
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3. He should not have been associated with the case at investigation stage or otherwise in his official capacity 4. He should not act as defence assistant in more than five cases at a time. He should satisfy the Inquiring Authority that he does not have more than five cases in hand including the case in question.
Legal Practitioner
Normally legal practitioners are not permitted to assist either party in departmental proceedings. However, a charged employee may obtain the assistance of a legal practitioner to defend himself, as of right, where the presenting officer appointed to present the case of the department is a legal practitioner. In other cases, the disciplinary authority may allow the obtaining of such assistance if the facts and circumstances of the case so warrant e.g. where the matter has legal overtones or the issues involved are complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.
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Access to documents
Generally the copies of documents by which the charges are proposed to be sustained are supplied to the delinquent Govt. servant along with the charge sheet. If the copies of these documents are not supplied along with the charge sheet, the same will have to be given sufficiently in advance of the examination of prosecution witnesses. The charged employee should be permitted to inspect the documents other than specified in the chargesheet depending upon its relevance to the case of the delinquent Govt. servant. If he applies for copies of such documents indicating relevance thereof, such requests should be considered on merit and he should be given copies of such documents or permitted to inspect of those documents which are considered relevant to his case and which are to be relied upon in the inquiry. When copies are refused, reasons for refusal must be recorded.
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re-examine the witnesses and may be re-cross examined by the defence side. After all the prosecution witnesses are examined, the delinquent Govt. servant has a right to state his defence orally or in writing and to produce evidence on his behalf. He may produce witnesses and examine them. These witnesses may be cross-examined by the Presenting Officer. The charged officer cannot be forced to give evidence in the departmental inquiry. If he so desires, he can himself be a defence witness. If he produces himself as a witness, he will be examined by his assistant and may be cross-examined by the Presenting Officer. On the conclusion of inquiry, the Inquiry Officer shall question the delinquent Govt. servant on the circumstances appearing against him in the evidence, if the delinquent Govt. servant himself had not been a defence witness. If he had been a defence witness, it is left to the discretion of the inquiring authority whether to question him at all.
Additional evidence
The Inquiring authority may permit the Presenting Officer to produce additional evidence if the evidence already on record suffers from an inherent lacuna or defect i.e. it is not sufficient to arrive at a correct conclusion without recording further evidence. Such permission is not granted as a matter of course. New evidence cannot be permitted to fill up gaps in the evidence already recorded. Normally, the prosecution, which had sufficient time at its disposal to frame the charge sheet, is not likely to leave out any loophole in the evidence in the first instance. Recall of witness amounts to admitting additional evidence and will be treated accordingly. The proper stage for permitting additional/new evidence is
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when the prosecution has closed its case and the recording of defence evidence is yet to commence. If additional/new evidence is permitted to be brought in, due notice should be given to the delinquent Govt. servant and he should be permitted to inspect the document and to cross examine the witness and also to bring in new documents or defence witness to controvert the new evidence brought in by prosecution.
Brief
After both sides cases are over, the presenting officer and the defence assistant may submit their written/oral brief to the inquiry officer. At first the presenting officers brief will be recorded or taken and copy of the same will be given to the other party. Thereafter, the defence can submit its brief.
authority/inquiry
authority should not be stayed, or (c) Why the writ or an order should not be issued
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2. The proceeding should be stayed only when a court of competent jurisdiction issues an injunction or clear order staying the same. 3. No disciplinary proceeding, however, should be started subsequent to the initiation of the Court proceedings if they have effect to deterring or intimidating the petitioner from proceeding with the court case.
Ex-parte inquiry
If the chargesheet sent by Registered A/D to the employee is returned undelivered or if the chargesheet is delivered but not replied to by the employee in time, or if the employee does not appear before the inquiry officer despite notice communicated, or if he fails to comply with the provisions of CCS (CCA) Rules, the inquiring authority may hold an exprate enquiry. Normally notices of all hearings are communicated to the employee. The inquiring authority should record reasons for holding exparte enquiry and also list out the efforts made to ask/persuade the employee to take part in the inquiry. During the course of inquiry the delinquent Govt. servant is free to join the inquiry. The inquiry will continue from the stage at which the delinquent Govt. servant has agreed to participate. Generally there is no need to start the enquiry afresh. Whether it is an ex-parte enquiry or otherwise, procedure for holding the enquiry is one and the same, the only difference being that in ex-parte enquiry the defence side will be absent.
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as well as arguments advanced by both the parties. It is his duty to report clearly and precisely his conclusions and reasons therefor. Conclusions without reasons are not reckoned as conclusions. Reasoning is an indispensable part of decision. Moreover, a reasoned report will ensure its unassailability. As per sub-rule (23) of Rule 14 of CCS (CCA) Rules, the report prepared after conclusion of the inquiry shall contain (a) articles of charge and statement of imputations of misconduct and misbehaviour, (b) the defence of the Govt. servant in respect of each article of charge, (c) an assessment of the evidence in respect of each article of charge, and (d) the findings on each articles of charge and reasons therefor.
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with the findings of the inquiry officer, it must record reasons for its disagreement and record its own findings. No reason is required to be given if it agrees with the findings of the inquiry authority.
Imposition of Penalty
On the basis of the findings recorded by it, if the disciplinary authority is of the opinion that any of the minor penalties is to be imposed on the delinquent employee, it may impose on the employee any such penalty. For this purpose, no fresh proceedings under Rule 16 are necessary. On the basis of the findings recorded by it and on the basis of the evidence adduced during the enquiry, if the disciplinary authority is of the opinion that any of the major penalties is to be imposed on the delinquent employee, he may impose on the employee any such penalty.
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It is needless to say that if none of the charges is proved, the employee is exonerated of the charges and consequently, no penalty is imposed on him.
Speaking Order
It is already seen that departmental proceedings are quasi-judicial in nature. It is necessary that competent authority alone issue orders in these proceedings. Recording of reason by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal. It is therefore impressed upon all concerned that the authorities exercising disciplinary powers should issue self contained, speaking and reasoned orders conforming to the aforesaid legal requirements. A speaking order at its best be a reasonable one and at its worst a plausible one.
Finality of decision
When a decision is recorded by the disciplinary authority at the conclusion of the departmental proceeding, the decision is final and cannot be varied by that authority itself or by its successorin-office before it is formally communicated to the Govt. servant concerned. The decision taken by the disciplinary authority is a judicial decision and once it is arrived at it is final.
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(iii)
(iv)
The major penalties are: (v) Save as provided for in clause (iii) (a), reduction to a lower stage in the time scale 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 reduction and whether on expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay, Reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Govt. servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Govt. servant was reduced and his seniority and pay on such restoration to that grade, post or Service,
(vi)
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(vii) (viii)
Compulsory retirement, Removal from service which shall not be a disqualification for future employment under the Government, and Dismissal from service, which shall ordinarily be a disqualification for future employment under the Government.
(ix)
Rule 11 [of CCS (CCA) Rules)] classifies penalties that can be imposed on Government servants as minor and major. Secondly, several clauses of Rule 11 define and/or enumerate the nature of punishment imposable under the rules. The punishments to be imposed must be those that are enumerated in the rules. The authorities empowered to impose punishments can impose one or the other punishments specified in Rule 11 only and they cannot invent or add to any of the punishments extensively enumerated in the rule itself.
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recordable warning should be awarded. There is no restriction on the right of the disciplinary authority to administer oral warnings or even warnings in writing, which do not form part of the character roll. If a recordable warning has been issued to an officer as a result of disciplinary proceedings before the issue of this OM and the case of the officer concerned for promotion is still under consideration, he should be treated as having been censured. The officer will also have the right of representation against such warning and such representation shall be dealt with by the competent authority as if it were an appeal under the relevant disciplinary rules. Where the departmental proceedings have ended with the imposition of a minor penalty viz. Censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employee, kept in the sealed cover, will not be given effect to. But the case of the employee concerned for promotion/confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings. If the findings of the DPC are in favour of the employee, he may be promoted in his turn if the penalty is of censure or recovery of pecuniary loss to the Government by negligence or breach of orders. In the case of employees who have been awarded the minor penalty of withholding of promotion, promotion can be made only after the expiry of the penalty.
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The period specified under (iv) cannot exceed the period specified under (ii). It is clear from the above provisions that1. The reduction to lower stage in the time scale of pay is not permissible for an unspecified period or as a permanent measure, and After reduction the pay will remain constant at the stage to which it is reduced, for the period of reduction.
2.
As regards the penalty of reduction of pay at clause (iii) (a) in Rule 11, the clause itself states that the reduction cannot be for a period exceeding three years. Further, this reduction is to be without cumulative effect so to
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say that the period of reduction whatever specified, but not exceeding three years, will not operate to postpone future increments. Another condition is that reduction of pay as at (iii) (a) should not adversely affect the pension payable to the Government servant. Reductions of pay not covered under (iii) (a) will fall under clause (v).
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be a promotional post in relation to lower post to which he is sought to be reduced. A direct recruit to a post, it cannot be gainsaid, cannot be reverted to a lower post. It is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted.
Compulsory retirement
The penalty of compulsory retirement at clause (vii) is distinct from premature retirement resorted to for weeding out drones, unworthies and donothings from Government service. Compulsory retirement may be coupled with reduction of pension.
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circumstances, the action or order entailing penal consequences cannot be said to be an administrative action or order; on the contrary, it would amount to imposing a penalty. And when it amounts to imposing a penalty, certain amount of hearing should precede before imposing such a penalty. For example, break in service is an action, which is penal in nature as it results in forfeiture of past service. An order of forfeiture of past service cannot be made without observing the principles of natural justice. Another example is downward revision of subsistence allowance. It has been held that downward revision of subsistence allowance is not permissible without giving opportunity of representation to the suspended employee. A decision, which affects right of parties, requires predecisional hearing. Recovery of overpayment, held on facts of the case, could not be effected without giving opportunity of hearing. The Tribunal explained further: A system governed by rule of law reckons no decisions without an adjudication. Executive authorities cannot approximate themselves to oracles, or arrogate to them to ordinances. This is a basic requirement of natural justice, which has always been a part of adjudicatory process. Normally an employee who is medically unfit for service would be invalided or discharged. In place of invalidating or discharging him from service, if he were absorbed in a lower post, such absorption would not amount to punishment or casting a stigma.
Imposition of penalty
Imposition of penalty under the rules is a quasi-judicial function and only the prescribed punishing authority can do it. Punishing authority should not obtain guidance or comment of any superior or subordinate authority in this regard.
Quantum of penalty
The Rules do not particularize penalties. The penalties enumerated in the Rule are graded only. Quantum of punishment should be commensurate with the gravity of the misconduct. It should not be shockingly disproportionate. Punishing authorities should be more nor less paying than by self offences weighing and the punished should not be made to lament O judgment! You have fled to brutish beasts and men have lost their reason.
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Logic of Punishment
"Governments without the sword are but words, and of no strength to secure a man at all."
From time immemorial certain acts were forbidden in the human society and the society, by moral laws, prescribed punishment for the commission of these forbidden acts. For e.g., the Ten Commandments as per the Old Testament forbid the acts such as murder, adultery, theft, false accusation and so on. The moral laws, also known as God's laws, also prescribed punishments for commission of these forbidden acts. The punishments included death, injury, banishment, fine and so on. "Whoever hits a man and kills him is to be put to death. But if it was an accident and he did not mean to the kill the man, he can escape to a place, which I will choose for him and there he will be safe. But when a man gets angry and deliberately kills another man, he is to be put to death. If some men are fighting and hurt a pregnant woman so that she looses her child, but she is not injured in any other way, the one who hurt her is to be fined. But if the woman herself is injured, the punishment shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." Recompense of the loss suffered by the opposite party by the party, which caused the loss, was also ordered though strictly not as a penalty. "If there is a fight and one man hits another with a stone or with his fist, but does not kill him, he is not to be punished. But if the man who was hit has to stay in bed, but later is able to get up and walk outside with the help of a stick, the man who hit him is to pay for his lost time and take care of him until he gets well." Thus went the law and justice in olden times. It is almost the same law and justice that prevails even now, of course with necessary changes having been made with the progress or advancement of human society.
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Departmental penalties
Similarly, Rule 11 of CCS (CCA) Rules classifies departmental penalties that can be imposed on Government servants as minor and major. Secondly, several clauses of Rule 11 define and/or enumerate the nature of punishment imposable under the rules. Several other statutes also prescribe punishment or penalty for infringement of the provisions of those statutes.
Administration of justice
Law is the commander of what people should do and the forbidder of what people should not do. But law, without its implementation or enforcement, is useless just like an unused sword, rusty and ineffective to inflict any injury. Fond fathers keep sticks in the sight of their children to create terror in them. But the stick becomes more mocked than feared when they are not used when they are to be used. The Duke in Shakespeares Measure for Measure laments: We have strict statutes and most biting laws, the needful bits and curbs to headstrong steeds, Not to use, in time the rod becomes more mocked than feared; so our decrees, dead to infliction, to themselves are dead! Law is intended to strike terror in criminals and offenders and to bring them to justice. Law should not stand terrified at the sight of criminals and offenders rendering itself a scarecrow that fears the birds of prey. Not to use the sword of punishment in time or in other words, if its use is inordinately delayed, the whole proceedings against the charged man becomes vitiated and stale, leading to questioning of the very logic and propriety of punishment. "But this new governor awakes me all the enrolled penalties which have, like unused armour hung by the wall so long that nineteen zodiacs have gone round and none of them been worn; and for a name, now puts the drowsy and neglected act freshly on me. It is surely for a name", complains a character in 'Measure for Measure'. In this case, the act of offence alleged on the character as a fresh one, was committed nineteen zodiacs back. The penalties specified by law were there all these nineteen zodiacs, but were hung by the wall just like armours, which are not in use. And after a lapse of nineteen zodiacs, he has been charged for the drowsy and neglected act and the character accuses that this has been done not in the interest of law or justice but to earn a name for the authority which charged him.
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Logic of punishment
Departmental proceedings that may culminate in the imposition of penalty or otherwise are considered a matter of discipline within the organization. It is argued that these proceedings are imperative to the maintenance of discipline in the organization and to maintain its reputation and character. It is to be noted that organizations are made up of individuals. Those who persuade themselves to believe that a multitude of men can be induced to live by the rule of reason are dreamers of dreams and of the golden age of poets. A common power and an element of force is required to keep them all in awe for it is difficult to find a man who by nature sticks to the path of virtue. Penalty keeps the people under control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded punishment as a source of righteousness.
Deterrent Punishment
The famous Indian Poet Kalidasas work titled Meghdoot starts with the depiction of a punishment meted out to one Yaksha who was in the service of Vaishravana, the king of a kingdom somewhere in the foothills of Himalayas. Yaksha was employed as a bhandarapalaka (storekeeper). It is told that this Yaksha one-day committed an error in the discharge of
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duties, upon which Vaishravana, the king ordered him to be transported to Ramagiri Ashram in the South. Yaksha was newly married and he came to commit the error in the discharge of his duties as he was immersed in thoughts about his newly wedded beautiful wife. In fact he remembered his wife so much that he forgot his duty. Probably the king came to know of this fact before he inflicted the punishment. And for Yaksha, this punishment was too severe, as it was not mere transportation to a distant place, but also to live away from his dear wife till the punishment period is over. The message that the king wanted to signal to others in his service by inflicting such a harsh penalty on Yaksha was that whatever might be the reason, one could not afford to ignore his duties. Duty comes first and not the wife, howsoever pleasing and charming she might be. The penalty therefore here was exemplary 5 , so to say that it also served as a warning to all those who were like-minded with Yaksha, apart from making the repetition of such misconduct a bad bargain for the offender. This theory of punishment is known as 'deterrent theory. The main purpose of advertisement of penalties through Factory Orders is to send out a warning to the people of the flock of the punished that the wrongdoers will meet the same justice. "Then everyone else will hear what happened; they will be afraid, and no one will ever again do such an evil thing." If the evildoer is not punished or is left scot-free, many would dare to do the same evils. Those many had not dared to do that evil if the first that did infringe the edict had answered for his deed. When law sleeps over the punishable evils, many inferences would be drawn. Now the law is awake, takes note of what is done. and awards an exemplary punishment to the evildoer so that such evils are not conceived, hatched or grown and the evildoer, answering one foul wrong does not live to act another, "and one death might prevent many" (where the punishment is as extreme as death).
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punishments stop evils or crimes in society? Are not crimes on increase even according to the crime graphs produced by various agencies that enforce law? They say that by deterrent punishments the criminals get hardened and they are no longer afraid of punishments and take the punishments very lightly. "Bid that welcome which comes to punish us, and we punish it seeming to bear it lightly."
Preventive punishment
Departmental penalties like Compulsory retirement, removal and dismissal from service are preventive punishments, so also the punishments under IPC like exile, imprisonment and death. By these penalties/punishments the delinquent or the offender is disabled from repeating the misconducts or offences. The law threatens the persons with some pain if they do certain things, intending thereby to give the people a new motive for desisting from such activities. Though Rule 11 of CCS (CCA) Rules only lists the penalties that can be imposed on a Government servant and do not particularize penalties for various misconducts, there is a provision in the Rule as per which in every case in which the charge of possession of assets disproportionate to the 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 of removal from service or dismissal from service shall be imposed. This provision is intended to prevent the repetition of misconduct of possession of assets disproportionate to the known sources of income or of accepting any illegal gratification.
Reformative Punishment
In Shakespeares Measure for Measure, Isabel, a sister pleads to the judge: I have a brother who is condemned to die; I do beseech you, let it be his fault. What is advocated in these two lines is the reformative theory of punishment. What is implied is that the criminal or offender does not cease to be a human being even after committing the crime or offence. He must be taught and educated to lead a normal life. While awarding the punishment the judge must study the background of the criminal, his age, the circumstances under which he committed the crime, the object with which he committed the crime and so on. Correction and instruction both must work, as told by the Duke in the same play. In India the
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Sarvodaya/Socialist leaders like Jai Prakash Narayan, Vinoba Bhave and Madhu Limaye etc. stood for reformative theory of punishment and they had tried hard to tame the dacoits of Chambal Valley etc. by their reformative theory. Phoolan Devi, who became a Member of the Lok Sabha, was one of the criminals reformed to lead a normal life. The Probation of Offenders Act, 1958 is a milestone in the progress of modern liberal trend of reform in the field of penology. The Act distinguishes offenders between 21 years of age and those above that age and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. This Act is meant to reform juvenile offenders with a view to prevent them from becoming hardened criminal by providing an educative and reformative treatment to them by the Government. Provisions enabling reformation of criminals can be found in other Codes as well, for e.g. Sections 27 and 360 of the Code of Criminal Procedure.
Retributive Punishment
Retributive theory is based upon revenge and it existed in primitive societies. The very mercy of the law cries out, most audible, even from his proper tongue, An Angelo for Claudio, death for death. Thus went the revengeful punishment. One who was wronged was given liberty to have his revenge against the wrongdoer. Revenge is wild justice and is no more operative in the modern society.
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authorities should have some qualities. In the legal terminology this function is called a judicial or quasi-judicial function, depending upon the authority which imposes the punishment, i.e. whether it is a judge or a departmental authority. The power or right to punish is symbolically called holding of the sword of heaven or justice. It is told that he who holds the sword of heaven shall be as pure as severe, should set an example to others by his own life. He should be free from bias or predisposition of mind, should not try to weed the evils of others when he allows his own to grow. It is told that robbers will have authority for robbery when the judges themselves steal. Right or power to punish carries with it a duty to act in a fair manner. Punishment orders must be speaking orders. Recording of reason by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal."
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Quasi-judicial functions
Disciplinary Proceedings are quasi-judicial in nature
As is well known and settled by courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature. An effort is being made in this write up to find out as to what is meant by quasijudicial and what are the characteristics or attributes of quasi-judicial functions.
Quasi-judicial-meaning of
Originally, any authority other than courts was described as 'administrative authority. When the administrative authority was required to make decisions affecting the rights of parties, it was enjoined that the matter in question must be decided according to judicial forms and in accordance with the principles of natural justice. Soon it was realized that the administrative authority, when it decides a question according to judicial forms, could not be described as the one performing judicial functions because that was an attribute reserved exclusively for courts of law, nor it could described as pure administrative authority because it was required to act judicially and in accordance with the principles of natural justice. Thus the word quasi-judicial came to be invented to describe those functions which are not exactly judicial but which have some (not all) trappings or attributes of a judicial function.
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An administrative authority has no procedural obligation. But in case of quasi-judicial function, the law requires that the rules of natural justice must be applied in discharging a quasi-judicial function. While an administrative function may be delegated, a quasi-judicial function cannot be delegated in the absence of express statutory provision. [The Law Ministry has advised that an officer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers] The decisions of the administrative authorities are usually subjective, in the sense that they are reached without applying any standard at all, except that of expediency or policy. But quasi-judicial authorities are required to decide objectively, i.e. upon consideration of the proposal and the evidence adduced by the parties in support of either. Where the authority has to act exclusively upon the evidence, the decision is called quasi-judicial. The essential test for a quasi-judicial authority, therefore, is that it has a duty to follow the judicial approach in determining the questions of fact involved in the case or matter before such authority.
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representation, or after giving a reasonable opportunity of showing cause, used in the context of legislations, quasi-judicial function can be inferred.
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However, a partial delegation has been conceded. It may not be practically possible for a quasi-judicial authority to personally hear the evidence that may be presented before it. It has accordingly been conceded that it is permissible for such authority to delegate the function of hearing parties and taking evidence, provided the authority itself gives the decision after final hearing. The principles the one who decides must hear and the hearing is the hearing of evidence and arguments have undergone some changes. It is now permissible to appoint hearing officers or inquiry officers to hear and take the evidence. Thus it can be said that the function of making a quasi-judicial decision cannot be delegated to another person, in the absence of statutory provision authorizing such delegation. On the other hand, in the absence of anything in the governing statute to require that the authority that decides must also hear, natural justice is not denied in delegating the power to inquire and report to a subordinate authority, provided the quasi-judicial authority retains to itself the power to decide, after applying his mind to the findings of the Inquiry Officer as well as the representation on the Inquiry Officers findings of the person to be affected. This view has been taken in the context of Art. 311 (2). In fact CCS (CCA) rules authorize the disciplinary authority to conduct the inquiry itself or to appoint an inquiry officer to conduct the inquiry. Further, as per the rules, opportunity is to be given to the charged employee to represent on the findings of the Inquiry Officer. The final decisions with regard to whether the charges are established or otherwise, whether any penalty to be imposed or not and if so, what penalty, etc. are to be taken by the disciplinary authority itself. But the duty to hear cannot be delegated where the statutory provisions confer the person to be affected a right to be heard in person by the quasijudicial authority specified by the statute.
No interference by delegator
Where the statute authorises the delegation of a quasi-judicial power (just as in the case of delegation of power to inquire and report), the delegator cannot reserve to himself any power to interfere with the exercise of the quasi-judicial function by the delegate or to impose his own decision upon the delegate. But the reservation of administrative control, e.g. the time
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within which the power to be exercised, would not vitiate the delegation. While it would be permissible for a disciplinary authority to lay down a time frame for completion of an inquiry, it would not be permissible for him to interfere with the conduct of inquiry, e.g. to ask the inquiry officer to report that charges are established or otherwise.
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It is the fundamental principle of natural justice that in the case of quasijudicial proceedings, the authority empowered to decide the dispute between the opposing parties must be one without bias towards one side or other in the dispute. Judges, like Caesars wife, should be above
suspicion.
Minimum of Hearing
At the lowest level of the quasi-judicial procedure stands the cases where the statute confers upon the party to be affected only a right to make a written representation against the penalty proposed [e.g. proceedings under Rule 19 (1) of CCS (CCA) Rules] or an explantion to the charges brought against him [e.g. proceedings under Rule 16 of CCS (CCA) Rules]. In the result, we have different kinds of hearing prescribed by different statutes or by different provisions of same statute. Therefore, what hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent.
Decision taken by an officer in exercise of quasi-judicial function-whether can form basis of disciplinary proceedings against the officer?
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In Union of India v. K.K. Dhawan Supreme Court has ruled that disciplinary action can be taken in the following cases:
(i)
Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; If there is prima facie material to show recklessness or misconduct in the discharge of his duty; If he has acted in a manner which is unbecoming of a Government servant; If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of statutory powers; If he had acted in order to unduly favour a party; If he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be small, yet the fault is great.
(ii)
(iii)
(iv)
(v) (vi)
The Apex Court added that the above catalogued are not exhaustive and that for a mere technical violation or merely because the order is wrong and the action is not falling under the above enumerated instances, disciplinary action is not warranted. The Court further cautioned that each case will depend upon the facts and no absolute rule can be postulated.
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uthorities, which are by law invested with the power to affect the property of a person (employee) or to deprive a person of his profession, business or calling, are bound to give such person(s) an opportunity of being heard before it proceeds, and this rule is of universal application. Article 311 (2) of the constitution of India gives a mandate to the principles of natural justice by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. Rule 14 (1) of CCS (CCA) Rules also requires that no order imposing any of the major penalties shall be made except after holding an inquiry. Rule 16-1A also requires holding of inquiry in certain cases.
Opportunity to deny the charges and to establish innocence The delinquent must be given reasonable time and opportunity of meeting the allegations contained in the charge sheet. Opportunity to defend himself by examining witnesses (including himself, if he so desires) and cross-examining the witnesses produced against him. The prosecution witnesses must be examined in the presence of the delinquent, so that he may hear their evidence in support of the charge and cross-examine them before he is called upon to enter his defence. The opportunity to cross-examine the prosecution witnesses must be effective. Natural Justice is denied where the delinquent is not allowed to call or examine material defence witnesses, or to examine himself.
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If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them It follows that the judge or whoever had to adjudicate must not hear evidence or receive representations from one side behind the back of the other. Opportunity to the delinquent Govt. servant to cross-examine the prosecution witnesses is an important aspect and part of departmental inquiries. If this opportunity is denied, there is very much likelihood of the inquiry proceedings being declared as arbitrary and vitiated. Reasonable opportunity of being heard as used in Art. 311 (2) to include opportunity to examine/cross examine the witnesses and to rebut or controvert the evidences produced by the opposite party. One of the basic requirements of departmental inquiries is that no information is received or recorded behind the back of the delinquent Govt. servant. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of the person charged, are not to be treated as substantive evidence is one of the basic principles, which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. What hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent.
Evidence
Evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents produced for the inspection of the Court; such documents are called documentary evidence.
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Expert evidence
Expert evidence, oral or documentary, is obtained on special skill or processional knowledge, which may be relevant to decide the issues in a case. Examples are opinion of a handwriting expert, a medical practitioner, architect, engineer, and the like.
Proof of handwriting
The handwriting on a document may be proved either by direct evidence or by opinion evidence. Direct evidence means proof of a document by calling the person who wrote or signed the document or a person in whose presence the document was written or signed. Opinion evidence means the evidence of a person who is familiar with the handwriting or the signature of the person who is supposed to have written or signed the document; by comparing the handwriting with some admitted or known writing of such a person; by calling a hand-writing expert to examine the disputed handwriting/signature; or by any cogent circumstantial evidence. If the matter is referred to a handwriting expert he has to be examined during inquiry and is subjected to cross examination by or on behalf of the accused. The probative value of such evidence will depend upon the reasons stated by the handwriting expert and the nature and points noticed by him on which the two handwritings differ. The extent of similarity between the two is no criterion for arriving at the correct conclusion. Except where the inquiry officer is familiar with the handwriting or signature of the person supposed to have written or signed it, he should not rely on his own judgment alone in the case of a disputed document.
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Accuracy of what was recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. The subject matter recorded had to be shown to be relevant according to the rules of relevancy found in the Evidence Act.
Public documents
Public document is a document, which can be made use of by general public by way of inspection or making copies etc. Voters list is a public document and genuineness of entry made therein has to be presumed unless presumption is displaced.
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Circumstantial evidence
Circumstantial evidence is based on circumstances, which get established by either oral or documentary evidence on the point under inquiry. Though the circumstantial evidence has to be assessed with great caution but it will be wrong to think that circumstantial evidence is weak evidence. A well-knit circumstantial evidence can reasonably lead to a correct conclusion. For the purpose of a departmental inquiry, complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough.
Primary evidence
Primary evidence is the one derived from the original source. In other words, in the case of documents, the evidence based on the original document; and in the case of oral evidence, the statement made by the person who has personal knowledge of the matter.
Secondary evidence
Secondary evidence is the evidence drawn from the source, which is not primary. In the case of documents the secondary evidence is that which is drawn from certified copies or Photostat copies. In oral evidence, the hearsay evidence will fall in this category.
Hearsay evidence
In department inquiries, the hearsay evidence is not totally inadmissible. All materials, which are logically probative for a prudent mind, are permissible. There is no allergy to hearsay evidence provided it has some reasonable nexus and credibility.
Examination in chief
The examination of witness by the party who calls him is known as examination-in-chief. It is a process by which a witness narrates before the Inquiry Officer the facts, which are within his personal knowledge and are relevant to the matter under inquiry. The normal procedure is that a witness should state whatever he has to say, verbally and in the presence of the inquiry officer and the charged employee. However, where the statement of a witness recorded earlier during investigation or preliminary
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enquiry is read over to him in the presence of the inquiry officer, marked on his admission and a copy given to the charged officer and he is given an opportunity to cross examine the witness, it is not necessary that the witness should repeat verbatim the contents of the statement given by him earlier.
Recall of witness
It is clear from sub-rule (15) of Rule 14 of CCS (CCA) Rules that the discretion that has been conferred on the inquiring authority to call for new evidence is only before the close of the case on behalf of the disciplinary authority. It is not permissible to let in new evidence or to summon any fresh witness to fill up the gap in evidence that is on record when the case is closed on behalf of the disciplinary authority.
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Disallowing questions
It is a basic principle that in any inquiry the evidence that is let in shall have relevance to the real scope of the matter in issue. At the same time, the Inquiry officer has to be careful while disallowing any question as not being relevant, for it is likely to create an impression of bias. Hence any question that an Inquiry Officer disallows must be the one which is ex facie irrelevant. Even in such a case, the Inquiry Officer has to record the question and make a note in the proceedings that the question is being disallowed as not relevant to the issue.
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made repeated pleas for holding the enquiry at the place (Cannanore) from which he was transferred. These pleas were not considered and ex parte enquiry was conducted at Pune. When the applicant had urged physical ailment as well as financial difficulty in support of his request for the enquiry to be held at the place from which he was transferred, the request should have been agreed to. In departmental proceedings real and effective opportunity is to be afforded to the delinquent employee so as to establish his innocence, failing which, it would amount to denial of reasonable opportunity for defence, thereby violating the principles of natural justice.
Service of Notice
Notice of inquiry sent by Regd. Post to the Govt. servant against whom disciplinary action is initiated could not be served on the Govt. servant and was returned with an endorsement by the postman as left. The endorsement was not attested by the Post Master and there was no indication that the Govt. servant had refused to accept the notice. Accordingly, it cannot be presumed that the Govt. servant had absented himself from the enquiry proceedings deliberately and despite information. It was necessary for the respondents to get the notices pasted at the address left by the applicant, in the presence of witnesses or to publish the notices at least for one appearance, in the newspapers. Since no action was taken to ensure even constructive service of notice on the applicant, the ex parte proceedings are vitiated howsoever strong the evidence against the applicant may be.
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resenting Officer is appointed to present the case on behalf of the disciplinary authority in support of the articles of charge. Appointment of Presenting Officer is not mandatory. It is left to the discretion of the disciplinary authority to decide whether to appoint a Presenting Officer or otherwise. The relevant provision from CCS (CCA) Rules with regard to appointment of Presenting Officer is reproduced below: (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge. (emphasis added)
In similar context, the High Court of Karnataka has held as follows: 5. The use of the expression may in the sub-regulation having regard to the context in which it is used, in my view, cannot be read as containing mandatory direction to the Disciplinary Authority to appoint the Presenting Officer to present on its behalf the case in support of articles of charge. It is used purely as permissive and does not make obligatory upon the Disciplinary Authority to exercise the power and appoint a Presenting Officer in all domestic enquiry proceedings. In view of that, mere failure to appoint a Presenting Officer would not itself vitiate the enquiry.
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complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.
Presenting Officer is essentially a man of the disciplinary authority, unlike Inquiry Officer, who should be neutral. Presenting Officer should study the case thoroughly, visit the site of incident, if necessary, and discuss with the prosecution witnesses on what they have witnessed. He should link up their statements and build up a case and find out whether there is any missing link. He should collect all evidence for establishing the case and decide what documents to be produced, and whom to be produced as witness. He should frame questions for oral examination in such way that that answers to the questions would help establish the prosecution case. Unwanted or irrelevant questions should be avoided. Questions should be framed in sequence of the events and examination of witnesses also should be arranged accordingly. It is not necessary to follow the order of witnesses given in the annexure to the charge sheet.
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Production of evidences
If documents are to be produced, Presenting Officer should produce them through his witnesses. If any document to be produced, signatory to the document, if any, must be produced as witness so that the other party gets opportunity for cross examining the author or signatory to the document. This is not necessary in case of public documents. Presenting Officer should anticipate the defence of the delinquent Govt. servant. He should be ready for re-examining his witnesses and for crossexamining the defence witnesses. If required, he should seek permission for and produce additional evidence. If the delinquent Govt. servant or defence assistant asks irrelevant question in cross-examination, or either of them tries to intimidate or harass the prosecution witness, Presenting Officer should raise objection and get the objection recorded. He should submit a brief at the close of enquiry. Presenting officer is not entitled to examine the delinquent Govt. servant. However, he is entitled to cross-examine the delinquent Govt. servant, if the delinquent Govt. servant himself is a defence witness. If the delinquent Govt. servant is not a defence witness, Presenting Officer is not entitled to examine or cross-examine the delinquent Govt. servant. A person who is a witness in a case cannot be appointed as presenting officer in that case. This is true in case of Inquiry Officer also.
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Scope of Inquiry
As per the rules, inquiry need be conducted only in respect of such charges, which are not admitted. Further, the rules provides for a return of finding of guilt by the Inquiry Officer in respect of charges admitted by the delinquent Govt. servant. In respect of such charges, it is not necessary to introduce witnesses and documents to prove the charges.
Confession-coercion
While there could be no better evidence than ones own confession, yet it is not safe to act upon the same when it is alleged to have been extracted by coercion, especially by the affected party. Such a confession could still be used, if some other independent witness had corroborated it.
Wherever an application is moved by a Govt. servant against whom disciplinary proceedings are initiated under CCS (CCA) Rules, against the Inquiry Officer on grounds of bias, the proceedings should be stayed and the application referred, along with the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon. For this purpose the reviewing authority would normally be the appellate authority. Obviously any representation
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against the appointment of inquiry officer on grounds of bias should be made as soon as the inquiring authority has been appointed, but not after the proceedings have commenced and reached an advanced stage. No hard and fast rules can, however, be laid down and each case will have to be examined on merits on the facts and circumstances brought out by the concerned Govt. servant alleging bias on the part of inquiring authority. As the rules stand at present, it is not possible to deny to the Govt. servant the right to ask for review of any orders issued under CCS (CCA) Rules, 1965 at any time.
Denial of opportunity to refute the charges and to establish innocence Where the inquiry is confidential Where it is ex parte when the delinquent Govt. servant is willing to participate in the inquiry Where witnesses are examined in the absence of the charged employee Where the charged employee is not permitted to cross examine the prosecution witnesses Where the Govt. servant is not allowed to summon relevant material on which he wants to rely Where defence witnesses are not allowed to be produced
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Where the essential documents of the defence are not allowed to be produced Where the inquiry officer acts upon some materials which are not disclosed to the charged employee Where the inquiry Officer has a bias against the charged employee
The rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on what he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witness examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.
E.O. should allow the Govt. servant to inspect the documents specified in the charge sheet. The charged employee should be asked to submit a list of witnesses to be examined on his behalf. If copies of documents listed in the charge sheet are asked for, the same should be furnished at least three days before the commencement of examination of prosecution witnesses. If any document other than what is mentioned in the charge sheet is required by the delinquent Govt. servant to be produced, he
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should indicate relevance thereof. If the request is refused, reasons for refusal must be given.
If any document were not relied upon, non-furnishing of its copy would not amount to denial of opportunity for defence. No information should be received or recorded behind the back of the charged employee. The facts sought to be proved must be made in the presence of the delinquent Govt. servant. The Inquiry Officer must hear both sides and must not hear one side in the absence of the other.
If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them It follows that the judge or whoever had to adjudicate must not hear evidence or receive representations from one side behind the back of the other.
As per rules of evidence, a letter written by a witness cannot straight away be accepted as evidence unless the author of the letter is called to prove the document so that the charged employee would have an opportunity to cross-examine him. Where the witnesses who gave earlier statements did not appear before the inquiring authority and did not admit the correctness of the statements, no reliance can be placed on statements for the purpose of finding the official guilty. If any additional witness is to be examined, there should be adequate notice to the charged employee. Prosecution witness cannot be recalled after the examination of defence witnesses. It is not permissible to let in new evidence or to summon any fresh witness to fill up the gap in evidence on record when the case is closed on behalf of the disciplinary authority. It is left to the discretion of the Presenting Officer to examine all or some of his witnesses.
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If the Inquiry Officer disallows any question, he is bound to record that question and to make a note in the proceedings that the question has been disallowed. There is no duty on the prosecution to examine the witnesses named by the delinquent. The prosecution is entitled to examine only such witnesses whom they desire to examine in support of the charges.
Enquiry Report
The Inquiry authority may record its findings on a charge, which is different from the one framed by the disciplinary authority. However, such finding should be on the basis of facts admitted by the delinquent Govt. servant during the inquiry, or after having given him reasonable opportunity to defend himself against such charge. Inquiring Authority is not empowered to alter the original charge during the course of inquiry. He cannot substitute his own imputations for establishing a charge, which is different from the imputations given in the charge sheet. After the conclusion of the inquiry, a report has to be prepared by Inquiring Authority in which a detailed assessment of evidence in respect of each article of charge and the findings of the Inquiring Authority on each article of charge together with reasons therefor should be given. The standard of proof required in support of a finding need not measure up to the requirement in a criminal trial. A conclusion of guilt can be drawn if there is a preponderance of probability. Proof beyond reasonable doubt need not be insisted upon. The findings must be based on the evidence properly brought before him in the presence of both the parties and not on any information which he may receive otherwise. He cannot even take expert opinion (like the opinion of a handwriting expert) or technical advice without informing the
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parties or giving them an opportunity of commenting on such advice or cross-examining the expert.
The Inquiry Officer should not make recommendation regarding punishment as this is beyond the jurisdiction of the Inquiry Officer. The principles of natural justice is violated when a quasi-judicial authority, without exercising his own judgment and without giving the parties an opportunity of meeting the point of view adopted by a superior officer, gives his decision in accordance with instructions received from the superior officer. The person who is to decide must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. In departmental proceedings enquiry officer is important person. On him depends whether enquiry would be fair and impartial. He cannot play role of prosecutor. If he does, enquiry proceedings would be vitiated.
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Defence Assistant
When a mans reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor.
employee, or
2. Any Govt. servant posted in any office at the place where the inquiry is held,
or
3. Any Govt. servant posted at any other station, or 4. Any retired Govt. servant, or 5. A legal practitioner
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2.
3.
4.
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Legal Practitioner
Normally legal practitioners are not permitted to assist either party in departmental proceedings. However, a charged employee may obtain the assistance of a legal practitioner to defend himself, as of right, where the presenting officer appointed to present the case of the department is a legal practitioner. In other cases, the disciplinary authority may allow the obtaining of such assistance if the facts and circumstances of the case so warrant e.g. where the matter has legal overtones or the issues involved are complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.
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right and can be controlled, restricted or regulated by law, rules or regulations. Generally, in enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by an employee or not only fall to be considered and straight forward questioning which a person of fair intelligence and knowledge of conditions prevailing in the organization will be able to do will ordinarily help to elicit the truth. However, if the charge is of a serious and complex nature or having legal overtones, the delinquents request to be represented through a counsel or agent could be considered.
Exercise of discretion
The provision in the CCS (CCA) Rules relating to engagement of legal practitioner as defence assistant reads as follows: The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. It is clear from the rule that even though the Presenting Officer appointed by the disciplinary authority is not a legal practitioner, the disciplinary authority, having regard to the circumstances of the case can permit the delinquent to take the assistance of a legal practitioner. In other words, discretion has been vested in the disciplinary authority in permitting the delinquent Govt. servant to have the assistance of a legal practitioner where the Presenting Officer is not a legal practitioner. The rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the employee being pitted against a presenting officer who is trained in law. Legal Adviser or lawyer is for this purpose somewhat liberally construed and must include whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser. In the last analysis, a decision has to be
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reached on a case to case basis on the situational particularities and the special requirements of justice of the case. Thus the following principles emerge in regard to the employees right to be defended by a legal practitioner in a disciplinary enquiry.
(a) The right to be represented by a legal practitioner is not an element
lawyer or vest a discretion in the disciplinary authority or the inquiring authority, to permit the employee to be represented by a legal practitioner or other agent of his choice, denial of such permission on a request made by the employee would violate the principles of natural justice (1) if the presenting officer is a legal practitioner or a person legally trained or experienced; or (2) if the charges are of a serious and complex nature.
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Corresponding Rule
Provision corresponding to the above can be found in Rule 19 of CCS (CCA) Rules. The relevant portion is extracted below: 19. Special procedure in certain cases
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Notwithstanding anything contained in Rule 14 to Rule 18 (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, .. the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any such order is made in a case under clause (i) It is clear from the Constitutional provision as well as from Rule 19 of CCS (CCA) Rules that the requirement of holding an inquiry as mandated in Article 311 (2) does not apply to the exceptional case of departmental action against a Government servant on the ground of conduct which has led to his conviction on a criminal charge.
Conviction-what it is?
The term conviction used in this context includes conviction under any law, which provides for punishment for a criminal offence, whether by fine or imprisonment. To apply this proviso, it is not necessary for the Government to wait until the disposal of appeal or revision presented against the conviction. But if the conviction is subsequently set aside, on appeal or otherwise, the order of dismissal (where the Govt. servant has been dismissed) ceases to have effect. The act of a legal tribunal adjudging a person guilty of an offence is termed as conviction. Criminal charge is a charge of an offence and offence is a crime or act or omission punishable by law.
Judicial pronouncements
In Prem Kumar v. Union of India Madhya Pradesh High Court has observed as follows on departmental action as a consequence of conviction: (a) The departmental punishment or dismissal from service is not an essential and automatic consequence of conviction on a criminal charge.
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(b)
The authority competent to take disciplinary action against a servant convicted on a criminal charge has to consider all the circumstances of the case and then to decide: (i) Whether the conduct of the delinquent official, which led to his conviction, is such as to render his further detention in public service undesirable If so, whether to dismiss him or to remove him from service, or to compulsorily retire him; and If the said conduct of the official is not, such which renders his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him.
(ii)
(iii)
(c)
To retain in service or to remain in service is not a qualification, but a right in certain circumstances subject to the relevant constitutional or statutory provisions and service rules. The liability to be departmentally punished for conduct which has led to the conviction of the employee does not attach to the conviction, but attaches to the original conduct (misconduct) which constituted the offence of which the official has been convicted. Section 12 of the Prohibition of Offenders Act does not wash away or obliterate the conduct of the employee which has led to his conviction and does not, therefore, give him any immunity against departmental proceedings nor exonerates him from his liability to departmental punishment for such conduct if it amounts to misconduct under the relevant service rules; the original misconduct of the servant does not merge with his conviction so as to become non-existent after conviction.
(d)
(e)
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Section 12 of the Probation of Offenders Act, 1958 reads thus: Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this Section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence. Since it is statutorily provided that an offender who has been released on probation shall not suffer disqualification attaching to a conviction of the offence for which he has been convicted notwithstanding anything contained in any other law, instead of dismissing him from service he should have been removed from service so that the order of punishment did not operate as a bar and disqualification for future employment with the government.
What is probation?
Probation in this context means a system of releasing on suspended sentence, during good behaviour, young persons and especially first offenders, and placing them under the supervision of a probation officer who acts as a friend and adviser.
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misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the Appellate Court the order of dismissal based on conviction stands obliterated and the dismissed Government servant has to be treated as under suspension till the disposal of the appeal by the Appellate Court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the Appellate Court filed by the Government servant for taking action against him on the ground of misconduct which has led to his conviction by the competent Court of Law.
Departmental instructions
Duty of Govt. servants to inform superiors regarding conviction It is the duty of the Govt. servant who may be convicted in a criminal court to inform his official superiors of the fact of his conviction and the circumstances connected therewith, as soon as it is possible for him to do so. Failure on the part of the Govt. servant so to inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the penalty called for on the basis of the offence on which his conviction was based. Suspension As soon as a Govt. servant is convicted on a criminal charge, he may, in appropriate case, be placed under suspension, if not already suspended. Further action by disciplinary authority Having come to know of the conviction of a Government servant on a criminal charge, the disciplinary authority must consider whether his conduct, which has led to his conviction, was such as warrants the imposition of a penalty and if so, what that penalty should be. [What is implicit in this is that (1) each and every case of conviction may not deserve the imposition of departmental penalty and (2) even in deserving cases, the quantum of penalty can differ from case to case]. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the
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administration and other extenuating circumstances or redeeming features. This, however, has to be done by the disciplinary authority itself. Once the disciplinary authority reaches the conclusion that the Govt. servants conduct was blameworthy and punishable, it must decide upon the penalty that should be imposed upon the Govt. servant. This too has to be done by the disciplinary authority itself. The principle, however, to be kept in mind is that the penalty imposed upon the civil servant should not be grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case. [Text in parenthesis added. Emphasis (Italics) added.] These instructions are based on the Supreme Courts judgment in Tulsi Ram Patels case.
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Legal view is that in both the above cases, the order imposing the penalty on the Government servant on the basis of conduct, which had led to his conviction, should be set aside. Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person on a criminal charge by a higher court setting aside the conviction passed by a subordinate court or an inferior court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside.
3. Item (d) above will be deemed to be a case similar to honourable acquittal. All other instances referred to above are not to honourable acquittal. 4. In all cases of acquittal, the Govt. cannot institute departmental proceedings on the same facts traversed in the criminal case. In all cases of honourable acquittal, suspension will have to be regularized as duty with full pay and allowances. Acquittal due to non-availability of evidence is also a honourable acquittal. 5. In case of acquittal vide 2 above other than (d), the Disciplinary Authority can treat the suspension as justified. Even in case of acquittal proceedings may follow where the acquittal is otherwise than honourable.
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It seems to us that if on reading the judgment and order which acquits the government servant it appears to the government or the competent authority that the government servant has not been fully exonerated of the charges leveled against him, the government or the competent authority would be entitled to come to the conclusion that cl. (b) would apply and not cl. (a) (cl. (b) provides for payment of proportion of such pay and allowances as the authority may prescribe.) [State of Assam & anr. v. Raghava
Rajagopalachari, 1972 SLR 44].
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The appointing authority Any other authority to which the appointing authority is subordinate Disciplinary authority Any other authority empowered by the President by a general or special order Any authority lower than the appointing authority
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However, if the last authority in the above list has ordered the suspension, such authority shall forthwith report to the appointing authority the circumstances in which the order of suspension was made.
Powers of Officer-in-Charge
The General Manager of an Ordnance Factory was promoted and posted as Member, OFB. Another officer was asked to function as Officer-inCharge of that factory. Thereafter, clarifications were sought from OFB on the following points.
1. 2. 3.
Whether the Officer-in-Charge is competent to suspend any individual or to revoke existing suspension? Whether the Officer-in-Charge is competent to initiate/finalize disciplinary action for major penalty and or for minor penalty? Can the Officer-in-Charge issue penalty order for penalties decided for in the file by erstwhile General Manager?
OFBs clarifications vide letter No. 1480/CL/A/VIG dt. 9th Nov. 1992 Point 1: The Officer-in-Charge can suspend any employee or revoke the suspension with the approval of competent Disciplinary Authority, which should be taken within one month. Points 2 & 3: No.
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What are the circumstances under which a Govt. servant can be placed under suspension?
As per Rule 10 (1) of CCS (CCA) Rules, a Govt. servant may be placed under suspension:(a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.
was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7 (3) became pending.
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Trial
Trial is a judicial examination, in accordance with law, of a cause either civil or criminal, of the issues between parties, whether of law or fact, before a court that has jurisdiction over it. Rule 10 of the Rules does not authorize suspension of a government servant on the ground of conviction on a criminal charge. Hearing of appeal by a higher court against conviction is not a part of trial.
in
placing
Govt.
servant
under
While public interest should be the guiding factor in deciding to place a Government servant under suspension, competent authority may consider it appropriate to place a Govt. servant under suspension (1) when the Govt. servants continuance in office will prejudice the investigation, trial or
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inquiry (e.g. when there is an apprehension that he will tamper with witnesses or documents), (2) where his continuance in office is likely to seriously subvert discipline in the office in which he is working, (3) there is a public scandal and the suspension is necessary to demonstrate the firm resolve of the Govt. to strictly deal with officers involved in scandal, corruption etc. and (4) a prima facie case is made out against him which would justify his prosecution or his being proceeded departmentally, and the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service. The Govt. servant may be placed under suspension if he is suspected to have engaged himself in activities prejudicial to the security of the State.
Deemed suspension
A Govt. servant shall be deemed to have been placed under suspension by an order of the appointing authority (a) if he has been detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours, (b) In the event of conviction for an offence, if he is sentenced to a term of imprisonment exceeding 48 hours. The period of 48 hours in this case [i.e. in (b)] will be computed from the commencement of imprisonment after the conviction and intermittent periods of imprisonment, if any, will be taken into account.
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If a Govt. servant who has been detained for a period exceeding 48 hours is later on released on bail, such release will not affect the deemed suspension. The suspension will continue in force until competent authority revokes it.
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punishment in such a case, the finding against the Government servant disappears and he is restored to the earlier position. Consequently only if he was under suspension earlier, he will be deemed to have continued so with effect from the date of order of dismissal. On the other hand, the second category of cases attracting sub-rule (4) is entirely on a different footing. Sub-rule (4) governs only such cases where there is an interference by a court of law purely on technical grounds without going into the merits of the case. In cases governed by CCS (CCA) Rules, a court of law does not proceed to examine the correctness of the findings of the disciplinary authority by a reconsideration of the evidence. Unless some error of law or of principle is discovered, the court of law does not ordinarily substitute its own views on the evidence. But the matter does not end there. The scope of the sub-rule, for the purpose of automatic suspension has been further limited by the proviso as mentioned earlier, which reads as follows: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. The cases which attract sub-rule (4) are thus those where the penalty imposed on the Government servant is set aside on technical grounds not touching the merits of the case.
Deemed suspension whether permissible in a case where CAT declared removal from service invalid; but where liberty was given to hold fresh enquiry?
In Anand Singh v. Union of India & ors. CAT, Jodhpur has decided that deemed suspension is not permissible under Rule 10 (4) when court gave liberty only to hold fresh enquiry instead of holding further enquiry. This is because the proviso contemplates further enquiry and not fresh inquiry. In an earlier case, applicants removal from service was declared invalid by the Tribunal both on technical grounds and on merits. Liberty, however, was given to competent authority to hold fresh enquiry in accordance with law. This implied that disciplinary authority could issue fresh charge sheet or hold de novo proceedings.
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Whether there will be deemed suspension in the absence of an order made to that effect?
Whereas sub-rule (1) of Rule 10 of the Rules requires an order to be made keeping a government servant under suspension, sub-rule (2) does not contemplate an order being passed to keep a government servant under suspension. The opening words of sub-rule (2 of Rule 10 of the Rules say A government servant shall be deemed to have been placed under suspension by an order of appointing authority make this position clear. Sub-rule (2) creates a legal fiction that a government servant though not placed under suspension by an order of the competent authority, is in law regarded as having been placed under suspension by an order of the competent authority. The suspension which is brought about by the deeming provision contained in sub-rule (2) of Rule 10 may at any time be modified or revoked by the competent authority.
Entitlements
A Govt. servant under suspension or deemed suspension will be entitled to the following: (1) Subsistence allowance
This is equal to the leave salary, which the Govt. servant would have drawn had he been on leave on half pay. (2) Dearness allowance
Dearness allowance as admissible on the leave salary in (1) above will also be paid to him. (3) HRA and CCA
The employee under suspension is entitled to draw HRA and CCA also as per the orders regulating the payment of these allowances. (4) Children Education Allowance or Reimbursement of Tuition Fee etc. This is also admissible. (5) Leave Travel concession
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Members of family of the suspended employee can avail LTC; but he cannot as he cannot avail leave during suspension. (6) Medical reimbursement as per CS (MA) Rules
As the master-servant relationship continues during suspension, reimbursement of Medical expenses under CS (MA) Rules is permitted. (7) House Bldg. Advance
House Bldg. Advance can be availed provided necessary collateral security is furnished.
Review of allowance
suspension
and
amount
of
subsistence
An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. Such proceedings should be completed expeditiously in the public interest and also in the interest of the Govt. servant concerned. The subsistence
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allowance is paid by the Government so that the Govt. servant against whom an order of suspension is passed on account of the pendency of any disciplinary proceedings or a criminal case instituted against him could maintain himself and his dependents until the departmental proceedings or criminal case, as the case may be, comes to an end and appropriate orders are passed against the Govt. servant by the Government regarding his right to continue in service etc. depending upon the final outcome of the proceedings instituted against him. The very nomenclature of the allowance makes it clear that the amount paid to such a Govt. servant should be sufficient for bare subsistence in this world in which the prices of the necessaries of life are increasing every day on account of conditions of inflation obtaining in the country. It is further to be noted that a Govt. servant cannot engage himself in any other activity during the period of suspension. The amount of subsistence allowance payable to the Govt. servant should, therefore, be reviewed from time to time, even though there may be no rule insisting on such review. In doing so the authority concerned no doubt has to take into account whether the Govt. servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. If the Govt. servant is not responsible for such delay or even if he responsible for such delay to some extent but is not primarily responsible for it, it is for the Government to consider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not.
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Superannuation pension
while
under
suspension-provisional
If an employee attains the age of superannuation during suspension and before the termination of departmental/court proceedings, he should be granted provisional pension, which should be equal to 100% of pension otherwise admissible to him. He will cease to draw subsistence allowance. No gratuity will be paid at this stage.
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of suspension will be treated as non-duty. Decisions on these matters will be taken only after issuing a show cause notice to the concerned employee. When the suspension period is treated as non-duty, the employee has got the option to convert the period of absence from duty due to suspension to leave of any kind due and admissible by an order of the competent authority.
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A Govt. servant was warned in writing for a misconduct by one of his superiors who is subordinate to the Disciplinary Authority. Thereafter, for the same misconduct, disciplinary authority initiated regular departmental proceedings. Is the initiation of departmental proceedings by disciplinary authority foreclosed by the issue of warning by the Govt. servants superior? In a preliminary inquiry, nothing incriminating was found against a Govt. servant. Despite this, regular departmental proceedings were initiated against him. How far this is right? A charge sheet issued to a Govt. servant under Rule 14 was not accompanied by the copies of statements of witnesses and other documentary evidences. On this plea, the charged employee refused to reply to the charge sheet. Comment? In response to a charge sheet issued to a Govt. servant under Rule 14, he merely denied the charges. But the disciplinary authority insisted for a detailed representation setting out the defence of the Govt. servant. Comment? A charge sheet under Rule 16 was issued to a Govt. servant who merely denied the charges and demanded an inquiry. What is the next course for the disciplinary authority? A defence assistant who had two cases in hand was nominated for a third case. EO did not accept the nomination stating that he was not permitted to assist in more than two cases. Comment? A defence assistant who was assisting an employee was nominated by another employee. Is this nomination acceptable? Nomination in respect of defence helper from another station was accepted by E.O. The accused demanded payment of TA/DA for defence helper? Is it payable by the Govt.? A charged employee nominated a legal practitioner as his defence helper on the reasons that the case is complicated, it involves legal
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questions, evidences are voluminous and P.O. is trained etc. This nomination was rejected on the reason that PO is not a legal practitioner. Comment?
10.
A Foreman, a Chargeman Gr. II, a Supervisor and a Store Keeper were involved together in a case. The General Manager decided that common proceedings should be held against them. Comment? In a case where the Govt. servant was unauthorizedly absent from duty and where the notices sent to him at his last known address were returned undelivered for the addressee being not available there, the disciplinary authority, on these reasons, dispensed with the inquiry and removed him from service. Comment? An accused nominated a Govt. servant of another station as his defence helper. EO sent this nomination to GM. GM marked it to DGM (A) who replied to the accused that he couldn't be permitted to have the assistance of a Govt. servant from another station. Comment? In a case where a Govt. servant was dismissed from service; but was subsequently reinstated in service as a result of court order, the Govt. decided that since the reinstatement including payment of full pay and allowances for the suspension and interruption period and treating the period of interruption as duty etc. of the Govt. servant was caused by the disciplinary authority by careless and negligent application of rules/procedures, the amount payable to the Govt. servant should be recovered from the disciplinary authority and also he should be proceeded against departmentally. Comment? While an ex-parte inquiry was in progress, the accused came and expressed that he is now agreeable to associate himself with the inquiry; but it should be started afresh. Comment? When an EO was appointed in a particular case, the accused alleged bias against the E.O. But unmindful of his allegation, E.O. proceeded with the inquiry. Comment? Disciplinary authority found that the evidences were not properly appreciated in an inquiry. He ordered for fresh inquiry. Comment?
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16.
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17.
Disciplinary authority found that there were procedural flaws in an inquiry. He remitted the case back to EO for further inquiry. Comment? An Officer was conducting a dept. inquiry. He retired before completion of the Inquiry. But he was permitted to continue with the inquiry. Comment? A State Govt. servant of the same station was nominated as defence helper by a Central Govt. servant. This was not accepted on the plea that the defence helper of a Central Govt. servant also should be Central Govt. servant. Comment? In a dept. proceeding under R.14, the disciplinary authority itself conducted the inquiry. Comment? In an appeal to the Appellate Authority at Calcutta, the appellant (from Ambarnath) requested for a personal hearing, which was agreed to. Subsequently, the appellant requested for permitting his defence assistant to be with him to assist him during the personal hearing by the Appellate Authority. He also demanded TA/DA for both for appearing before the Appellate Authority. Comment? In a case where the penalty of dismissal from service was imposed upon a Govt. on the ground of conduct which had led to his conviction, and where he was reinstated in service as a result of acquittal by higher court, the period between dismissal and reinstatement was not treated as period spent on duty and he was not paid full pay and allowances. Comment? A High Court in a judgment acquitted a Govt. servant of the charges levelled against him. But the Court observed in the judgment that he had illicit relationship with a woman for a fairly long period. On the basis of this observation of the High Court, charge sheet was issued to him; but he denied the charges. In the inquiry report, EO recorded that the charge stands established on the basis of court judgment and he was punished accordingly. Comment? On a charge sheet under Rule 16, penalty of withholding of increments for two years with cumulative effect was imposed on a Govt. servant after considering the representation given by the employee. Can the penalty sustain?
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25.
A suspended employee was not paid HRA though he was not provided with Govt. accommodation; but was incurring expenses on account of House Rent. Comment? A person obtained Govt. service by fraudulent means, i.e. he was not eligible or qualified for his initial appointment. But, un-noticed of this irregularity, he continued in service and became permanent. Subsequently, it came to be noticed that he was not eligible or qualified for the appointment. What action can be taken at that stage? In a case where pecuniary loss was caused to the Govt. by negligence/breach of orders, it was decided, after following the due procedures, to recover the loss in part. Also it was decided to impose another penalty of withholding of one increment for one year for causing the loss to the Govt. by negligence/breach of orders. Comment? A Govt. servant was suspended from 1.12.98. The departmental proceedings against him were completed in June, 99. He was removed from service w.e.f. 1.12.98, i.e. from the date of suspension. Comment? Due to departmental delay, the subsistence allowance payable to a suspended employee was not paid for months together. But during the period when allowance was not paid, dates for enquiry were fixed and communicated to the suspended employee. But he did not attend and the enquiry was held ex-parte. Comment? In a case of departmental action, the final (penalty) order issued was in a cyclostyled form. Comment? In an inquiry under Rule 14, a request was made by the charged employee to the Inquiry Officer to permit him to avail of the assistance of a Govt. servant from another station. This request was not agreed to by the Inquiry Officer. The accused submitted an appeal to the Disciplinary Authority impugning the decision of the Inquiry Officer. The Disciplinary Authority rejected this appeal stating that the order of the Inquiry Officer is an interlocutory order against which no appeal shall lie. Comment? After an inquiry under Rule 14, the Inquiry Officer recorded a finding that the charges against the accused Govt. servant are not established. The Copy of the Inquiry report was given to the
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accused. Since the Inquiry Officer had recorded that the charges are not established, the accused merely stated that the findings are just and he did not want to say anything against it. Thereafter, the disciplinary authority disagreed with the findings of the Inquiry Officer and recorded its own findings and imposed penalty on the accused Govt. servant. State whether the disciplinary authority committed any procedural error?
33.
In an Inquiry under Rule 14, the Presenting Officer appointed was not a legal practitioner. The accused nominated a retired Govt. servant as his defence assistant. This retired Govt. servant was also a legal practitioner. Can the accused be permitted to avail of the assistance of a retired Govt. servant who is also a legal practitioner? A Muslim male Govt. servant married for the second time while his first spouse was living and not divorced. He was charged under Rule 14 for bigamy. He argued that being a Muslim, his personal law permits him to marry four times and hence no departmental action shall lie on account of his second marriage. Comment on the merit of his argument? A Male Govt. servant had illicit relationship with a woman. He was proceeded against under Rule 14 for misconduct. He replied that having illicit relationship with a woman is not misconduct and hence no disciplinary action shall lie against him. Comment on the merit of his argument? Mr. Keshav, a Govt. servant had given a declaration that he is married to one Shantidevi. He had also nominated Shantidevi for various benefits. Later on, Shantidevi made a complaint to the authorities that Mr. Keshav has entered into second marriage during her lifetime without divorcing her. In support of this statement, she produced a Voters list in which Keshav and Nirmaladevi were shown as husband and wife. On the basis of this complaint Keshav was charged for bigamous marriage and an inquiry was conducted in which the charge was found established. Comment? In an inquiry under Rule 14, the accused did not present himself as a defence witness. The Inquiry Officer recorded a finding that the charges are established without putting any question to the accused. Comment on the action of the Inquiry Officer in recording the findings?
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38.
In a departmental proceeding under Rule 14, the charge sheet was sent to the suspended employee by post. As there was no reply to the charge sheet, Inquiry was ordered. When the copy of the Inquiry Order was received by the suspended employee, he charged the Disc. Authority of violating the rule, i.e. ordering the inquiry without issuing charge sheet to him. What was the flaw? In a case of departmental action on the ground of conduct which has led to conviction on criminal charge of an employee, the employee pleaded that no action shall lie because his appeal against the conviction is pending in the higher court. Comment on the merit of his plea. In a case of departmental action on the ground of conduct, which has led to conviction on criminal charge of an employee, the employee pleaded when he was issued with a notice of proposed penalty, that no notice can be served because the sentence of conviction has been suspended by higher court. Comment on the merit of his plea.
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Appendix
TA/DA to retired employees appointed as Departmental Inquiry Officers
The undersigned is directed to say that as per Government of India Order No. 5 below SR-154 there is a provision to allow TA to witnesses, Presenting Officers and Defence Assistant but there is no express provision relating to payment of TA/DA to retired Government Officer appointed as an Inquiry Officer. This may be that normally the serving Government Officers are appointed as the Inquiry Officers. Some Departments have raised a question as to what rate of TA/DA is to be allowed to the retired Government Officers appointed as Inquiry Officers under the CCS/CCA Rules. 2. The question has been considered in this Department and it has been decided that the retired officers appointed as Departmental Inquiry Officers should be given the same TA/DA as he/she was entitled to immediately prior to retirement. 3. In so far as the persons retired from Indian Audit and Accounts Department is concerned, these orders issue with the approval of the C & AG.
[Govt. of India, Ministry of Finance, O.M. No. 19016/1/99-E-IV dated 16-8-1999]
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for the purpose of such recovery. The DG, P & Ts instructions would, therefore, be treated as unwarranted. Therefore, the implication of this OM is to recover the entire loss from the delinquent official but the recovery may be spread over till entire loss is recovered.
[Govt. of India, Dept. of Per. & Trg., O.M. No. 11012/1/2000-Estt. (A) dated 6-9-2000]
II.
No honorarium is payable when the charge sheet is not contested by the delinquent Govt. servant, and the charges are accepted by the DGS in the first hearing itself. The amount of honorarium to Inquiry Officers shall be limited to Rs. 250/- as the minimum and Rs. 500/- as the maximum. Similarly, Presenting Officers are entitled, in deserving cases, to receive a sum of Rs. 100/- as minimum and Rs. 300/- as the maximum, as honorarium.
[OFB, Kolkata letter No. 1480/GENL/A/VIG/HON dated 16th April 2001]
IV.