Subject : Handbook for Inquiry officers and Disciplinary authorities
Vigilance Handbook Updated till 2013
Subject matter of the circular
HANDBOOK FOR INQUIRY OFFICERS AND DISCIPLINARY AUTHORITIES
TITLE Page Number
1. Disciplinary Proceedings: Context and Overview 1-2
2. Role of Disciplinary Authorities 3-8
3. Constitutional Provisions Relating to Disciplinary Proceedings 9-16
4. Principles of Natural Justice 17-24
5. Scope and Extent of Applicability of CCA Rules 25-31
6. Handling Complaints 32-34
7. Preliminary Investigation 35-40
8. Action on Investigation Report 41
9. Consultation with Central Vigilance Commission 42-56
10. Suspension 57-71
11. Minor Penalty Proceedings 72-75
12. Drafting and Issue of Charge Sheet 76-87
13. Appointment of Inquiring Authority and Presenting Officer 88-91
14. Functions of Inquiry Officer 92-100
15. Role and Functions of the Presenting Officer 101-110
16. Defence Assistant 111-113
17. Conduct of Inquiry 114-123
18. Brief of the Presenting Officer 124-131
19. Evaluation of Evidence 132-138
20. Ex-Parte Inquiry 139-143
21. Post Retirement Proceedings 144 -154
22. Common Proceedings 155-157
23. Borrowed and Lent Officers 158-159
24. Report of Inquiring Authority 160-166
25. Action on Inquiry Report 167-172
26. Consultation with the UPSC 173-176
27. Quantum of Penalty 177-184
28. Speaking Orders 185-190
29. Appeal, Revision and Review 191-200
30. Action on Receipt of Court Orders 201-204
31. Scope of Judicial Scrutiny 205-213
32. Sample Forms 214-239
CONTEXT AND OVERVIEW
1. Human resource is perhaps the most valuable asset of any organisation. It is the human resource which exploits other resources in the organisation so as to achieve the organisational objectives. The aim of the Human Resource Department, by whatever name it is known such as Personnel Department, P&IR, etc, is to get the best out of the human resource of the organisation. For achievement of this purpose, there are many sub-systems in the Human Resource Department such as Grievance Handling, Counseling, Performance Appraisal, Career Planning, Training & Development, etc. Reward and Punishment system is one of the sub-systems under the Human Resource System. It is essential that every organisation, whether government or semi-government or private, should have a well established reward and punishment system to ensure that the people are made to work towards the fulfillment of the organisational goals. While the reward system will encourage the employees to work better towards the achievement of organisational goals, punishment system is used to prevent people from working against the organisational goals.
2. Misconduct, or non-conforming behaviour, as it is sometimes called, can be tackled in many ways such as counseling, warning, etc. In extreme cases such as, criminal breach of trust, theft, fraud, etc. the employer is also at liberty to initiate action against the employee, if the misconduct of the latter falls within the purview of the penal provisions of the law of the land. However such proceedings generally conducted by the State agencies, are time consuming and call for a high degree of proof. In addition to the above option, the employer also has an option to deal with the erring employee within the terms of employment. In such an eventuality, the employee may be awarded any penalty which may vary from the communication of displeasure, to the severance of the employer-employee relationship i.e. dismissal from service. Disciplinary authorities play a vital role in this context. Efficiency of the disciplinary authorities is an essential pre-requisite for the effective functioning of the reward and punishment function, more specifically the latter half of it.
3. There was a time when the employer was virtually free to hire and fire the employees. Over a period of time, this common law notion has gone. Today an employer can inflict punishment on an employee only after following some statutory provisions depending upon the nature of the organisation. Briefly, the various statutory provisions which govern the actions of different types of organisation are as under:
(a) Government: Part XIV of the Constitution relates to the terms of employment in respect of persons appointed in connection with the affairs of the State. Any action against the employees of the Union Government and the State Governments should conform to these Constitutional provisions, which confer certain protections on the
Government servants. These provisions are applicable only to the employees of the various Ministries, Departments and Attached and Subordinate Offices. Further, the employees, being citizens of the country also enjoy Fundamental Rights guaranteed under Part III of the Constitution and can enforce them though the Writ jurisdiction of the Courts. In addition to the constitutional provisions, there are certain rules which are applicable to the conduct of the proceedings for taking action against the erring employees. Central Civil Services (Classification, Control, and Appeal) Rules 1965 cover a vast majority of the Central Government employees. Besides, there are also several other Rules which are applicable to various sections of the employees in a number of services.
(b) Semi Governmental Organisations: By this, we mean the Public Sector Undertakings and Autonomous Bodies and Societies controlled by the Government. Provisions of Part XIV of the Constitution do not apply to the employees of these Organisations. However, as these organisations can be brought within the definition of the term ‘State’ as contained in Article 12 of the Constitution, the employees of these organisations are protected against the violation of their Fundamental Rights by the orders of their employer. The action of the employer can be challenged by the employees of these organisations on the grounds of arbitrariness, etc. These organisations also have their own sets of rules for processing the cases for conducting the disciplinary proceedings against their employees.
(c) Purely private organisations: These are governed by the various industrial and labour laws of the country and the approved standing orders applicable for the establishment.
4. Although the CCS (CCA) Rules 1965 apply only to a limited number of employees in the Government, essentially these are the codification of the Principles of Natural Justice, which are required to be followed in any quasi judicial proceedings. Even the Constitutional protections which are contained in Part XIV of the Constitution are the codification of the above Principles. Hence, the procedures which are followed in most of the Government and semi-governmental organisations are more or less similar. This handout is predominantly based on the CCS (CCA) Rules 1965.
5. Complexity of the statutory provisions, significance of the stakes involved, high proportion and frequency of the affected employees seeking judicial intervention, high percentage of the cases being subjected to judicial scrutiny, huge volume of case law on the subject – are some of the features of this subject. These, among others have sparked the need for a ready reference material on the subject. Hence this handbook.
CHAPTER – 2
ROLE OF DISCIPLILNARY AUTHORITIES
1. Who is Disciplinary Authority?
The term Disciplinary Authorities refers to such authorities who have been entrusted with powers to impose any penalty on the employees. In respect of the organizations falling under the purview of CCS (CCA) Rules 1965, the term Disciplinary Authority is defined in Rule 2 (g) of the CCA Rules as the authority competent to impose on a government servant any of the penalties specified in Rule 11. In this Handbook, CCS (CCA) Rules 1965 is henceforth referred to as “the Rules”
Disciplinary authority is defined with reference to the post held by the employee. Various Disciplinary authorities are specified in Rule 12 of the Rules. Thus there may be more than one disciplinary authority in every organization.
2. What are the kinds of Disciplinary Authorities?
Normally, there are two categories of Disciplinary Authorities viz. those who can impose all penalties on the employees and the authorities who can impose only minor penalties.
3. What are the powers and responsibilities of the Disciplinary Authorities?
Although it is not explicitly stated anywhere, main responsibility of the Disciplinary Authority is to ensure discipline in the organization. Towards this, the disciplinary authorities are required to identify acts of indiscipline and take appropriate remedial action such as counseling, cautioning, admonition, imposition of penalties, criminal prosecution, etc.
4. What is the relationship between Appointing Authority and Disciplinary Authority?
Appointing Authorities are empowered to impose major penalties. It may be recalled that Article 311 clause (1) provides that no one can be dismissed or removed from service by an authority subordinate to the Authority which appointed him. In fact under most of the situations, the powers for imposing major penalties are generally entrusted to the Appointing Authorities. Thus Appointing Authorities happen to be disciplinary authorities. However there may be other authorities who may be empowered only to impose minor penalties. Such authorities are often referred to as lower disciplinary authorities for the sake of convenience.
In this handbook, the term Disciplinary Authority has been used to signify any authority who has been empowered to impose penalty. Thereby the term includes appointing authorities also.
5. How to decide the Appointing Authority, when a person acquires several appointments in the course of his/her career?
CCA Rule 2(a) lays down the procedure for determining the Appointing Authority in respect of a person by considering four authorities. Besides, it must also be borne in mind that Appointing Authority goes by factum and not by rule. i.e. where an employee has been actually appointed by an authority higher than the one empowered to make such appointment as per the rules, the former shall be taken as the Appointing Authority in respect of such employee.
6. What should be the over-all approach of the Disciplinary Authority?
Disciplinary authorities are expected to act like a Hot Stove, which has the following characteristics:
Advance warning – One may feel the radiated heat while approaching the Hot stove. Similarly, the Disciplinary Authority should also keep the employees informed of the expected behavior and the consequences of deviant behavior.
Consistency: Hot stove always, without exception, burns those who touch it. Similarly, the disciplinary authority should also be consistent in approach. Taking a casual and lenient view during one point of time and having rigid and strict spell later is not fair for a Disciplinary Authority
Impersonal: Hot stove treats all alike. It does not show any favouritism or spare anybody. Similarly, the disciplinary authority should treat all employees alike without any discrimination. [You may feel that past good conduct of the delinquent employee is taken into account while deciding the quantum of penalty. This is not in contravention of the rule of impersonal approach. Even past conduct has to be taken into account in respect of all the employees, without discrimination.]
Immediate action: Just as the hot stove burns the fingers of those who touch it without any time lag, the disciplinary authority is also expected to impose penalty without delay. This will make the delinquent employee link the misconduct to the penalty; besides it also sends a message that misconduct will be appropriately dealt with.
[The rule is attributed to Douglas McGregor who is better known for his ‘X’ and ‘Y’ theories of Management]
7. How to find out who is the Disciplinary Authority?
Firstly, it must be remembered that the Disciplinary authority is determined with reference to the employee proceeded against. Schedule to the Rules 1965 lay down the details of the disciplinary authorities in respect of various grade of employees in different services in the Government. The President, the Appointing Authority, the Authority specified in the Schedule ot the Rules (to the extent specified therein) or by any other authority empowered in this behalf by any general or special order of the President may impose any fo the Penalties specified in Rule 11.
Appointing Authority as mentioned in the Schedule must be understood with reference to rule2 (a) of the Rules. The question as to who is the appropriate disciplinary authority must be raised and answered not only while issuing charge sheet but also at the time of imposing penalty because there might have been some change in the situation due to delegation of powers, etc. in the organization.
8. What are the functions of the Disciplinary Authority?
Disciplinary authority is required to discharge the following functions: (a) Examination of the complaints received against the employees (b) Deciding as to who is to be appointed as the investigating authority
(c) Taking a view as to whether there is any need to keep the delinquent employee under suspension
(d) Taking a view on the preliminary investigation report and deciding about the future course of action thereon, such as warning, training, counseling, initiation of major or minor penalty proceeding, prosecution, discharge simpliciter, etc.
(e) Consultation with the Central Vigilance Commission (CVC) where necessary
(f) Deciding whether there is any need to issue of charge sheet or penalty may be imposed dispensing with inquiry under the appropriate provision
(g) Issue of charge sheet where necessary – Rule 14(3)
(h) In the case of minor penalty proceedings, deciding, either suo motu or based on the request of the delinquent employee, as to whether it is necessary to conduct a detailed oral hearing.
(i) In the case of minor penalty proceedings, forming tentative opinion about the quantum of penalty based on the representation of the delinquent employee, if any, and ordering for a detailed oral hearing where necessary.
(j) After issue of charge sheet, deciding as to whether there is any need to conduct inquiry, or the matter may be closed, or the penalty can be imposed, based on the unambiguous, unconditional and unqualified admission by the delinquent employee.
(k) Passing final order imposing penalty or closing the case, based on the response of the delinquent employee
(l) Appointment of Inquiry Authority and Presenting Officer, where necessary
(m)Taking a view on the request, if any, of the delinquent employee for engagement of a Legal Practioner as Defence Assistant
(n) Making originals of all the listed documents available to the Presenting Officer so that the same could be presented during the inspection of documents.
(o) Examination of the inquiry report to decide as to whether the same needs to be remitted back to the inquiry authority – Rule 15(1)
(p) Deciding as to whether the conclusion arrived at by the Inquiring Authority is acceptable and to record reasons for disagreement if any – Rule 15(2)
(q) Consultation with CVC or UPSC where necessary
(r) Forward the inquiry report to the delinquent employee together with the reasons for disagreement, if any and the recommendations of the CVC where applicable – Rule 15(2)
(s) Considering the response of the delinquent employee to the inquiry report and the reasons for disagreement and taking a view on the quantum of penalty or closure of the case. Rule 15(2)A
(t) Pass final order in the matter – Rule 15(3)
(u) On receipt of copy of the appeal from the penalized employee, prepare comments on the Appeal and forward the same to the Appellate Authority together with relevant records. – Rule 26(3)
9. What happens if any of the functions of the Disciplinary Authority has been performed by an authority subordinate to the disciplinary authority?
Where a statutory function has been performed by an authority who has not been empowered to perfrom it, such action without jurisdiction would be rendered null and void. The Hon’ble Supreme Court in its Judgment dated 5th September 2013, in Civil Appeal No. 7761 of 2013 (Union of India & Ors. Vsd. B V Gopinathan) has held that the statutory power under Rule 14(3) of the CCA rule has necessarily to be performed by the Disciplinary Authority. as under:
“49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law.”
10. What knowledge is required for the efficient discharge of the duties in conducting disciplinary proceedings?
Disciplinary Authority is required to be conversant with the following:
Constitutional provisions under Part III (Fundamental Rights) and Part XIV (Services Under the Union and the States)
Principles of Natural Justice
CCS(CCA) Rules 1965 or the relevant rules applicable to the organization Government of India Instructions relating to disciplinary proceedings Vigilance Manual
Instructions of CVC and UPSC relating to disciplinary proceedings Case law relating to disciplinary proceedings
Endeavour in this handbook is to impart the above knowledge
CHAPTER – 3
1. Part XIV of the Constitution relates to ‘Services Under the Union and the States’, wherein, Articles 309, 310 and 311 are relevant to disciplinary proceedings. Article 309 is an enabling provision which gives power to the legislature to enact laws governing the conditions of service of the persons appointed in connection with the affairs of the state. Proviso to this Article provides that pending the enactment of the laws, the President may frame rules for the above purpose. The laws as well as the Rules to be framed for the purpose must be ‘subject to the provisions of the constitution’. CCS (CCA) Rules 1965 as well as several other service rules have been framed under the proviso to Article 309 of the Constitution.
2. Article 310 of the Constitution contains what is known as the Pleasure Doctrine. It provides that the term of appointment of the union Government Servants shall depend upon the pleasure of the President. In fact the provision applies to all members of defence services, members of Civil Services, members of All India Services, holders of Civil Posts and holders of defence posts. The same Article also provides that the pleasure of the President can be over ridden only by the express provisions of the Constitution and nothing else. Thus, in case there is any express provision relating to the tenure of appointment of a Government Servant, the same will prevail; otherwise, the tenure of appointment will depend upon the pleasure of the President.
3. Restriction on the Pleasure Doctrine is provided in a number of provisions of the Constitution in respect of high level functionaries. Some of the examples are Article124 [Tenure of Supreme Court judges], Article 148(2) [Tenure of High Court judges] Article 324 [The Chief Election Commissioner, Article 317 [Chairman and members of public service commission] who are holders of civil posts.
4. In respect of the multitude of ordinary Government Servants, a restriction on the Pleasure of the President is contained in the immediately following Article viz. Article 311. The first thing to be noted about Article 311 is that it does not apply to the defence personnel. The Supreme Court has clarified that even the civilians working in connection with the defence are not covered by the provisions of Article 311. It is also significant that even the rules framed under proviso to Article 309 cannot provide the protection under Article 311, to those employees who are not entitled to the protection under the said Article. In this connection, the following observations by the Hon’ble Supreme Court in Union of India and another Vs. K.S. Subramanian [JT1988(4)SC681, 1989 Supp(1)SCC331] is relevant
11. It was, however, argued for the respondent that 1965 Rules are applicable to the respondent, first, on the ground that Rule 3(1) thereof itself provides that it would be applicable, and second, that the Rules were framed by the President to control his own pleasure doctrine, and therefore, cannot be excluded. This contention, in our opinion, is basically faulty. The 1965 Rules
among others, provide procedure for imposing the three major penalties that are set out under Article 311(2). When Article 311(2) itself stands excluded and the protection thereunder is withdrawn there is little that one could do under the 1965 Rules in favour of the respondent. The said Rules cannot independently play any part since the rule making power under Article 309 is subject to Article 311. This would be the legal and logical conclusion
5. The ruling in the above extract should not be misconstrued to mean that any penalty imposed on a defence civilian by following the procedure prescribed in CCA Rules is liable to be set aside for the simple reason that the above rules do not apply to defence Civilians. Unless a different rule is applicable for a defence civilian and unless the aggrieved person establishes that application of CCA Rules has caused prejudice to him, the application of the CCA Rules cannot be a ground for invalidating the penalty imposed. Hon’ble Supreme Court in the case of Director General of Ordnance Services and others Vs. P.N. Malhotra 1995 AIR 1109, 1995 SCC Supl. (3) 226 reversed the decision of the Hon’ble Tribunal and held that –
“10. The learned counsel for the appellants submits that the respondent cannot be said to have suffered any prejudice by following the procedure prescribed by 1965 Rules. He submits that the said Rules are nothing but a codification of the principles of natural justice. Indeed, it is submitted, they are more specific, more elaborate and more beneficial to the employee than the broad principles of natural justice. If we assume for the sake of argument that the respondent was entitled to insist upon an enquiry before he could be dismissed, we must agree with the submission of the learned counsel for the appellants. ….”
6. Article 311 basically grants two protections to the civilian government servants (other than the defence civilians, of course). The two protections relate to who and how. The first part of the Article provides that no person shall be dismissed or removed from service by an authority subordinate to the one by which he was appointed. Thus, the protection is that, before being sent out of service, a Government servant is entitled to have his case considered by the authority who is equal in rank to the one who appointed him to the service. If the penalty of dismissal or removal from service is imposed by an authority who is lower in rank than the Appointing Authority, the same will be unconstitutional. The following are some of the practical difficulties which may arise in complying with this provision:
(a) The employee concerned may be holding a post different from the one in which he was initially recruited and his promotion to the present grade might been made by an authority other than the one who initially recruited him to service. Who is appointing authority in respect of such an employee?
(b) The power for making appointment to a grade keeps on changing. Twenty years ago, the power of making appointment to a grade was exercised by an officer of a certain level. Consequent to the decentralisation of powers, the power for making appointment to the same grade is presently vested in a lower level officer. Is there any restriction on the exercise of the power of dismissal by the lower level officer?
(c) A post has been abolished consequent to some re-organisation re structuring of certain departments. The post so abolished was the Appointing Authority in respect of a number of levels. Who can exercise the powers of dismissal in such cases?
The answers to these questions are contained in Rule 2(a) of the CCA Rules and other statutory rules which have been framed under the Proviso to Article 309.
7. The second protection granted by Article311 is available in Clause 2 of the Article and it states how a Government Servant can be dismissed, or removed from service or reduced in rank. It provides that no one can be dismissed or removed from service or reduced in rank except after an inquiry. The same article also indicates that the above mentioned inquiry must satisfy the following two conditions:
(a) The individual concerned must be informed of the charges.
(b) Must be granted a reasonable opportunity of being heard in respect of those charges.
8. The phrase reasonable opportunity has not been defined in the Constitution; but the courts have clarified through a number of decisions that this implies that the accused has a right to:
• know the charge,
• know the evidence led by the Disciplinary Authority in support of the charge
• inspection of documents,
• cross examine the witness deposing for the Disciplinary Authority • lead evidence in defence, etc.
9. Another important question relating to the applicability of Article 311 is, whether the article provides protection to permanent employees only or even the temporary employees are entitled for the protection. Although Article 311 does not specifically state as to whether the provisions are applicable to temporary employees also, the Supreme Court has clarified about the applicability of the protection. The law laid down by the Hon’ble Supreme Court in the case of Parshottam Lal Dhingra Vs Union of India [AIR1958 SC 36] more than half a century ago is still applicable. As per the case law on the subject, the protection is available under any one of the under mentioned circumstances:
(a) Where there is a right to hold the post
(b) Where there is visitation of evil consequences
10. All permanent employees have a right to post and hence are entitled for this protection. As regards the temporary employees, even in their case, a reasonable opportunity of defence will have to be afforded if they are being visited by evil
consequences. Thus, if a temporary employee is discharged from service by giving him one month notice, without assigning any reason, the same may be permissible. If the order of discharge mentions any reasons having a bearing on the conduct or the competence of the employees, in such cases an inquiry will be necessary. In short, even probationers will be entitled to the protection of inquiry, if the order of discharge contains a stigma. As pointed out by the Hon’ble Supreme Court in the following passage in the case of Mathew P. Thomas Vs. Kerala State Civil Supply Corpn. Ltd. and Ors. [JT2003(2), (2003)3SCC263], the issue continues to be difficult to determine:
11. An order of termination simplicitor passed during the period of probation has been generating undying debate. The recent two decisions of this Court in Deepti Prakash Banerjee v. MANU/SC/0101/1999: Satyendra Nath Bose National center for Basic Sciences, Calcutta and Ors. 1SCR532 and Pavanendra Narayan Verma v. MANU/SC/0705/2001: Sanjay Gandhi PGI of Medical Sciences and Anr. (2002) ILLJ690SC, after survey of most of the earlier decisions touching the question observed as to when an order of termination can be treated as simplicitor and when it can be treated as punitive and when a stigma is said to be attached to an employee discharged during period of probation. The learned counsel on either side referred to and relied on these decisions either in support of their respective contentions or to distinguish them for the purpose of application of the principles stated therein to the facts of the present case. In the case of Deepti Prakash Banerjee (supra), after referring to various decisions indicated as to when a simple order of termination is to be treated as “founded” on the allegations of misconduct and when complaints could be only as motive for passing such a simple order of termination. In para 21 of the said judgment a distinction is explained, thus:-
“21. If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without a regular departmental enquiry, the simple order of termination is to be treated as “founded” on the allegations and will be bad. But if the enquiry was not held, no findings were arrived at and the employer was not inclined to conduct an enquiry but, at the same time, he did not want to continue the employee against whom there were complaints, it would only be a case of motive and the order would not be bad. Similar is the position if the employer did not want to enquire into the truth of the allegations because of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In such circumstances, the allegations would be a motive and not the foundation and the simple order of termination would be valid.”
12. Article 311 also provides that under certain circumstances, a government servant may be dismissed or removed from service or reduced in rank without an inquiry. These are contained in the second proviso to Article 311 (2). The circumstances under which the protection under Article 311 Clause 2 does not apply are as under:
(a) Where the penalty is being imposed on the ground of conduct which has led to his conviction on a criminal charge; or.
(b) Where the disciplinary authority is satisfied, for reasons to be recorded, that it is not reasonably practicable to hold an inquiry in the case; or
(c) Where the President is satisfied that in the interest of the security of the country it is not expedient to hold the inquiry.
13. It is also relevant to note that the special circumstance when penalty may be imposed on a Government Servant without Inquiry have been reproduced in Rule 19 of the CCS (CCA) Rules 1965.
14. There may be circumstances wherein a Government servant may be proceeded against in a criminal court. The criminal case might have been filed by the employer or the employee might have been tried for an offence he has committed in his private life. The provision mentioned above, grants power to the disciplinary authority to impose penalty without conducting inquiry if the Government servant has been convicted in a criminal case. In this connection, it is relevant to note that the standard of proof required in a criminal case is proof beyond reasonable doubt whereas in the departmental proceedings, the standard of proof is preponderance of probability. Thus if an employee has been held guilty in a criminal case, it would be much more easier to establish the charge in a departmental proceedings. Conducting a departmental inquiry after the employee has been held guilty in a criminal case would, therefore, be an exercise in futility. Hence the power granted by the Second Proviso to Article 311 may be availed and appropriate penalty may be imposed on the employee. It must, however, be noted that this provision only grants a power to the disciplinary authority to impose the penalty without inquiry when the employee has been convicted in a criminal case. It is not mandatory for the disciplinary authority to dismiss the employee whenever he has been convicted in a criminal case. The authority concerned will have to go thorough the judgment and take a decision depending upon the circumstances of the case. While taking recourse to this provision, the disciplinary authority is under an obligation to issue a show cause notice to the Government Servant as required under the proviso to Rule 19 of the CCA Rules. Besides, the quantum of penalty needs to be decided with due regard to the mandate of the Hon’ble Supreme Court that the right to impose penalty carries with it the duty to act justly. In this connection it is worthy to bear in mind the observation of the Hon’ble Supreme Court in its legendary judgment in the case of Shankar Das Vs. Union of India [AIR1985SC772, 1985(1)SCALE391, (1985)2SCC358, 3SCR163, 1985(2)SLJ454(SC)]
6. The learned Magistrate First Class, Delhi, Shri Amba Prakash was gifted with more than ordinary understanding of law. Indeed he set an example worthy of emulation. Out of the total sum of Rs. 1,607.99 which was entrusted to the appellant as a Cash clerk, he deposited Rs. 1,107.99 only in the Central Cash Section of the Delhi Milk Scheme. Undoubtedly, he was guilty of criminal breach of trust and the learned Magistrate had no option but to convict him for that offence. But, it is to be admired that as long back as in 1963, when Section 235 of the CrPC was not on the Statute book and later refinements in the norms of sentencing were not even in embryo, the learned
Magistrate gave close and anxious attention to the sentence which, in the circumstances of the case, could be passed on the appellant. He says in his judgment The appellant was a victim of adverse circumstances; his son died in February 1962, which was followed by another misfortune; his wife fell down from an upper storey and was seriously injured: it was then the turn of his daughter who fell seriously ill and that illness lasted for eight months. The learned Magistrate concluded his judgment thus :
Misfortune dodged the accused for about a year… and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958.
7. It is to be learned that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him in so far as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service on the ground of conduct which has led to his conviction on a criminal charge”. But, that power, like every other power, has to be exercised fairly, justly and reasonably. Surely the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a non-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since Clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant or the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical.
15. Another occasion when the disciplinary authority may impose penalty on the employee without conducting any inquiry is when, the disciplinary authority, is satisfied, for reasons to be recorded, that it is not reasonably practicable to hold an inquiry. There are two conditions for invoking this provision viz. firstly, the disciplinary authority must be satisfied that it is not reasonably practicable to hold inquiry in a particular case and secondly, the authority must record the reasons for his decision. Although the Constitution does not require the communication of the reasons in the penalty order, it has been recommended in the judgments of the Supreme Court that it is desirable to communicate the reasons in the penalty order. This will obviate the prospects of the penalised employee contending that the reasons were fabricated after the issue of penalty order. It has been held in a number of decisions of the Hon’ble Supreme Court that orders imposing penalty under this clause will be invalid unless the reasons for dispensing with inquiry have been recorded.
16. In this connection, the following judgments of the Hon’ble Supreme Court are relevant:
(a) Reena Rani Vs. State of Haryana and Ors. 2012(3)SCALE519
(b) In Jaswant Singh v. State of Punjab [(1991) 1 SCC 362] the two-Judge Bench referred to the ratio of Union of India v. Tulsiram Patel [(1985) 3 SCC 398] and observed:
The decision to dispense with the departmental enquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer.
17. This provision can be of help during large scale violence, threat to the disciplinary authority or inquiry authority or the state witnesses, etc. Invoking this provision for mundane purposes such as avoiding delay, etc. may not be in order. Although the penalty order issued without inquiry may cause harm to the employee, the courts have held that the clause has been provided for the sake of a public good. In order to mitigate the harm done to the employee, the Hon’ble Supreme Court in the case of Union of India Vs Tulsiram Patel [AIR 1985 SC, (1985) 3 SCC 398 ] has ruled that in all such cases departmental appeal must be disposed of after giving him an opportunity of defence.
18. There is considerable divergence of opinion on the subject regarding the applicability of the above provision in cases of inability of the disciplinary authority to serve charge sheet because the whereabouts of the delinquent are not known. It is felt that the provision being contrary to the principles of Natural Justice, it would be appropriate to resort to them sparingly. In cases of prolonged unauthorized absence of the delinquent, it would be appropriate to publish the charge sheet in the local news paper and/or the web site of the organization, paste it in the door of the residence of the delinquent and the notice board of the organization, send through registered post and have proof of all these things before proceeding ex-parte against the delinquent.
19. Thirdly, an employee may be dismissed or removed from service or reduced in rank without inquiry whenever the President is of the opinion that in the interest of the security of the country it is not expedient to hold an Inquiry. In such cases, the decision to dispense with the inquiry is taken at the level of President and that too only on the ground of the security of the country. This provision may be useful in cases of espionage charges, etc. Here, the word President has been used in constitutional sense. The decision does not require personal approval of the President. It would be sufficient if the decision is taken by the Minister in charge.
20. The nature of the extra ordinary power granted by the provisions under the second proviso to Article 311(2) has been explained by the Hon’ble Supreme Court in the following terms in Union of India (UOI) and Anr. Vs. M.M. Sharma [JT2011 (4)SC22, (2011)11SCC293]
24. The power to be exercised under Clauses (a), (b) and (c) being special and extraordinary powers conferred by the Constitution, there was no obligation on the part of the disciplinary authority to communicate the reasons for imposing the penalty of dismissal and not any other penalty. For taking action in due discharge of its responsibility for exercising powers under Clause (a) or (b) or (c) it is nowhere provided that the disciplinary authority must provide the reasons indicating application of mind for awarding punishment of dismissal. While no reason for arriving at the satisfaction of the President or the Governor, as the case may be, to dispense with the enquiry in the interest of the security of the State is required to be disclosed in the order, we cannot hold that, in such a situation, the impugned order passed against the Respondent should mandatorily disclose the reasons for taking action of dismissal of his service and not any other penalty.
21. Although the above mentioned provisions are applicable as such to the employees of the Ministries, departments and attached and subordinate offices only, yet the same are relevant to the employees of Public Sector Undertakings and the autonomous bodies as well. This is so, because similar provisions exist in the service rules relating to a number of PSUs and Autonomous bodies.
22. In addition to Part XIV of the Constitution (Articles 309 to 311), Part III of the Constitution is also relevant to the matter of disciplinary proceedings. Part III of the Constitution contains the Fundamental Rights. These are available against the actions of the State. The State is prohibited from denying the right to equality, etc. As per the current interpretation of Article 14, it strikes at the root of arbitrariness. Hence an employee affected by the arbitrary action of the State (which happens to be his employer) can file a writ petition alleging violation of the Right to equality. Article 21 of the Constitution provides right to life and liberty. It states that no one shall be deprived of his right to life and liberty except in accordance with the procedure established by law. According to the present interpretation of the Hon’ble Supreme Court, the word ‘life’ occurring in Article 21 of the Constitution does not denote mere existence. ‘Life’ as mentioned in Article 21 relates to a dignified and meaningful life. Hence, the deprivation of employment may amount to the deprivation of life. Hence Article 21 indirectly provides that no one can be deprived of his employment except in accordance with the procedure established by law. Besides, the Hon’ble Supreme Court has also stated in the case of Maneka Gandhi Vs Union of India (AIR 1978 SC 578 ) that the phrase ‘procedure established by law mentioned in the above Article refers to a procedure which is just, reasonable and fair and not any procedure which is arbitrary, whimsical or oppressive. Hence, there is a requirement for the Governmental and semi-governmental organisations to ensure that the employees are not deprived of their employment (i.e. life) by an arbitrary procedure. Care must be taken to ensure that a just, reasonable and fair procedure is followed in the disciplinary proceedings.
CHAPTER – 4
PRINCIPLES OF NATURAL JUSTICE
1. Initially, the term Natural Justice referred to certain procedural rights in the English Legal System. Over a period of time, the content of the term has expanded and presently it connotes some basic principles relating to judicial, quasi judicial and administrative decision making. These principles are believed and practiced by all civilized societies for millennia. The view that Natural Justice can be traced back to over thousand years is not an exaggeration. The following observation of Justice V Krishna Iyer in Mohinder Singh Gill Vs. Chief Election Commissioner [1978 AIR 851, (1978) 3 SCC 405, 1978 SCR (3) 272] is adequate proof of this statement:
It has many colours and shades, many forms and shapes and, save where valid law excludes, it applies when people are affected by acts of Authority. It is the bone of healthy government, recognised from earliest times and not a mystic testament of judge-made law. Indeed, from the legendary days of Adam-and of Kautilya’s Arthasastra-the rule of law has had this stamp of natural justice which makes it social justice. We need not go into these deeps for the present except to indicate that the, roots of natural justice and its foliage are noble and not newfangled. Today its application must be sustained by current legislation, case- law or other extant principle, not the hoary chords of legend and history. Our jurisprudence has sanctioned its prevalence even like the Anglo-American system. The dichotomy between administrative and quasi-judicial functions vis a vis the doctrine of natural justice is presumably obsolescent after Kraipak(1) in India and Schmit(2) in England.
2. Traditionally English Law recognized two principles of natural justice viz. (i) Nemo debet esse judex in propria causa i.e No man shall be a judge in his own cause, or a suitor or the deciding authority must be impartial and without bias and (ii) Audi alteram Partem i.e. hear the other side, or no one can be condemned unheard. Over a period of time, a third principle has also emerged to the effect that Final orders must be speaking orders (Reasoned orders). The first and the third principles mentioned above may be perceived as the corollary of the basic principle that Justice should not only be done but manifestly appear to have been done
The Principles and general conditions
3. Based on the above, the following four may be stated as the Principles of Natural Justice:
(a) No one can be condemned unheard
(b) No one can be a judge in his own case
(c) Justice should not only be done but should manifestly appear to have been done
(d) Final order must be speaking order
4. The nature, aim and scope of these principles, the extent of their applicability, etc. have been eloquently articulated by Justice K S Hegde in the case of A K Kraipak Vs Union of India[(1969) 2 SCC 262]
(1) The rules of natural justice operate in areas not covered by any law validly made, that is, they do not supplant the law of the land but supplement it. They are not embodied rules and their aim is to secure justice or to prevent miscarriage of justice. If that is their purpose, there is no reason why they should not be made applicable to administrative proceeding also, ….
(2) The concept of natural justice has undergone a great deal of change in recent years. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or the body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened, the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case. The rule that enquiries must be held in good faith and without bias, and not arbitrarily or unreasonably, is now included among the principles of natural justice.
Audi Alteram Partem
5. Observations of the Hon’ble Supreme Court in the following terms in the case of Maneka Gandhi Vs. Union of India, [1978 AIR 597, 1978 SCR (2) 621] establishes that the right to be heard is an inherent one and can be claimed even when not granted by statutory provisions:
It is well established that even where there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the rights of that individual, the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. This principle was laid down by this Court in the State of Orissa v. Dr. (Miss) Binapani Dei & Ors.[ (1) AIR 1967 S.C. 1269 at 1271] in the following words
“The rule that a party to whose prejudice an order is intended to be passed is entitled to a hearing applies alike to judicial tribunals and bodies of persons invested with authority to adjudicate upon matters involving civil consequences. It is one of the fundamental rules of our constitutional set-up that every citizen is protected against exercise of arbitrary authority by the State or its officers. Duty to act judicially would, therefore arise from the very nature of the function intended to be performed, it need not be shown to be super- ,added. If there is power to decide and determine to the prejudice of a person, duty to act judicially is implicit in the exercise of such power. If the essentials of justice be ignored and an order to the prejudice of a Person is made, the order is a nullity. That is a basic concept of the rule of law and
importance thereof transcends the significance of a decision in any particular case.”
6. Audi Alteram Patem which is basically a protection against arbitrary administrative action comprises within itself a number of rights. This rule implies that the accused has a right to
(a) know the charge
(b) inspect documents
(c) know the evidence
(d) cross examine witnesses
(e) lead evidence
7. In essence, the protections granted under Article 311 (2) of the Constitution as well the CCA Rules are codification of the above principle of natural justice.
8. As seen above, the principles of natural justice supplement law and not supplant law. Thus they can be exempt by express statutory provisions or by necessary implications. One instance of exemption by statutory provisions is exemption prescribed by the second proviso to Article 311 (2) which explicitly states that “this clause shall not apply”.
9. In Maneka Gandhi Vs. Union of India, [1978 AIR 597, 1978 SCR (2) 621] the contention of the petitioner was that her Passport was impounded without giving her an opportunity of defence. Apparently, providing an opportunity of defence before impounding the Passport might defeat the very purpose of the action, because the moment the authorities initiate action for impounding the Passport, it would be possible for the person concerned to flee abroad on the strength of the Passport, which is yet to be impounded. There may be extra-ordinary situations when Post
decisional hearing might be provided instead of Pre-decisional hearing.
10. The components of the right to hearing as enumerated above are general in nature. They should not be perceived as inviolable essential ingredients of all administrative actions, In the case of Hira Nath Mishra and Ors Vs. Principal Rajendra Medical College, AIR 1973 SC 1260, (1973) IILLJ 111 SC, (1973) 1 SCC 805, three students had challenged the order of the Principal expelling them from the college for two academic sessions allegedly on charges of molestation of girl students. One of the submissions of the petitioners was that “… the enquiry, if any, had been held behind their back; the witnesses who gave evidence against them were not examined in their presence, there was no opportunity to cross-examine the witnesses with a view to test their veracity…”. Repelling the submissions of the Appellants, the Hon’ble Supreme Court held as under:
“11. Rules of natural justice cannot remain the same applying to all conditions. We know of statutes in India like the Goonda Acts which permit evidence being collected behind the back of the goonda and the goonda being merely asked to represent against the main charges arising out of the evidence collected. Care is taken to see that the witnesses who gave statements would not be identified. In such cases there is no question of the witnesses being called and the goonda being given an opportunity to cross-
examine the witnesses. The reason is obvious. No witness will come forward to give evidence in the presence of the goonda. However unsavoury the procedure may appear to a. judicial mind, these are facts of life which are to be faced. The girls who were molested that night would not have come forward to give evidence in any regular enquiry and if a strict enquiry like the one conducted in a court of law were to be imposed in such matters, the girls would have had to go under the constant fear of molestation by the male students who were capable of such indecencies. Under the circumstances the course followed by the Principal was a wise one. The Committee whose integrity could not be impeached, collected and sifted the evidence given by the girls. Thereafter the students definitely named by the girls were informed about the complaint against them and the charge. They were given an opportunity to state their case. We do not think that the facts and circumstances of this case require anything more to be done.
12. There is no substance in the appeal which must he dismissed. The appeal is dismissed. There shall be no orders as to costs.”
Rule of Bias
11. The principle that No one can be a judge in his own case is also known as the rule of bias. In essence, it implies that an interested party shall not play a role in decision making. General rule that Inquiry Officer should not be a witness in the proceedings is a corollary of this rule. In this connection, it is interesting to note the following observation of Justice Das in State of Uttar Pradesh Vs. Mohammad Nooh [1958 AIR 86, 1958 SCR 595]
“…the spectacle of a judge hopping on and off the bench to act first as judge, then as witness, then as judge again to determine whether he should believe himself in preference to another witness, is startling to say the least.”
12. Generally three kinds of bias are considered as important:
a) Personal Bias – One may be personally interested in the outcome of the case. If one is required to act as the complainant as well as the decision making authority, the outcome is likely to be biased
b) Pecuniary bias – A person who has a monetary interest in an issue should not deal with the case. If one is a share holder in a company, it would be improper for him/her to decide whether a contract should be given to that company or some other company.
c) Bias of subject matter – One who has certain strong notions/ views about certain subjects might not be suitable for deciding issues relating to that subject. For example one having strong male chauvinistic views, may not be suitable for dealing with issues relating to harassment of women employee
13. Rule of bias must be borne in mind at the time of appointment of Inquiry Officer and dealing with the request of the Charged Officer for change of Inquiry officer.
14. It is well established that the rule of bias has the following exemptions: Waiver
15. Where the party concerned has waived its right to question the proceedings for violation of the rule of bias, the issue cannot be raised subsequently. Similarly there may be situation when a person may not be able to withdraw from the decision making process due to reasons of necessity. In the case of Ashok Kumar Yadav and Ors. etc. etc. Vs. State of Haryana and Ors. etc. etc. (Date of Judgment 10/05/1985) [1987 AIR 454, 1985 SCR Supl. (1) 657, 1985 SCC (4) 417 1985 SCALE (1)1290], the petitioners before the High Court had challenged the selection made by the State Public Service Commission on, inter alia, the following ground:
“The argument of the petitioners was that the presence of Shri R.C. Marya and Shri Raghubar Dayal Gaur on the interviewing committee gave rise to an impression that there was reasonable likelihood of bias in favour of the three candidates related to Shri R.C. Marya and Shri Raghubar Dayal Gaur and this had the effect of vitiating the entire selection process. This argument was sought to be supported by the petitioners by relying on the decisions reported in D.K. Khanna v. Union of India & Ors. Surinder Nath Goel v. State of Punjab and M. Ariffudin v. D.D. Chitaley & Ors.”
16. The above submission based on allegation of bias, was rejected by the Hon’ble Supreme Court on the ground of necessity in the following terms:
“The principle which requires that a member of a selection Committee whose close relative is appearing for selection should decline to become a member of the selection committee or withdraw from it leaving it to the appointing authority to nominate another person in his place, need not be applied in case of a Constitutional Authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission was to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, it must be made clear that when a close relative of a member of a Public Service Commission is appearing for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.”
17. Notwithstanding the above exemptions, it is essential that no person having any stake in the outcome of the disciplinary proceedings act as the Inquiry Authority nor exercise the powers of Disciplinary Authority.
Justice should manifestly appear to have been done
18. This was explained by the Hon’ble Supreme Court in Ashok Kumar Yadav and Ors. etc. etc. Vs. State of Haryana and Ors. etc. etc. (Date of Judgment 10/05/1985) [1987 AIR 454, 1985 SCR Supl. (1) 657, 1985 SCC (4) 417 1985 SCALE (1)1290], in the following terms.
“The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this rule is that justice must not only be done but must also appear to be done and this rule has received wide recognition in several decisions of this Court. It is also important to note that this rule is not confined to cases where judicial power stricto sensu is exercised. It is appropriately extended to all cases where an independent mind has to be applied to arrive at a fair and just decision between the rival claims of parties. Justice is not the function of the courts alone; it is also the duty of all those who are expected to decide fairly between contending parties. The strict standards applied to authorities exercising judicial power are being increasingly applied to administrative bodies, for it is vital to the maintenance of the rule of law in a welfare state where the jurisdiction of administrative bodies is increasing at a rapid pace that the instrumentalities of the State should discharge their functions in a fair and just manner.”
19. As already stated above, the Hon’ble Supreme Court had in the above case decided the submissions relating to allegation of bias on the ground of necessity.
20. The advantages of a speaking order were summarized by the Hon’ble Supreme Court as under in the case of Travancore Rayons Vs Union of India [AIR 1971 SC 862] in the following manner:
Disclosure guarantees consideration
Excludes or minimises arbitrariness
Satisfaction of the party
Enables appellate forum to exercise control
21. This principle of natural justice requires that following orders issued in the course of disciplinary proceedings, must be speaking orders:
Orders disposing of the allegations of bias on the part of Inquiry Authority and requesting for change
Orders dealing with the request for appointment of a Legal Practioner as a Defence Assistant
Orders dealing with the request for appointment of a person from outstation as a Defence Assistant
Orders rejecting the request for defence documents/witnesses Orders deciding on request for adjournment
Final orders imposing penalty
Orders of the Appellate, Revisionary or Reviewing authority
22. Components of speaking order and general considerations to be borne in mind while drafting a speaking order are dealt with in the chapter on Drafting of final orders.
Condition precedent and limitations
23. There was a time when the courts held that mere violation of principles of Natural Justice was adequate reason for setting aside the entire proceedings. However, the above approach is no more in vogue. One of the questions before the Hon’ble Supreme Court in Managing Director ECIL Vs. Karunakar [AIR 1994 SC 1074, JT 1993 (6) SC 1, (1994) ILLJ 162 SC] was “what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases.” Hon’ble Supreme Court addressed this question through the doctrine of prejudice in the following terms:
“Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.”
24. It may be appreciated from the foregoing that although the principles of natural justice are very important in nature, there is no uniform rule regarding their applicability. This has been stated with ample clarity in the following paragraph in the case Oriental Bank of Commerce and Anr. Vs. R.K. Uppal (Decided On: 11.08.2011) [JT2011(9)SC1, 2011 (3), (2011)8SCC695 ] in the following terms:
“18. It is now fairly well settled that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with and so forth. In the words of Ramaswami, J. (Union of India and Anr. v. P.K. Roy and Ors. MANU/SC/0049/1967 : AIR 1968 SC 850) the extent and application of the doctrine of natural justice cannot be imprisoned within the straitjacket of a rigid formula. The application of the doctrine depends upon the nature of jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”
25. Briefly, all these above mentioned rules can be condensed into a dictum of two words: “Be fair”. In this regard, one is reminded of the most important advice given by a father to his son in the passage popularly known as Polonius advice to Laertes in the immortal play of Hamlet by William Shakespeare:
This above all: to thine own self be true, This above all: to thine own self be true, And it must follow, as the night the day, And it must follow, as the night the day, Thou canst not then be false to any man. Thou canst not then be false to any man. William Shakespeare William Shakespeare.
26. That is the essence of the Principles of Natural Justice:
Be true to yourself
CHAPTER – 5
SCOPE AND EXTENT OF APPLICABILITY OF CCA RULES
1. What are the circumstances under which the provisions of CCA Rules are to be invoked?
The following are the essential conditions for the application of the CCA Rules:
(a) Firstly the employee concerned must be amenable to the jurisdiction of the CCA Rules in terms of Rule 3 thereof.
(b) Secondly CCA rules can be applied only for the purpose for which the same have been prescribed
2. What is the category of employees who are within the jurisdiction of the CCA Rules?
Applicability of CCA Rules is clarified in Rule 3 of the CCA Rules. [This is not being re-produced for the sake of brevity]
Several autonomous bodies have adopted the rules applicable to the Government Servants and this includes the CCA Rules as well. Some organizations have their own rules for conducting disciplinary proceedings.
Further, the provisions relating to borrowed and lent officers as contained in Rule 21 of the CCA Rules are relevant in the case of such officers.
In addition to the provisions of Rule 3 of CCA Rules, the Hon’ble Supreme Court in its judgment in Union of India Vs. K S Subramanian has held that the Defence Civilians are not entitled for the protections under Article 311of the Constitution of India and consequently the CCA Rules 1965 also do not have application to the Defence Civilians.
However, subsequently, the Apex Court in Director General of Ordnance Services Vs. P N Malhotra, 1995 Supp (3) SCC 226 upheld the dismissal of a defence civilian by following the procedure laid down in CCA Rules 1965. The position was clarified as under:
10. The learned counsel for the appellants submits that the respondent cannot be said to have suffered any prejudice by following the procedure prescribed by 1965 Rules. He submits that the said Rules are nothing but a codification of the principles of natural justice. Indeed, it is submitted, they are more specific, more elaborate and more beneficial to the employee than the broad principles of natural justice. If we assume for the sake of argument that the respondent was entitled to insist upon an enquiry before he could be dismissed, we must agree with the submission of the learned counsel for the appellants. ……
11. We must also mention that neither the Tribunal has stated – nor the respondent has suggested – that there are any other Rules applicable to disciplinary enquiries against such civilian employees which have not been followed – much less has it been stated that any such Rules are qualitatively different or more beneficial to the respondent.
12. The order under appeal shows, that though several grounds were raised in the original application filed by the respondent, the only point urged by his counsel at the time of arguments before the Tribunal was the one relating to inapplicability of the 1965 Rules. No other contention appears to have been urged.
13. In the circumstances, the appeal is allowed and the order of the Tribunal is set aside. The order dismissing the respondent as confirmed by the appellate order is restored. No costs.
From the above, it may be inferred that there can be no objection to the application of the inquiry procedure laid down in CCA Rules in such cases where no specific procedure under any statutory provision has been laid down. Further it must be ensured that no prejudice is caused to the individual by the application of CCA Rules.
It must be understood that the inquiry procedure laid down in the CCA Rules is only a codification of the Principles of Natural Justice which seek to protect the interest of the delinquent.
3. What are the purposes for which the provisions of CCA Rules are to be invoked?
There appears to be a misconception that the CCA Rules provide only the mechanism for imposition of penalties. It needs to be appreciated that the rules lays down the Classification of posts in Part II which contains Rules 4 to 7. Besides, the provisions relating to Appeals in Part VII comprising Rules 22 to 28 is also of a general nature because the rules provide for appeals in respect of orders relating to administrative matter. The list of orders against which appeal lies contained in Rule 23 makes this point clear.
Notwithstanding the above stated special circumstances, CCA Rules basically form part of the reward and punishment sub-system under Personnel Management system of organisation. It provides a mechanism for dealing with erring employees whose behavior does not conform to the prescribed organizational norms – either by express provision or by necessary implications. The rules cover the following aspects:
(a) What penalties can be imposed on an erring employee? (Rule 11) (b) Who imposes these penalties? (Rule 12 and 13 )
(c) What is the procedure to be followed for imposing these penalties? (Rule 14, 15, 16, 18, 19, etc.)
(d) What remedies are available to the employee after a penalty has been imposed? (Rule 22 to 29A)
(e) Issues which are incidental to the above? (Rule 10 [i.e suspension which is a step in aid for conducting inquiry], 31 to 35, etc.)
4. Is it mandatory to invoke the procedure laid down in the CCA Rules whenever a punitive move is taken against the employee?
In so far as the punitive moves are concerned procedures laid down in the CCA Rules are applicable only for imposing the penalties prescribed in the above rules. There may be several instances in the career of an employee which may have a punitive impact on the employee concerned but are not penalty within the meaning of the CCA Rules. An illustrative list of such adverse instances in the career of the employee is available under the Explanation under Rule 11 of the CCA Rules. The same is not re-produced for the sake of brevity.
Some distinguishing features between a penalty and other adverse instances in the career of an employee are as under:
(a) A penalty is that which is imposed for a good and sufficient reason as prescribed in Rule 11; on the other hand the adverse instances illustrated under the Explanation under Rule 11 are the natural consequences of certain deficiencies of the employee or the enforcement of contractual or statutory provisions.
(b) Imposition of penalty basically carries with it a stigma. On the other hand, if an employee is reverted to the lower post for want of vacancy, it involves no stigma.
(c) Imposition of a penalty implies a misconduct on the part of the employee i.e. an omission or commission on the part of employee which has a bearing on his/her competence, conduct and character. On the other hand, other adverse instances may indicate the imbalance between the job requirement and the employee capability.
(d) A penalty can be imposed after following the procedure prescribed in the Rules – even if the inquiry is dispensed with under Rule 19 of the CCA Rules, there is a procedure prescribed for it in the Rules. On the other hand, adverse instances of career can be meted out after following the procedure laid down under various service rules – say DPC Procedure, or procedure for review under Fundamental Rules 56(J), etc.
5. What procedure is to be followed for terminating the services of a probationer?
Services of a probationer or temporary employee can be terminated by invoking the terms of appointment or the Temporary Services Rules – if it is applicable to that case. This is known as discharge simpliciter. Normally the rules would provide for a notice period or salary in lieu of notice period. This must be complied with.
6. What precautions are to be taken while visiting the employee with adverse career impact by invoking the terms of contract or statutory provisions?
Two precautions must be ensured under the above circumstance
(a) The provisions of the contract or the statutory provisions must be adhered to – say the length of the notice period, the conditions and procedure prescribed in the statutory provisions such as FR 56 (J), etc.
(b) The order of discharge must not cast any stigma on the employee concerned. For example, the order discharging a probationer should not mention any deficiency on the part of the employee. The discharging authority has no power to cast any aspersion on the competence or character of the employee without providing any opportunity to clarify his/her position.
7. If an employee has become permanent, is it mandatory to follow the procedure prescribed under CCA Rules for sending him/her out of service?
Not necessarily. Even a permanent employee can be sent out of service without following the provisions of CCA Rules under the following circumstances:
(a) As stated above, a permanent employee can be sent out of service under the provisions of FR 56 (J)
(b) An employee whose employment has been obtained by fraud or mis representation, can be sent out of service without any inquiry
(c) An employee found guilty of sexual harassment of women in the working place may be dismissed from service without recourse to separate proceedings under Rule 14 of CCA Rules because under the proviso to Rule 14(2), the Complaints Committee constituted under Rule 3-C of the CCS (Conduct) Rules 1964 shall be deemed to be the Inquiring Authority and the Committee shall conduct the inquiry as far as possible, in accordance with Rule14 of CCA Rules unless separate procedure has been prescribed for the Committee
8. What is the justification, in the absence of any statutory provision, for dismissing a permanent employee without inquiry/reasonable opportunity of defence?
The Apex Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. DATE OF JUDGMENT: 07/01/2004 [2004 AIR 1469, 2004(1 )SCR360 , 2004(2 )SCC105 , 2004(1 )SCALE285 , 2004(1 )JT88 ] was concerned with the termination of service of an IPS officer with 27 years of service on grounds of submitting, at the time of recruitment to the Kerala State Police Service, a false certificate claiming to belong to Scheduled Caste. Observing that the Appellant was provided a reasonable opportunity at the time of scrutiny of the validity of the caste certificate the Hon’ble Supreme Court went on to clarify the applicability of Article 311 of the Constitution of India in the following terms:
This apart, the appellant obtained the appointment in the service on the basis that he belonged to a Scheduled Caste community. When it was found by the Scrutiny Committee that he did not belong to the Scheduled Caste community, then the very basis of his appointment was taken away. His appointment was no appointment in the eyes of law. He cannot claim a right to the post as he had usurped the post meant for a reserved candidate by playing a fraud and producing a false caste certificate. Unless the appellant can lay a claim to the post on the basis of his appointment he cannot claim the constitutional guarantee given under the Article 311 of the Constitution. As he had obtained the appointment on the basis of a false caste certificate he cannot be considered to be a person who holds a post within the meaning of Article 311 of the Constitution of India. Finding recorded by the Scrutiny Committee that the appellant got the appointment on the basis of false caste certificate has become final. The position, therefore, is that the appellant has usurped the post which should have gone to a member of the Scheduled Caste. In view of the finding recorded by the Scrutiny Committee and upheld upto this Court he has disqualified himself to hold the post. Appointment was void from its inception. It cannot be said that the said void appointment would enable the appellant to claim that he was holding a civil post within the meaning of Article 311 of the Constitution of India. As appellant had obtained the appointment by playing a fraud he cannot be allowed to take advantage of his own fraud in entering the service and claim that he was holder of the post entitled to be dealt with in terms of Article 311 of the Constitution of India or the Rules framed thereunder. Where an appointment in a service has been acquired by practising fraud or deceit such an appointment is no appointment in law, in service and in such a situation Article 311 of the Constitution is not attracted at all.
Later in the same order, the Apex court, in the following para, expressed its approval for the view of the Patna High Court that one who has secured appointment by fraud is not entitled for any benefit, let alone reasonable opportunity of defence at the time of dismissal from service:
The point was again examined by a Full Bench of the Patna High Court in Rita Mishra Vs. Director, Primary Education, Bihar, AIR 1988 Patna 26. The
question posed before the Full Bench was whether a public servant was entitled to payment of salary to him for the work done despite the fact that his letter of appointment was forged, fraudulent or illegal. The Full Bench held:
“13. It is manifest from the above that the rights to salary, pension and other service benefits are entirely statutory in nature in pubic service. Therefore, these rights including the right to salary, spring from a valid and legal appointment to the post. Once it is found that the very appointment is illegal and is non est in the eye of law, no statutory entitlement for salary or consequential rights of pension and other monetary benefits can arise. In particular, if the very appointment is rested on forgery, no statutory right can flow it.”
We agree with the view taken by the Patna High Court in the aforesaid cases.
9. What is the justification for imposition of penalty in the case of sexual harassment, based on the report of the Complaints Committee without initiating any proceedings under Rule 14 of the CCA Rules?
Cases relating to sexual harassment are covered under the proviso the Rule 14(2) which is extracted hereunder:
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
As the employee had been provided reasonable opportunity of defence before the Complaints Committee he cannot complain of denial of reasonable opportunity of defence.
10. What about the cases relating to sub-letting of Government Accommodation?
Based on the following observation of the Hon’ble Supreme Court in its order dated 29.11.1996 in Writ Petition No. 585/94 (S.S.Tiwari Vs. UOI & Others), the Government has issued instructions [DOPT OM No. 11012/2/97-Estt.(A), dated 31.12.1997] for initiating proceedings against the erring Government Servants. However it must be observed that in these types of cases only the findings of the complaints committee are
binding and the proceedings under CCA Rules are required to be carried out:
It is, therefore, obligatory for the disciplinary authority of the department concerned to initiate disciplinary proceedings against concerned Government servant under Rule 14 of the CCS (CCA) Rules, 1965. As soon as the allotment is cancelled by the Directorate of Estate on the ground of sub-letting,
the disciplinary authority of the Department concern shall initiate disciplinary proceedings against the Government servant concerned. The findings of the Directorate of Estates regarding sub-letting shall be binding on the disciplinary authority for the purpose of initiating the disciplinary proceedings. Once the disciplinary proceedings are initiated, the procedure laid down under the CCS (CCA) Rules shall take its own course. Since the disciplinary proceedings in such cases would be initiated on a charge of grave misconduct, the competent authority may consider placing the delinquent Government servant under suspension.”
11. What is the position about the cases falling under the second proviso to clause (2) of Article 311?
The cases discussed above are outside the ambit of CCA Rules. In fact, in the above stated cases, with the exception of sexual harassment and sub-letting of accommodation, the Government Servant is not being awarded any penalty at all. On the other hand, the cases falling under the second proviso to clause (2) of Article 311, the proceedings are very much under the CCA Rules with the only exception that they are under the special provisions prescribed in Rule 19 of the CCA Rules, which, in a sense is the exemption to Rule 14 of the CCA Rules
CHAPTER – 6
1. What is a complaint?
In vigilance parlance, any source of information about a vigilance misdeed in the organization is a complaint. Para 3.1 of the Vigilance Manual (2005 Ed) defines complaint as “Receipt of information about corruption, malpractice or misconduct on the part of public servants, from whatever source, would be termed as a complaint.” Further para 3.2.1 of the above manual gives a non-exhaustive list of what all constitute complaint. Thus, an inspection report, press clipping, property transaction reports under the Conduct Rules, etc. fall within the ambit of complaint, if they throw any light on the misdeed in the organization.
Even in the complaints received from the public or the employees of the organization, there used to be umpteen instances when the author might not have intended that to be a complaint but the communication provided valuable information about an organized crime in the organization and therefore it was treated and registered as a complaint. Some such instances are:
(a) A letter was received from a former employee of the organization seeking arrears of salary for the part of the month in which he was relieved on acceptance of his resignation. While trying to take some reference number from the old pay bill, it turned out that somebody was collecting pay in the name of the resigned employee continuously for several months after the said employee resigned from service.
(b) A representation was received from an employee stating that his name was missing in the seniority list of group ‘D’ employees of the organization. While attempting to check the reasons for this omission, it emerged that the employee in question and several others were appointed through forged appointment orders issued by a racket.
2. What is the first action on receipt of a complaint?
On receipt of a complaint, it is checked whether it has a vigilance angle. If it has vigilance angle, it is entered in the appropriate part of the register prescribed by the Vigilance Manual.
3. What is Vigilance Angle?
Para 1.6.1 of the Vigilance Manual explains what is Vigilance Angle. According to Vigilance Manual, obtaining illegal gratification of any kind by corrupt means or by abusing official position, possession of assets disproportionate to known sources of income, misappropriation, forgery, cheating and other criminal offences are cases having vigilance angle.
Cases of unauthorized absence, over-stayal, insubordination, use of abusive language, etc. do not have any vigilance angle.
There are some border line cases, such as gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible public interest is evident; failure to keep the controlling authority/superiors informed in time – these are some of the irregularities where the disciplinary authority with the help of the CVO should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned.
4. What are the two parts of the register for recording complaints?
One part of the register is meant for registering the complaints in respect of category ‘A’ officers i.e. those in respect of whom the advice of the CVC is required. The other part pertains to Category ‘B’ officers are those in respect of whom CVC advice is not required.
As far as central Government employees are concerned Category ‘A’ refers to Group ‘A’ officers.
If a complaint involves both the categories of officers, it shall be entered in the higher category i.e. category ‘A’.
5. How to deal with anonymous and pseudonymous complaints?
Para 3.8.1 of the CVC Manual provides that as a general rule, no action is to be taken by the administrative authorities on anonymous/pseudonymous complaints received by them. It is also open to the administrative authorities to verify by enquiring from the signatory of the complaint whether it had actually been sent by him so as to ascertain whether it is pseudonymous.
CVC has also laid down that if any department/organisation proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organisation, irrespective of the level of employees involved therein.
Besides, any complaint referred to by the Commission is required to be investigated and if it emerges to be a pseudonymous, the matter must be reported to the Commission.
6. What action is required in the case of false complaints?
If a complaint is found to be malicious, vexatious or unfounded, departmental or criminal action as necessary should be initiated against the author of false complaints
7. What are the various ways in which a complaint can be dealt with? A complaint which is registered can be dealt with as follow:
(a) file it without or after investigation; or
(b) to pass it on to the CBI for investigation/appropriate action; or
(c) to pass it on to the concerned administrative authority for appropriate action on the ground that no vigilance angle is involved; or
(d) to take up for detailed investigation by the departmental vigilance agency.
A Complaint will be treated as disposed off either on issue of charge-sheet or final decision for closing or dropping the complaint.
CHAPTER – 7
1. What is preliminary investigation?
Preliminary investigation, also known as Fact Finding Inquiry, is the process of checking the veracity of a complaint.
2. What is the purpose of preliminary investigation?
Following are purposes of a preliminary investigation:
To check the veracity of the complaint
If the complaint is true, to collect evidence in support of the charge.
3. What are the various options for conducting Preliminary Investigation?
Preliminary Investigation may be carried out either departmentally or through Police authorities.
4. What are the cases which may be investigated departmentally?
Cases involving allegations of misconduct other than an offence, or a departmental irregularity or negligence, and those wherein alleged facts are capable of verification or inquiry within the department/office should be investigated departmentally.
5. What are the cases to be referred to CBI or Police?
As per the Vigilance Manual, the following types of cases are to be referred to CBI or the police:
(a) Allegations involving offences punishable under law which the Delhi Special Police Establishment are authorized to investigate; such as offences involving bribery, corruption, forgery, cheating, criminal breach of trust, falsification of records, possession of assets disproportionate to known sources of income, etc.
(b) Cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons; or those involving examination of non-Government records, books of accounts etc.; and
(c) Other cases of a complicated nature requiring expert police investigation.
6. What is the course of action when the complaint contains both the above mentioned types of cases?
Where the complaint contains both the above mentioned types of issues, decision should be taken in consultation with the Central Bureau of Investigation as to which of the allegations should be dealt with departmentally and which should be investigated by the Central Bureau of Investigation. If there is any difficulty in separating the allegations for separate investigation in the manner suggested above, the better course would be to entrust the whole case to the Central Bureau of Investigation.
7. Can a case be simultaneously investigated by the department as well as CBI?
No. Parallel investigation should be avoided. Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them. Further action by the department in such matters should be taken on completion of investigation by the CBI on the basis of their report. However, if the departmental proceedings have already been initiated on the basis of investigations conducted by the departmental agencies, the administrative authorities may proceed with such departmental proceedings. In such cases, it would not be necessary for the CBI to investigate those allegations, which are the subject matter of the departmental inquiry proceedings, unless the CBI apprehends criminal misconduct on the part of the official(s) concerned.
8. Who can be assigned the task of conducting preliminary investigation?
There are no specific instructions as to who can conduct preliminary investigation. While normally the Vigilance Officers may be entrusted with the task of preliminary investigation, where technical knowledge is required, preliminary investigation may be assigned to an officer having the requisite knowledge. Vigilance Manual recommends that the task may be assigned to an officer of appropriate status if the complaint is against a senior public servant. Seniority/status of the officer conducting preliminary investigation will also be helpful in eliciting information from those who can provide that.
9. What precautionary action will facilitate preliminary investigation?
At times it may be advantageous to transfer the suspected public servants from the charge they are holding to pre-empt prospects of the evidence being tampered or destroyed. But this must be done with requisite tact so that the action does not alert the forces which have played mischief, even before the first step is taken in preliminary investigation.
10. What are the steps involved in conducting preliminary Investigation? Following steps may be helpful for conduct of preliminary investigation: (a) Study and analyse the complaint.
(b) List the facts that need to be verified and the evidence in support thereof.
(c) Check whether any site inspection is necessary. [e.g. If the allegation relates to some construction]
(d) Identify if any evidence relating to the complaint is perishable or likely to undergo change in due course of time [If the crop standing on the land is to be verified, it must be done before harvesting; in certain cases, evidence may be lost during monsoon. etc.]
(e) List the documents and persons who can provide information on the matters raised in the complaint.
(f) Where a surprise check is involved, carry out the same without any delay. Conduct of surprise inspection, where necessary, should be the first visible action of the preliminary investigation. Otherwise, site inspection may be taken up after taking over of documents, as explained in the next sub-para.
(g) In a single swift move, collect all the relevant documents. This is all the more necessary because, once the interested parties come to know that a preliminary investigation is going on, efforts will be made to tamper with the documents. In case any of the documents are required for further action by the authorities concerned, authenticated copies may be made available to the authorities concerned. If the above course of action is not possible for any reason, the documents must be left to the custody of an officer in the relevant branch of the organization making him/her responsible for the safety of the documents.
(h) Where relevant, write to the complainant, if not already done by the administrative authorities. Ask if he/she can provide any additional information or evidence. In case the complaint has been triggered by an aggrieved individual, (say an unsuccessful bidder, unsuccessful candidate for recruitment) the complainant may provide necessary documents with a sense of vengeance!
(i) Talk to the persons who are likely to have information about the issue. Record the proceedings and get it signed by the deposer. This phase of the preliminary investigation is perhaps most challenging because one may come across several reluctant and unwilling persons. The preliminary investigation officer should use all his tact and persuasive skills for eliciting information even from the unwilling witnesses.
(j) While it is not mandatory to talk to the suspected public servant at the stage of preliminary investigation, it may be a desirable course of action in most of the cases.
(k) Study the information collected so as to formulate views as to whether a conclusion could be drawn about the veracity of the allegations.
(l) If no conclusion could be arrived at, repeat the steps mentioned above
(m) Prepare investigation report and submit with the original documents collected or created during the investigation.
11. Does the failure to contact the suspected public servant amount to violation of the principles of natural justice?
As the purpose of preliminary investigation is to ascertain truth there is no need for contacting the suspected public servant. As is well known, no penalty can be imposed based on the findings of a preliminary investigation without issue of a formal charge sheet and conduct of formal departmental proceedings.
In the entire gamut of activities during disciplinary proceedings, Preliminary Investigation has a unique feature in that it is completely at the discretion of the administrative authorities. It is not covered by any statutory provision; not even the principles of natural justice are applicable to it. This has been explicitly elucidated by the Hon’ble Supreme Court in Kendriya Vidyalaya Sangathan Vs. Arunkumar Madhavrao Sinddhaye and Anr. [ JT2006(9)SC549, (2007)1SCC283, 2007(3)SLJ41(SC)]
“Therefore, in order to ascertain the complete facts it was necessary to make enquiry from the concerned students. If in the course of this enquiry the respondent was allowed to participate and some queries were made from the students, it would not mean that the enquiry so conducted assumed the shape of a formal departmental enquiry. No articles of charges were served upon the respondent nor the students were asked to depose on oath. The High Court has misread the evidence on record in observing that articles of charges were served upon the respondent. The limited purpose of the enquiry was to ascertain the relevant facts so that a correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or a violation of principle of natural justice could have the result of vitiating the whole enquiry.”
12. What to do if a need arises for contacting officials of other department while conducting preliminary investigation?
In such an eventuality, the investigation officer may seek the assistance of the department concerned, through its CVO, for providing facility for interrogating the person(s) concerned and/or taking their written statements.
13. What to do if a need arises for examining documents of non-official organization or to collect evidence from non-official persons?
In such an eventuality, further investigation should be entrusted to CBI.
14. What attributes will make a successful preliminary investigation officer?
(a) Knowledge – of not only the rules and regulations but also practices and procedures pertaining to the organization and prevailing at the relevant point of time. For example, if the office copy of the document is not available in the file, the preliminary investigation officer should know that it was customary for the copies of such letters to be endorsed to certain subordinate organizations or place copies in certain folders. An officer with the knowledge of the practices and procedures will manage to get copy of the letter from such sources as well.
(b) Imagination – the preliminary investigation officer has to visualize where from the relevant information relating to the transaction is likely to be available and who all are likely to know about it. For example, if there is some suspicion about the family details of the employee, the preliminary investigation officer should visualize that such details may be available in the attestation form, GPF advance applications, children education allowance applications, LTC claims, medical reimbursement claims, nomination forms, etc.
(c) Tenacity – tenacity is the quality of possessing “never-say-die” spirit. While conducting preliminary investigation, the officer may come across several dead ends. He/she takes a clue and proceeds. After some progress, it may abruptly end without giving any definite conclusion. Preliminary investigation officer will have to pursue another thread. Even if this ends abruptly, the officer must pursue yet another clue.
(d) Eye for details – “Look for the abnormal” is the catch phrase for the preliminary investigation officer.
15. What are the components of the report of the preliminary investigation?
(a) Introduction: [e.g.: The undersigned was directed vide order No. ……. Dated …. of ….. to carry out preliminary investigation of the alleged irregularities listed in the inspection report no. ,…..dated …. of the ….. regarding ……]
(b) Gist of the allegations: [e.g.: Prima facie it appeared from the inspection report that there was mismatch between the physical
delivery of goods and the entry in the records. It seemed that the above discrepancy was attributable to the connivance and active participation of some of the officers of the material division….]
(c) Points needing proof: [e.g.: The investigation was required to establish whether there was any manipulation of marks in the recruitment test held during Jul 2010 and who were responsible for the manipulation]
(d) Gist of action taken by the preliminary investigation officer: [preliminary investigation officer was required to obtain documents and talk to officials of …… office. This was arranged with the kind help of Shri xxx CVO of …. As the allegations pertained to availing of subsidy without actually cultivating the crops for which it was granted, there was a need for site inspection also. The investigation officer carried out site inspection at …… on …….]
(e) Evidence collected: [preliminary investigation officer collected 58 documents as listed in the Annexure A to this report and talked to the 17 persons listed in Annexure B. out of the above, the documents listed at S. No. 25 to 33 were obtained from ……… Oral witnesses at S. No. 9 to 12 are employees of ….. who were contacted through the kind intervention of Shri …. CVO ….]
(f) Evaluation of evidence:[ this is the heart and soul of the report]
(g) Whether the Suspected Public Servant was contacted? If so what is his version?
(h) Evidence controverting the version of the Suspected public servant (i) Conclusion.
16. What is time limit for completion of preliminary investigation? CVC expects preliminary investigation to be completed within three months
CHAPTER – 8
ACTION ON INVESTIGATION REPORT
1. What are the possible actions on the Preliminary Investigation Report? Possible actions on the Preliminary Investigation report are as under:
(a) Closure of the case: In case the investigation report indicates that no misconduct has been committed, the case may be closed.
(b) Action against false complaints:
(c) Administrative action: This includes issue of warning, clarification to the decision making authorities, etc.
(d) Minor Penalty Proceedings
(e) Major penalty proceedings
(f) Criminal prosecution
2. What actions are to be taken against persons filing false complaints?
Para 4.17.1 of the CVC Manual Sixth Edition, 2004, provides that If a complaint against a public servant is found to be malicious, vexatious or unfounded, it should be considered seriously whether action should be taken against the complainant for making a false complaint.
In case false complaints have been filed by Government servants, initiation of suitable departmental action against them may be considered by making reference to the authorities having disciplinary powers over such Government Servants.
Possibility of launching criminal prosecution under section 182 of IPC by lodging a complaint under section 195(1)(a) of Criminal Procedure must be explored.
3. What is the role of CVC in making decisions on Preliminary Investigation Reports?
First stage advice of CVC is to be obtained in respect of cases falling under purview of CVC. i.e. following types of cases:
(a) The cases which have been referred by the CVC for report
(b) The cases having vigilance angle and
(c) Pertaining to Group ‘A’ officer or a group of officers including a Group A officer
4. What is the procedure for making reference to CVC for seeking first stage advice?
This is dealt with in a subsequent chapter
CHAPTER – 9
CONSULTATION WITH CENTRAL VIGILANCE COMMISSION
1. What is the origin and present status of Central Vigilance Commission (CVC)?
Central Vigilance Commission was set up by the Government of India by a Resolution, dated 11.2.1964 based on the recommendations of the Committee on Prevention of Corruption [popularly known as Santhanam Committee]. Consequent upon the judgement of the Hon’ble Supreme Court in Vineet Narain vs. Union of India [CWP 340-343 of 1993], the Commission was accorded statutory status with effect from 25.8.1998 through “The Central Vigilance Commission Ordinance, 1998”. Subsequently, the CVC Bill was passed by both Houses of Parliament in 2003 and the President gave its assent on 11th September 2003. Thus, the Central Vigilance Commission Act, 2003 (No.45 of 2003) came into effect from that date.
2. What is the composition of the CVC?
In terms of the provisions made in the CVC’s Act, the Commission shall consist of a Central Vigilance Commissioner [Chairperson] and not more than two Vigilance Commissioners [Members]. Presently, the Commission is a three member Commission consisting of a Central Vigilance Commissioner and two Vigilance Commissioners.
3. What is the mode of appointment of the Central Vigilance Commissioner and other Vigilance Commissioners?
The Central Vigilance Commissioner and the Vigilance Commissioners are appointed by the President by warrant under his hand and seal based on the recommendations of a committee comprising the following:
(a) the Prime Minister — Chairperson; (b) the Minister of Home Affairs — Member; (c) the Leader of the Opposition in the House of the People — Member
for a term of four years from the date on which they enter upon their offices or till they attain the age of sixty-five years, whichever is earlier.
4. What is the term of the Central Vigilance and other Vigilance Commissioners?
The Central Vigilance Commissioner and other Vigilance Commissioners shall hold officer for a term of four years from the date on which they enter upon their offices or till they attain the age of sixty-five years, whichever is earlier.
5. What measures have been provided in the Act to ensure independence of the Central Vigilance Commission?
Following are some of the measures provided in the Act to ensure independence of the Central Vigilance Commission:
(a) Central Commissioner and the Vigilance Commissioners have been provided a fixed term of appointment, as seen above.
(b) They are not eligible for re-appointment except that a Vigilance Commissioner may be appointed as the Central Vigilance Commissioner, for the left over period out of the total of four yers
(c) On ceasing to hold office, they are not eligible for appointment as
(i) any diplomatic assignment, appointment as administrator of a Union territory and such other assignment or appointment which is required by law to be made by the President by warrant under his hand and seal.
(ii) further employment to any office of profit under the Government of India or the Government of a State.
(d) They can be removed from office only by order of the President on the ground of proved misbehavior or incapacity after the Supreme Court, on a reference made to it by the President, has, on inquiry, reported that the Central Vigilance Commissioner or any Vigilance Commissioner, as the case may be, ought on such ground be removed.
6. What are the functions and powers of CVC?
In addition to the functions entrusted to CVC vide Government of India’s Resolution dated 11.02.1964, the CVC Act assigns the following functions and powers to CVC:
(a) To exercise superintendence over the functioning of Delhi Special Police Establishment [DSPE] insofar as it relates to investigation of offences alleged to have been committed under the Prevention of Corruption Act (PC Act) or an offence with which a public servant belonging to a particular category [i.e. a member of All India Services serving in connection with the affairs of the Union; or Group ‘A’ officer of the Central Government; or an officer of the Central Public Sector enterprise/autonomous organisation etc.] may be charged under the Code of Criminal Procedure at the same trial;
(b) To give directions to the DSPE for the purpose of discharging the responsibility of superintendence. The Commission, however, shall not exercise powers in such a manner so as to require the DSPE to investigate or dispose of any case in a particular manner;
(c) To inquire or cause an inquiry or investigation to be made on a reference made by the Central Government wherein it is alleged that a public servant being an employee of the Central Government or a corporation established by or under any Central Act, Government company, society and any local authority owned or controlled by that Government, has committed an offence under the PC Act; or an offence with which a public servant may, under the Code of Criminal Procedure, 1973, be charged at the same trial;
(d) To inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to the following categories of officials, wherein it is alleged that he has committed an offence under the PC Act:
(i) Members of All India Services serving in connection with the affairs of the Union;
(ii) Group ‘A’ Officers of the Central Government;
(iii) Officers of Scale-V and above of public sector banks;
(iv) Such level of officers of the corporations established by or under any Central Act, Government companies, societies and other local authorities, owned or controlled by the Central Government, as that Government may, by notification in the Official Gazette, specify in this behalf, provided that till such time a notification is issued, all officers of the said corporations, companies, societies and local authorities shall be deemed to be the persons referred to in this clause.
(e) To review the progress of applications pending with the competent authorities for sanction of prosecution under the PC Act;
(f) To review the progress of investigations conducted by the DSPE into offences alleged to have been committed under the PC Act;
(g) To tender advice to the Central Government, corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by the Central Government on such matters as may be referred to it by that Government, the said Government companies, societies and local authorities owned or controlled by the Central Government or otherwise; and
(h) To exercise superintendence over the vigilance administration of various Ministries of the Central Government or corporations established by or under any Central Act, Government companies, societies and local authorities owned or controlled by that Government.
7. What functions were assigned to CVC vide Government of India’s Resolution dated 11.02.1964?
Clause 24 of the CVC Act empowers the Commission to discharge the functions entrusted to it vide Government of India’s Resolution dated 11.02.1964, insofar as those functions are not inconsistent with the provisions of the Act. Accordingly, the Commission will continue to discharge the following functions over and above those assigned vide the CVC Act:
(a) Appointment of CVOs: The Commission would convey approval for appointment of CVOs in terms of para 6 of the Resolution, which laid down that the Chief Vigilance Officers will be appointed in consultation with the Commission and no person whose appointment as the CVO is objected to by the Commission will be so appointed.
(b) Writing ACRs of CVOs: The Central Vigilance Commissioner would continue to assess the work of the CVO, which would be recorded in the character rolls of the officer concerned in terms of para 7 of the Resolution.
(c) Commission’s advice in Prosecution cases: In cases in which the CBI considers that a prosecution should be launched and the sanction for such prosecution is required under any law to be issued in the name of the President, the Commission will tender advice, after considering the comments received from the concerned Ministry/Department/Undertaking, as to whether or not prosecution should be sanctioned.
(d) Resolving difference of opinion between the CBI and the administrative authorities: In cases where an authority other than the President is competent to sanction prosecution and the authority does not propose to accord the sanction sought for by the CBI, the case will be reported to the Commission and the authority will take further action after considering the Commission’s advice. In cases recommended by the CBI for departmental action against such employees as do not come within the normal advisory jurisdiction of the Commission, the Commission will continue to resolve the difference of opinion, if any, between the CBI and the competent administrative authorities as to the course of action to be taken.
(e) Entrusting cases to CDIs: The Commission has the power to require that the oral inquiry in any departmental proceedings, except the petty cases, should be entrusted to one of the Commissioners for Departmental Inquiries borne on its strength; to examine the report of the CDI; and to forward it to the disciplinary authority with its advice as to further action.
(f) Advising on procedural aspects: If it appears that the procedure or practice is such as affords scope or facilities for corruption or misconduct, the Commission may advise that such procedure or practice be appropriately changed, or changed in a particular manner.
(g) Review of Procedure and Practices: The Commission may initiate at such intervals as it considers suitable review of procedures and practices of administration insofar as they relate to maintenance of integrity in administration.
(h) Collecting information: The Commission may collect such statistics and other information as may be necessary, including information about action taken on its recommendations.
(i) Action against persons making false complaints: The Commission may take initiative in prosecuting persons who are found to have made false complaints of corruption or lack of integrity against public servants.
8. What are the cases on which the Commission’s advice is sought? The Commission’s advice is sought in the following types of cases?
(a) Where the official involved belongs to the category under the purview of the Commission (i.e. Group A officer in the Government)
(b) Where the case has vigilance angle
9. What are the cases having vigilance angle?
Vigilance Manual (Sixth Edition, 2005) indicates two categories of cases having Vigilance Angle, viz. the cases which indisputably have vigilance angle and the cases which, depending upon the facts and circumstances have vigilance angle.
Para 1.6.1 illustrates the following acts wherein Vigilance angle is obvious:
(i) Demanding and/or accepting gratification other than legal remuneration in respect of an official act or for using his influence with any other official.
(ii) Obtaining valuable thing, without consideration or with inadequate consideration from a person with whom he has or likely to have official dealings or his subordinates have official dealings or where he can exert influence.
(iii) Obtaining for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant.
(iv) Possession of assets disproportionate to his known sources of income.
(v) Cases of misappropriation, forgery or cheating or other similar criminal offences.
Besides, para 1.6.2 provides the following illustrative list of irregularities where circumstances will have to be weighed carefully to take a view regarding the officer’s integrity:
(a) Gross or willful negligence;
(b) recklessness in decision making;
(c) blatant violations of systems and procedures;
(d) exercise of discretion in excess, where no ostensible public interest is evident; (e) failure to keep the controlling authority/ superiors informed in time
The manual suggests that in these types of cases, the disciplinary authority with the help of the CVO should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned.
10. How to deal with the cases which do not have a vigilance angle? Cases which do not have a vigilance angle will have to be dealt with departmentally.
11. What is the procedure for seeking first stage advice?
CVC has vide its Circular No. 21/8/09 dated the 6th August 2009 prescribed revised format for the proposals seeking first stage advice. A copy of the letter is annexed herewith for ease of reference.
12. What is the procedure for seeking the second stage advice of CVC?
Based on the recommendations of the Hota Committee (Committee of Experts to review the procedure of Disciplinary/Vigilance Inquiries and recommended measures for their expeditious disposal), DoPT, vide its OM No. No.372/19/2011-AVD-Ill(Pt.1) dated the 26th September, 2011 has dispensed with second stage consultation with CVC in disciplinary matters where UPSC is consulted. However, in those cases where consultation with UPSC is not required as per extant rules/instructions, the second stage consultation with CVC should continue.
In respect of the cases where CVC is to be consulted, the details of the documents to be forwarded is available in Circular No. 21/8/09 dated the 6th August 2009 annexed to this chapter
13. What is the position regarding re-consideration in case of disagreement of the organization with the recommendations of the CVC?
This aspect has been clarified vide CVC circular No.15/4/08 dated 24th April, 2008, as under:
“The Commission has, therefore, decided that no proposal for reconsideration of the Commission’s advice would be entertained unless new additional facts have come to light which would have the effect of altering the seriousness of the allegations/charges leveled against an officer. Such new facts should be substantiated by adequate evidence and should also be explained as to why the evidence was not considered earlier, while approaching the Commission for its advice. The proposals for reconsideration of the advices, if warranted, should be submitted at the earliest but within two months of receipt of the Commission’s advice. The proposals should be submitted by the disciplinary authority or it should clearly indicate that the proposal has the approval of the disciplinary authority.”
14. Why there is need of sanction for prosecution?
Under Section 19 of the Prevention of Corruption Act, 1988, it is necessary for the prosecuting authority to have the previous sanction of the appropriate administrative authority for launching prosecution against a public servant. The section provides that “No court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction” of the authorities mentioned therein
The purpose behind the above provision is ‘to afford a reasonable protection to a public servant, who in the course of strict and impartial discharge of his duties may offend persons and create enemies, from frivolous, malicious or vexations prosecution and to save him from unnecessary harassment or undue hardship which may result from an inadequate appreciation by police authorities of the technicalities of the working of a department’
From the above stated purpose of the need for sanction for prosecution it may be evident that in respect of retired public servants there is no need for any sanction for prosecution
Sanction is to be accorded by the authority competent to remove the delinquent from service.
15. Whether a private citizen can file a complaint for prosecution of a corrupt public servant.
As per the judgment dated 31 January 2012 of the Hon’ble Supreme Court in Civil appeal No 1193 of 2012 [Dr. Subramanian Swamy Vs Dr. Manmohan Singh and another] the right of the private citizen to file criminal complaint against a corrupt public servant has been up held.
16. What is the procedure regarding issue of sanction for prosecution?
Latest guidelines on the subject were issued vide DoPT OM No. No.372/19/2012- AVD-III dated 3rd May, 2012. Following is the gist of these guidelines:
(a) In all cases where the Investigating Agency has requested sanction for prosecution and also submitted a draft charge sheet and related documents along with the request, it will be mandatory for the competent authority to take a decision within a period of 3 months from receipt of request, and pass a Speaking Order, giving reasons for this decision.
(b) In the event that the competent authority refuses permission for sanction to prosecute, it will have to submit its order including reasons for refusal, to the next higher authority for information within 7 days. Wherever the Minister-in-charge of the Department is the competent authority and he decides to deny the permission, it would be incumbent on the Minister to submit, within 7 days of passing such order denying the permission, to the Prime Minister for information.
(c) It will be the responsibility of the Secretary of each Department/Ministry to monitor all cases where a request has been made for permission to prosecute. Secretaries may also submit a certificate every month to the Cabinet Secretary to the effect that no case is pending for more than 3 months, the reasons for such pendency and the level where it is pending may also be explained.
(d) In cases of disagreement where the competent authority proposes to disagree with the investigating agency/CVC, the matter shall be referred to DoP&T and DoP&T’s views in such cases must be communicated to the Competent Authority within such time as would enable the competent authority to pass the final speaking order within a period of three months.
CHAPTER – 10
(Rule 10 of CCS (CCA) Rules, 1965)
1. What is suspension?
Suspension is a temporary deprivation of office. The contract of service is not terminated. However, the Govt. servant placed under suspension is not allowed to discharge the functions of his office during the period of his suspension. It is not a penalty under the CCS (CCA) Rules, 1965. It is only an intermediate step. However, it visits the Government servant with civil consequences. An appeal lies against the order of suspension (under Rule 23(i)) and the employee is entitled to receive subsistence allowance during the period of suspension.
1.2 An order of suspension should be made with considerable amount of care and thought. The number of suspended officials is to be kept at the minimum. Hence, before placing a Govt. servant under suspension, it should be found out whether the purpose could be achieved by transferring him to an other place or asking him to go on leave, etc.
2. Who can suspend? (Rule 10(1)
2.1 Before passing an order of suspension, the authority proposing to make the order should verify whether it is competent to do so. An order of suspension made by an authority not competent do so is illegal and will give cause of action for: a) Setting aside of the order of suspension; and
b) Claim for full pay and allowances
2.2. The following authorities are empowered to place a Govt. servant under suspension:-
(i) Appointing authority or any authority to which the Appointing authority is subordinate.
(ii) Disciplinary authority.
(ii) Any other authority empowered in this behalf by the President of India by general or special order.
2.3 Whenever an Authority, lower than the Appointing Authority places a Govt. servant under suspension, the circumstances leading to suspension must be communicated to the Appointing Authority forthwith. However, such report need not be made in the case of an order of suspension made by the Comptroller and Auditor General in respect of a member of the Indian Audit and Accounts service and also in respect of a holder, other than a regular member of the Indian Audit and Accounts Service, of a post of Assistant Accountant General or equivalent.
2.4 Illustration: For the post of Assistant of Central Secretariat Service (CSS), ‘President’ is the appointing authority. However, ‘Secretary’ of the cadre authority is the disciplinary authority for imposition of the minor penalty. If the Secretary places an Assistant under suspension, then the circumstances leading to suspension must be communicated to the Appointing Authority.
2.5 Persons on deputation- [Rule 20 and Rule 21]
Where the services of a Government servant are lent by one department to another department or borrowed from or lent to a State Government or an authority subordinate thereto or borrowed from or lent to a local authority or other authority, the borrowing authority can suspend such Government servant under Rule 20. The lending authority should however, be informed forthwith of the circumstances leading to the Order of suspension.
3. When can a Government servant be placed under suspension? Rule 10(1)
3.1 As per rule 10(1) a government servant may be placed under suspension under the following three situations:
(i) Where a disciplinary proceeding is contemplated or is pending; or
(ii) Where in the opinion of the competent authority, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(iii) Where a case against him in respect of any criminal offence is under investigation, inquiry or triali;
3.2 When Government servant is involved in dowry death case.
Whenever a Govt. servant is involved in a dowry death case and a case has been registered by the police against him under Sec, 304-B of IPC, in the event of his arrest, he shall be placed under suspension irrespective of the duration of the custody. Even if he is not arrested, he will be placed under suspension immediately on submission of the report under sub-section (2) of Section 173 of the Cr.P.C, 1973 by Police to the Magistrate, if the report prima-facie indicates that the offence has been committed by the Government servant.
Guiding factor for deciding whether or not to place a Govt servant under suspensionii
3.3 Public interest should be the guiding factor in deciding whether or not a Government servant, including a Government servant on leave, should be placed under suspension; or whether such action should be taken even while the matter is under investigation and before a prima-facie case has been established.
3.4 Certain circumstances under which it may be considered appropriate to do so are indicated below for the guidance of competent authorities:
(i) Where the continuance in office of the Government servant will prejudice investigation, trial or any inquiry (e.g., apprehended tampering with witnesses or documents);
(ii) Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which he is working;
(iii) Where the continuance in office of the Government servant will be against the wider public interest, e.g., if there is a public scandal and it is considered necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) Where a preliminary enquiry into allegations has revealed a prima-facie case justifying criminal or departmental proceedings which are likely to lead to his conviction and/or dismissal, removal or compulsory retirement from service;
3.5. In the circumstances mentioned below, it may be considered desirable to suspend a Government servant for misdemeanors of the following types:
(i) an offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gains;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government;
(iv) desertion of duty;
(v) refusal or deliberate failure to carry out written orders of superior officers.
In respect of the type of misdemeanor specified in sub clauses (iii), (iv) and (v), discretion should be exercised with care.
3.6 Without prejudice to the above guidelines, there are certain kinds of cases where the SPE will, invariably, advise that the officer should be placed under suspension. If the CBI recommends suspension of a public servant and the competent authority does not propose to accept the CBI’s recommendation, it may be treated as a case of difference of opinion between the CBI and the administrative authority and the matter may be referred to the Central Vigilance Commission for its advice. Further, if a public servant had been suspended on the recommendation of
the CBI, the CBI may be consulted if the administrative authority proposes to revoke the suspension order.
3.7. A Government servant may also be suspended by the competent authority in cases in which the appellate, revising or reviewing authority, while setting aside an order imposing the penalty of dismissal, removal or compulsory retirement directs that de novo inquiry should be held; or that steps from a particular stage in the proceedings should be taken again; and considers that the Government servant should be placed under suspension even if he was not suspended previously. The competent authority may, in such cases, suspend a Government servant even if the appellate or reviewing authority has not given any direction about the suspension of Government servant.
3.8. A Government servant against whom proceedings have been initiated on a criminal charge but who is not actually detained in custody (e.g. a person released on bail) may be placed under suspension by an order of the competent authority under clause (b) of Rule 10 (1) of the Central Civil Services (Classification, Control and Appeal) Rules 1965. The Supreme Court in the case of Niranjan Singh and other vs. Prabhakar Rajaram Kharote and others (SLP No. 393 of 1980) have also made some observations about the need/desirability of placing a Government servant under suspension, against whom serious charges have been framed by a criminal court, unless exceptional circumstances suggesting a contrary course exist.
3.9. Therefore, as and when criminal charges are framed by a competent court against a Government servant, the disciplinary authority should consider and decide the desirability or otherwise of placing such a Government servant under suspension in accordance with the rules, if he is not already under suspension. If the Government servant is already under suspension or is placed under suspension, the competent authority should also review the case from time to time, in accordance with the instructions on the subject, and take a decision about the desirability of keeping him under suspension till the disposal of the case by the Court.
4. Deemed Suspension
4.1. Deemed suspension is a case when a Government Servant is considered to be under suspension without a conscious decision of any of the above mentioned authorities i.e. the rules create a legal fiction in which though no actual order is issued it is deemed to have been passed by operation of the legal fiction. Such a suspension is deemed to have arisen consequent to the happening of certain events. Nevertheless an order is required to be passed by the competent authority. Such deemed suspension fall under two categories
i. during the service period [Rule 10(2)] and
ii. in respect of the period when the Government servant ceased to be in service[Rule 10(3) and 10(4)]
4.2 Rule 10(2)
During the service period, a person is deemed to have been placed under suspension in the following cases:-
i) from the date of detention in custody (whether on criminal charge or otherwise) for a period exceeding 48 hours.
ii) from the date of conviction for an offence leading to imprisonment for a period exceeding 48 hours if he is not forthwith dismissed or removed or compulsorily retired consequent upon such conviction. (48 hours will be computed from the commencement of the imprisonment).
4.3 Government servant to intimate his arrest/convictioniii:
Although the Police Authorities will send prompt intimation of arrest and/or release on bail etc., of a Government servant to the latter’s official superior as soon as possible after the arrest and/ or release indicating the circumstances of the arrest etc., but it is also the duty of the Government servant who may be arrested, or convicted, for any reason to intimate promptly the fact of his arrest/conviction and circumstances connected therewith to his official superior even though she/he might have been released on bail. Failure to do so will render him liable to disciplinary action on this ground alone.
4.4. Rule 10(3)-order of dismissal, removal compulsory retirement set aside by on Appeal or Review
When a Govt. servant already under suspension is dismissed, removed or compulsorily retired but such punishment is set aside on appeal or review and further enquiry is ordered, the order of suspension will be deemed to continue in force from the date of the order of the punishment. Such order shall remain in force until further orders. It may be noted that this rule gets invoked only if the Government servant was at the time of removal, dismissal or compulsory retirement was already under suspension and not if she/he was not under suspension at the time of compulsory retirement, removal or dismissal as the case may be.
4.5 Rule 10(4): Court setting aside the order of compulary retirement, removal, dismissal
A Govt. servant might have been dismissed or removed or compulsorily retired from service and a court of law might have set aside the penalty order or declared such order void. In such a case, if the disciplinary authority holds further enquiry into the case, then such Govt. servant is deemed to have been placed under suspension from the date of the original order of punishment. Such order will remain in force
until further orders. Further enquiry is to be held only if the Court has set aside the order of penalty on technical grounds (without going into the merits of the case). Further inquiry into the charges which have not been examined by the court can, however, be ordered depending on the facts and circumstances of the case.
4.6 There are two conditions which must be satisfied in order to attract the operation of Sub-rule (4) of Rule 10 of CCS (CCA) Rules, 1965. Firstly, the order of dismissal, removal or compulsory retirement must be set aside in consequence of a decision of a Court of Law. Secondly, the disciplinary authority must decide to hold a fresh enquiry on the allegations on which the order of dismissal, etc. was originally passed. (H. L. Mehra Vs. Union of India – AIR 1974 SC 1281).
5. Revocation of the order of suspension and the Review Committee.
5.1 The general rule is that an order of suspension made or deemed to have been made may at any time be modified or revoked by the competent authority(Rule 10(5)(c)].
5.2. The earlier position i.e. prior to 2004 was that unless the competent authority issued an order of revocation, the employee continued to remain suspended. This position has undergone a modification after amendment of the Rule 10 of the CCS (CCA) Rules and instructions issued in the year 2004iv and also in 2007v.The present position is that an order of suspension made or deemed to have been made will not be valid after a period of 90 days unless it is extended after review by the Review Committee constituted. This review has to be done before expiry of ninety days from the effective date of suspension. If it is decided to further continue the suspension, it shall not be continued beyond 180 days at a time. After 180 days, the review has to be done again. [Rule 10(6)]. Thus the constitution of Review Committee and review of the suspension has been given a statutory basis which prior to amendment of Rule 10 was governed by executive instructions.
5.3. Detailed orders have also been issued by DoPT on 7/1/2004vi wherein each Department has been requested to set a Review Committee to review cases of suspension. The Review Committee may take a view regarding revocation/ continuation in view of the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him.
However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national, security, the Review Committee may recommend the continuation of the suspension of the official concerned.
5.4. It may, however, be noted that no review as mentioned above will be necessary in cases of orders of deemed suspension under Rule 10(2) when the Government servant continues to be under detention. Similarly in cases of ‘deemed suspension, due to situations mentioned in para 4, the order of suspension shall continue to remain in force until it is modified or revoked.
Case law: In the case of Union of India V Dipak Mali [C.A.No.6661 of 2006 date of judgment 15.12.2009] the Supreme Court confirming the judgments of CAT and the High Court held that the suspension had lapsed in terms of rule 10(7) as it was neither reviewed nor extended. The respondent in this case who was working in the Gun Carriage Factory, Jabalpur was placed under suspension on 10.8.2002. But the suspension was not reviewed as required by sub-rule (6) of Rule 10 which took effect from 2.6.2004.[Union of India V Dipak Mali C.A.No.6661 of 2006 date of judgment 15.12.2009]
6. Duration of the order of suspension-Rule 10(6) and 10(7)
6.1 Though suspension is not a punishment, it constitutes a great hardship for a Government servant. It also involves payment of subsistence allowance without the employee performing any useful service to the Government. In fairness to him/her, the period of suspension should be reduced to the barest minimum. As per the latest rule position mentioned above, the order of suspension (other than deemed suspension) could initially be for a maximum period of 90 days which if not continued by the review committee automatically stands revoked. If continued further by the competent authority on the recommendation of the review committee, it can be for a maximum period of 180 days at a time.
6.2 The review Committee may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case.If an officer has been under suspension for one year without any charges being filed in a court of law or not charge memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security the Review Committee may recommend the continuation of the suspension of the official concerned.
7 Suspension not to be ordered in minor penalty casesvii.
On the conclusion of the disciplinary proceedings, if a minor penalty is imposed, suspension is regarded as unjustified and full pay and allowances and other consequential benefits are given to him and the period of suspension is treated as duty.
8. Format of the order of suspension
8.1 A government servant can be placed under suspension only by a specific order in writing by the Competent Authority. A standard form in which the order should be made is given in part-IIviii.
8.2 In cases of deemed suspension under Rule 10(2), 10(3) or 10(4), suspension will take effect automatically even without a formal order of suspension. However, it is desirable for purposes of administrative record to make a formal order (Standard form in Part-II).
Format may have to be modified to fully meet the requirements of the individual case.
8.3 In all the cases the standard form may not fully meet the requirements of the particular case and hence the language of the order may have to suitably modified or adopting them to suit the requirement of the individual cases. For example, if at the time the Government Servant is being placed under suspension, apart from a criminal offence which is under trial there is also certain other disciplinary case under contemplation, as well as criminal cases under investigation, which is also being taken into consideration for placing the Government Servant under suspension, the order of his suspension should indicate all the cases (criminal/departmental under investigation/trial/contemplation) on the basis of which it is considered necessary to place the Government servant under suspension so that in the event of the reinstatement, the outcome of all such cases can be taken into account, while regulating the period of suspension.ix
8.4 In case where the Government servant is under suspension(whether in connection with any disciplinary proceeding or otherwise) and any other case is initiated against him and the competent authority considers it necessary that the Government servant should remain under suspension in connection with that case also, the competent authority should pass fresh orders on the Government servant’s suspension with specific reference to all the cases against the Government servant so that in the event of reinstatement of the Government servant in one case the facts of other cases can also be taken into account while regulating the period of suspensionx.
8.5 Copy of the order should be endorsed to the CVC also in cases involving a vigilance angle in respect of employees in whose case the Commission’s advice is necessary.
9. Date of Effect of order of suspension
9.1 Except in case of ‘deemed suspension’ which may take effect from a retrospective date; an order of suspension can take effect only from the date on which it is made. Ordinarily it is expected that the order will be communicated to the Government servant simultaneously.
9.2 Difficulty may, however, arise in giving effect to the order of suspension from the date on which it is made if the Government servant proposed to be placed under suspension:
a) is stationed at a place other than where the competent authority makes the order of suspension;
b) is on tour and it may not be possible to communicate the order of suspension; c) is an officer holding charge of stores and /or cash, warehouses, seized goods, bonds etc.
d) A person on leave or who is absent unauthorisedly
9.3 In cases of types (a) and (b) above, it will not be feasible to give effect to an order of suspension from the date on which it is made owing to the fact that during the intervening period a Government servant may have performed certain functions lawfully exercisable by him or may have entered into contracts. The competent authority making the order of suspension should take the circumstances of each such case into consideration and may direct that the order of suspension will take effect from the date of its communication to the Government servant concerned.
9.4 In case of (c) it may not be possible for the government servant to be placed under suspension to hand over charge immediately without checking and verification of stores/cash etc. In such cases the competent authority should, taking the circumstances of each case into consideration, lay down that the checking and verification of stores and/or cash should commence on receipt of suspension order and should be completed by a specified date from which suspension should take effect after formal relinquishment of charge.
9.5 In case of (d) there should not be any difficulty in the order of suspension operating with immediate effect. It should not be necessary to recall a Government servant if he is on leave for the purpose of placing him under suspension. When a Government servant is placed under suspension while he is on leave, the unexpired portion of the leave should be cancelled by an order to that effect.
10. Subsistence allowance
10.1 A Government servant placed under suspension or deemed suspension is not entitled to salary but is entitled to draw for the first three months subsistence allowance at an amount equal to leave salary during half pay or half average pay plus dearness allowance as admissible on such amount (i.e. pro-rata) but CCA and HRA as admissible to him before suspension. The matter is regulated by the provisions of F.R.53. The order for subsistence allowance should be passed simultaneously with the order of suspension or as early as possible to avoid hardship to the concerned Government servantxi.
10.2 Review of Subsistence Allowance: If the period of suspension exceeds 3 months, the amount of subsistence allowance may be increased or decreased upto a maximum of 50% of the amount being drawn by him during the first three months, depending on whether the reasons for continued suspension are attributable directly or indirectly to the Government servant. In view of the fact that any failure on the part of the Competent authority to pass on order for an increase or decrease of the subsistence allowance, as soon as the suspended officer has been under
suspension for three months, can either invoke unnecessary expenditure to Government, it should be ensured that action is initiated in all such cases and a decision is taken in sufficient time before the expiry of the first three months so that the requisite order could take effect as soon as the suspended officer has completed the first three months. Under FR 53 it is obligatory to take such action before the expiry of the first three months.
11. Speedy investigation into cases in which an officer is under suspensionxii
11.1 To avoid unduly long suspension, investigation into cases of officers under suspension should be given high priority and every effort should be made to file the charge sheet in the court of competent jurisdiction in cases of prosecution or serve the charge sheet on the officers in cases of departmental proceedings within three months of the date of suspension and in cases in which it may not be possible to do so, the disciplinary authority should report the matter to the next higher authority explaining the reasons for delay (O.M.No.39/39/70-Estt.(A) dated 4/2/1971). In cases which are taken up by, or are entrusted to the CBI for investigation, the limit of 3 months will be reckoned from the date on which the case is taken up for investigation by the CBI.
11.2 If investigation is likely to take more time, it should be considered whether it is still necessary, taking the circumstances of the case into account, to keep the officer under suspension or should the order to be revoked and if so whether the officer could be permitted to resume duty on the same post or transferred to another post or office.
11.3 When an officer is suspended either at the request of the Central Bureau of Investigation or on the Department’s own initiative in regard to a matter which is under investigation or inquiry by the CBI or which is proposed to be referred to CBI, a copy of the suspension order should be sent to the Director, CBI with an endorsement thereof to the Special Police Establishment Branch concerned. To reduce the time-lag between the placing of an officer under suspension and the reference of the case to the CBI for investigation such cases should be referred to the CBI promptly after suspension orders are passed if it is not possible to refer them before the passing of suspension orders.xiii
11.4 Instructions contained in above paragraphs aim at reducing the time taken in investigation into cases of officers under suspension and speeding up the progress of cases at the investigation stage. They do not in any way abridge the inherent powers of the disciplinary authority in regard to review of cases of government servants under suspension at any time either during investigation or thereafter. The disciplinary authority may review periodically the cases of suspension in which charge sheets have been serviced/filed to see:
a) Whether the period of suspension is prolonged for reasons directly attributable to the Government servant;
b) What steps could be taken to expedite the progress of court trial/departmental proceedings;
c) Whether the continued suspension of the officer is necessary having regard to the circumstances of the case at any particular stage; and
d) Whether having regard to the guidelines stated in paragraph 2 regarding the circumstances in which a Government servant may be placed under suspension, the suspension may be revoked and the Government servant concerned permitted to resume duty at the same station or at a different station.
In cases of suspension being revoked and the Government servant allowed to resume duty, an order regarding the pay and allowances to be paid for the period of suspension from duty and whether or not the said order shall be treated as a period spent on duty can be made only after the conclusion of the proceedings against him.
12. Reasons for suspension to be communicatedxiv.
12.1 A government servant placed under suspension has a right of appeal under Rule 23(i). This would imply that he/she should generally know the reasons leading to his/her suspension. In cases when a Government servant is suspended because a disciplinary case is pending or a case against him in respect of any criminal offence is under investigation, inquiry or trial, the order of suspension would itself mention the reasons and the Government servant would be aware of the reasons leading to his suspension.
12.2 Where a Government Servant is placed under suspension on the ground of “contemplated” disciplinary proceedings, the existing instructions provide that every effort would be made to finalise the charges within three months of the date of suspension. If these instructions are strictly adhered to, a Government servant who is placed under suspension would become aware of the reasons for his suspension without much loss of time. In some cases where it may not be possible for some reason or the other to issue the charge sheet within three months, reasons for suspension should be communicated to the Government servant concerned immediately on the expiry of the aforesaid time-limit prescribed for the issue of charge sheet, so that he may be in position to effectively exercise the right of appeal available to him under Rule 23(1) if he/she so desires. Where the reasons for suspension are communicated on the expiry of a time-limit prescribed for the issue of a charge sheet, the time limit of 45 days for submission of appeal should be counted from the date on which the reasons for suspension are communicated.
12.3 The above procedure will not, however, apply to cases where a Government servant is placed under suspension on the ground that he has engaged himself in activities prejudicial to the interest of the security of the State.
13. Jurisdiction of Election Commission over Government servants deputed for election duties for ordering suspension and recommending disciplinary action.
13.1 One of the issues in Writ Petition© No.606/1993 in the matter of Election Commission V UoI & Others was regarding jurisdiction of Election Commission of India over the Government servants deputed for election duties. The Supreme Court by its order dated 21.09.2000 disposed of the said petition in terms of the settlement between the union of India and Election Commission of India. The said terms of settlement are as under:-
13.2 The disciplinary functions of the Election Commission over officers, staff and police deputed to perform election duties shall extend to:
a) Suspending any officer/official/police personnel for insubordination or dereliction of duty;
b) Substituting any officer/official/police personnel by another such person, and returning the substituted individual to the cadre to which he belongs, with appropriate report on his conduct;
c) Making recommendation to the competent authority, for taking disciplinary action, for any act of insubordination or dereliction of duty, while on election duty. Such recommendation shall be promptly acted upon by the disciplinary authority, and action taken will be communicated to the Election Commission, within a period of 6 months from the date of the Election Commission’s recommendation.
d) The GoI will advise the State Governments that they too should follow the above principles and decisions, since a large number of election officials are under their administrative control.
13.3 The implication of the disposal of the Writ Petition by the Supreme Court in terms of the above settlement is that the Election Commission can suspend any officer/official/police personal working under the Central Government or Public Sector Undertaking or an Autonomous Body fully or substantially financed by the Government for insubordination or dereliction of duty and the Election Commission can also direct substituting any officer/official/police personnel by another person besides making recommendations to the Competent Authority for taking disciplinary action for insubordination or dereliction of duty while engaged in the preparation of electoral rolls or election duty.
13.4 It is not necessary to amend the service rules for exercise of powers of suspension by the Election Commission in this case since these powers are derived from the provisions of section 13CC of the Representation of People Act, 1950 and section 28A of the Representation of People Act 1951 since provisions of these Acts would have overriding effect over the disciplinary rules. However, in case there are any conflicting provisions in an Act governing the disciplinary action, the same are required to be amended suitably in accordance with the terms of settlement given above.xv
Election Commission to be mandatorily consulted if the matter is decided to be closed on reply of the employee.
13.5 It shall be mandatory for the disciplinary authority to consult the Election Commission if the matter is proposed to be closed only on the basis of a written explanation given by the officer concerned to enable the Commission to provide
necessary inputs to the disciplinary authorities before the disciplinary Authorities take a final decisionxvi.
14. Regularisation of the period of suspension:
14.1 Provisions relating to regularization of the period of suspension are contained in Fundamental Rules (FR) 54, 54A and 54 B. Broadly, the provisions are:
(a) When the proceedings do not lead to imposition of any penalty, the entire period of suspension will be treated as duty and the Government Servant will be entitled for full pay and allowances for the above period.
(b) Same will be the position, when at the end of the proceedings, only minor penalty is imposed.
(c) In case of death before conclusion of the proceedings, the period of suspension shall be treated as duty and full pay and allowances shall be paid to the family.
(d) Otherwise, the authority ordering suspension will have to take a view as to whether the suspension was wholly unjustified and decide the issue depending upon the facts and circumstances of the case.
14.2 Where the Govt. servant who was under suspension is fully exonerated in a Departmental proceeding or acquitted by the Court in a Criminal trial, the period of suspension is treated as wholly unjustified. The period is treated as duty for all purposes and he is paid full pay and allowances for the period of suspension less the subsistence allowance already drawn by him.
14.3 Where a major penalty is imposed on the Govt. servant, the period of suspension will be regularised by the competent authority after giving a show cause notice to the Govt. servant and allowing him a maximum time of 60 days to represent. The period of suspension will be regularised as ordered by the competent authority. The Govt. servant shall not be entitled to full pay and allowances for the period. He can be paid any amount less than 100% of his pay but it will not be less than the amount already drawn by him as subsistence allowance.
14.4 FR 54-B(2) provides that the period of suspension may also be treated as leave due and admissible at the request of the Govt. servant. In such a case if the leave salary admissible works out to be less than the amount already paid as subsistence allowance than the excess amount shall have to be recovered.
15. Administrative effects of suspension
(i) Grant of advance for purchase of conveyance shall not be granted to a Govt. servant under suspension. (Rule 200 GFRs)
(ii) Grant of House Building Advance is admissible.
(iii) A suspended Govt. servant can function as a Defence assistant subject to the fulfillment of other conditions.
(iv) Entry card/Identity card should be withdrawn, if issued for entry in the office.
(iii) If death occurs during suspension, the period of suspension will be treated as duty and family will get full pay and allowances for the period less subsistence allowance already drawn.
(vi) Leave :- FR 55 provides that leave may not be granted to a Govt. servant under suspension.
(vii) LTC :- Since no leave can be granted to a Govt. servant under suspension, he cannot avail of LTC for himself. There is, however, no bar to the members of his family availing of LTC.
(viii) Lien :- A Govt. servant under suspension retains his lien during suspension period.
(ix) A suspended Govt. servant should not be asked to mark attendance.
XI. Headquarters of a Govt. servant under suspension:-
The headquarters of a Govt. servant under suspension should normally be assumed to be his last place of duty. However, where an individual under suspension requests for a change of headquarters, the competent authority may change the headquarter if it is satisfied that such a course of action will not put the Government to any expenditure like grant of T. A. etc. or create difficulty in investigations or in processing the departmental proceedings etc.. xvii
XII. Resignation during suspensionxviii:-
When a Govt. servant under suspension submits resignation, the competent authority will consider whether it would be in public interest to accept the resignation. Normally, it would not be accepted except where allegations do not involve moral turpitude or where evidence is not sufficient to prove the charges leading to removal/dismissal or where proceedings are likely to be protracted and it would be cheaper to the exchequer to accept the resignation. In the case of Group C & D employees’ prior approval of Head of the Department will be necessary. Approval of Minister would be needed in the case of Group A & B employees. Where departmental action has been initiated on the advice of CVC/C&AG in the case of Group A & B Gazetted officers, their concurrence should be obtained before submitting the file to Minister for approval.
XIII. Retirement on superannuation:-
On attaining the age of superannuation, a Govt. servant will be retired even if he is placed under suspension. He will not get subsistence allowance but will draw provisional pension under Rule 69 of CCS (Pension) Rules, 1972.
Writing of ACRs by an officer under suspensionxix.
An officer under suspension can write/review ACRs of his subordinate within two months from the date of hs suspension or within one month from the date on which the report was due. But no officer under suspension can write/review ACRs of his subordinates if during major part of writing/review he is under suspension. It is because she shall not have full opportunity to supervise the work of his subordinates.
i‘Investigation’ under the criminal Procedure Code includes all proceedings under the code for collection of evidence. Investigation starts after the F.I.R has been registered. It is a stage before either the inquiry or trial. ‘Inquiry’ includes every inquiry other than ‘trial’. The ‘inquiry’ and ‘trial’ in a criminal case do not go hand in hand.[B.B.Mondal V State, AIR 1974lab.IC(Cal). 606].
ii MHA O.M.No.43/56/64-AVD dated 22.10.1964.
iii Ministry of Home Affairs O.M.o.25/70/49-Estt dt.26/12/1949.
iv DOP&T notification No.11012/4/2003-Estt.(A) dated 2.4.2004 directed that the notification of even number dated 23.12.2003 which inserted sub rule (6) and (7) of Rule 10 shall come into force w.e.f.2.6.2004 v Notification No.11012/4/2003-Estt.(A) dated 6.6.2007 substituted sub-rule 5(a) and (7) of Rule 10 viDOP&T’s O.M.No.11012/4/2003-Estt(A) dated 7.1.2004.Detailed instructions on the review of suspension and also the composition of the review committee in cases when (i) Displinary Authority is President (ii) when Appellate Authority is President and (iii) when Disciplinary Authority is not the President is contained in the said O.M.
vii DOP&T OM NO. 11012/15/85-Estt(A) dated 3.12.1985)
viii To be reproduced at the end of the chapter.
ixDP & AR O.M.No.109/3/80-AVD-I dated 21.7.1980
xi DOP&T O.M.No.11021/17/85-Estt.(A) dated 28.10.85
xiiPage 71 CVC
xiii CVC manual vol-I.
xivDP & AR O.M.No.35014/1/81-Estt.(A) dated 9.11.1982
xv DOP&T O.M.No.11012/7/98-Estt(A) dated 7.11.2000
xviDOP&T’s O.M.No11012(4)/2008-Estt(A) dated 28.7.2008
xviiMHA OM No. 39/5/56-ESTs (A) dated 8.9.1956)
xix DOP&T O.M.No.21011/8/2000-Estt(A) dated 25.10.2000
CHAPTER – 11
MINOR PENALTY PROCEEDINGS
1. What are distinguishing features between Major and Minor Penalties?
The distinction between Major and Minor penalties may be perceived from three angles viz. what, who and how.
Firstly, minor penalties are lighter penalties whereas major penalties are heavier penalties. It is noteworthy, that till the amendment in August 2004, incorporating clause (iii) (a) [reduction to lower stage by one stage without cumulative effect ….] recovery from pay of loss caused was the only penalty wherein the delinquent had to lose money. Otherwise, none of the minor penalties had the effect of taking away any benefit enjoyed by the delinquent. On the contrary, the major penalties result in deprivation of the benefits/position enjoyed by the delinquent such as loss of employment, etc.
Secondly, major penalties could be imposed only by the Appointing Authority whereas authorities subordinate to the Appointing Authority have been designated to impose minor penalties.
Thirdly, major penalties can be imposed only after conducting a detailed oral hearing as provided for under Rule 14 of the CCA Rules, unless conduct of Inquiry has been dispensed with under any of the provisions under the second proviso to Article 311 (2) which has been reproduced in Rule 19 of the CCA Rules. Against this, ordinarily, under normal circumstances, minor penalty can be imposed after issue of memorandum and perusal of the response of the delinquent.
2. What are the extra-ordinary circumstances when even for imposition of minor penalty, a detailed oral hearing is to be conducted?
The circumstances when detailed oral hearing is held for imposition of minor penalty fall under two broad categories viz. optional and obligatory.
(a) Rule 16(1)(b) of the CCA Rules provide that even for imposing a minor penalty, detailed oral hearing as provided for in Rule 14(3) to 14(23) of the CCA Rules may be held in every case in which the Disciplinary authority is of the opinion that it is necessary. Disciplinary authority’s decision to conduct detailed oral hearing may be either suo mottu or based on the request of the delinquent. Generally, where either of the parties may rely on oral evidence, it would be necessary to conduct oral hearing. If the evidence is purely documentary in nature, there may not be any need for conducting detailed oral hearing unless the case is covered by the provisions relating to obligatory conditions as explained hereunder.
(b) As per sub Rule (1-A) of Rule 16 of the CCA Rules it is mandatory to conduct detailed oral hearing provided for in Rule 14(3) to 14(23) of the CCA Rules, if it is proposed, after considering the representation of the delinquent employee if:
(i) it is proposed to impose the penalty of withholding of increments of pay and the same is likely to affect the amount of pension payable to the delinquent employee; or
(ii) it is proposed to impose the penalty of withholding of increments of pay for a period exceeding three years; or
(iii) it is proposed to impose the penalty of withholding of increments of pay with cumulative effect for any period.
3. Does not the imposition of penalty without oral hearing amount to denial of reasonable opportunity or violation of the principles of natural justice?
State of Punjab Vs. Nirmal Singh [JT2007(10)SC31, (2007)8SCC108] is a case based on Punjab Civil Services (Punishment & Appeal) Rules 1970. In this case, the individual had challenged the award of minor penalty without providing him personal hearing. Rejecting his submission, the Hon’ble Supreme Court held that
“6. Rule 21 of the Punjab Civil Service (Punishment & Appeal) Rules, 1970 deals with the review. A perusal of the aforesaid rule shows that there is no provision of personal hearing in regard to inflicting minor penalties. The Rule contemplates a personal hearing only when the Disciplinary Authority proposes to impose any of the major penalties specified in Clauses (v) to (ix) of Rule 5 or to enhance the penalty imposed by the order sought to be reviewed to any of the penalties specified in those clauses. Admittedly, by an order dated 20.10.2003, the respondent was inflicted punishment of stoppage of two increments with cumulative effect, which is a minor punishment. The High Court, in our view, was clearly in error in setting aside the order dated 24.6.2004 passed by the Competent Authority on the ground of violation of principles of natural justice.”
[it needs to be noted that in Rule 10 of the Punjab Civil Service (Punishment & Appeal) Rules 1970, dealing with the Procedure for imposing minor penalty, provision corresponding to sub-rule (1-A) of Rule 16 of CCA Rules was not available. Therefore, detailed oral hearing was not mandatory, even for withholding of increment with cumulative effect.]
4. What is the advantage of taking recourse to minor penalty proceedings?
Minor penalty proceedings can be concluded with minimum loss of time. In most of the cases, final order in a minor penalty proceedings could be passed in less than four weeks of framing of charges, unless consultation with UPSC is necessary. As rightly observed by the Hota Committee, “a minor penalty swiftly but judiciously
imposed by a Disciplinary Authority is much more effective than a major penalty imposed after years spent on a protracted Inquiry.”
5. What is the procedure for imposing minor penalty?
The following are the steps involved in imposition of minor penalty:
(a) A memorandum is issued together with a statement of imputations of misconduct or misbehavior.
(b) Any documentary evidence in support of the charge may have to be annexed to the charge memorandum or made available to the delinquent official.
(c) The delinquent official may be allowed time up to 10 days for submitting reply.
(d) Any request for extension of time may be considered objectively subject to conditions of reasonableness
(e) Any request for inspection of records or copies of documents may be allowed if its denial will amount to denial of reasonable opportunity
(f) On examination of the reply of the charged officer, or on expiry of the time allowed for submitting reply, a reasoned order may be passed
6. Can minor penalty be imposed on conclusion of proceedings for imposition of a major penalty?
There is no objection to impose minor penalty on conclusion of the proceedings under Rule 14 of CCA Rules for imposition of major penalty, if the disciplinary authority feels that minor penalty is adequate to meet the ends of justice
7. Can an authority competent to impose major penalty initiate and conduct minor penalty proceedings?
There is no embargo for a higher disciplinary authority to initiate and conduct minor penalty proceedings. However, such circumstances should not lead to raising of eyebrows.
8. If the authority competent to impose major penalty had initiated and conducted major penalty proceedings, can such authority impose minor penalty or it will have to direct the lower disciplinary authority to impose minor penalty.
MHA OM No. 6/26/60-Ests.(A) dated 18 June 1962 provides that where a disciplinary proceedings for imposition of major penalty has been initiated by a higher disciplinary authority, final orders should also be passed by such authority only and the case should not be remitted to the lower disciplinary authority.
As a natural corollary, appeal should be dealt with by the next higher authority
CHAPTER – 12
DRAFTING AND ISSUE OF CHARGE SHEET
1. What is a charge?
Para 14.2 of Chapter X of the Vigilance Manual (Fifth Edition 1991) provides as under:
A charge may be described as the prima-facie proven essence of an allegation setting out the nature of the accusation in general terms, such as, negligence in the performance of official duties, inefficiency, acceptance of sub-standard work, false measurement of work executed, execution of work below specification, breach of a conduct rule, etc. a charge should briefly, clearly and precisely identify the misconduct/misbehavior. It should also give time, place and persons or things involved so that the public servant concerned has clear notice of his involvement.
A charge is essentially an omission or a commission. It articulates that the charged official has committed something which should not have been done or has failed to do something which he ought to have done.
2. What is the significance of issue of charge sheet?
Issue of charge sheet is the discharge of the Constitutional obligation cast by Article 311(2) which states “No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity…’
It is also the compliance of the principle of natural justice which states – “No one can be condemned unheard” which has been codified in the constitutional provisions under Article 311(2).
3. Who is to decide about the issue of charge sheet?
Disciplinary Authority, who takes cognizance of the misconduct, is the appropriate authority to decide as to whether formal disciplinary proceedings are to be initiated against the government servant or warning or counseling is to be administered.
In cases where a preliminary investigation has been conducted, the disciplinary authority may take a decision based on the preliminary investigation report.
In the cases falling within the purview of the Vigilance Commission, first stage advice of the Commission is also taken into consideration when the above decision is taken.
4. Can the authority who is competent only to impose minor penalty, initiate proceedings for imposition of major penalty?
Yes. Rule 13 (2) of the CCA Rules provides that an authority who is competent only to impose minor penalties can institute proceedings for imposition of major penalties also.
Government of India Department of Telecom Letter No. 68/7/89-Vig.II dated 28 Jul 1987 further provides that if at the end of the proceedings, the above authority reaches the conclusion that imposition of minor penalty will make the ends of justice meet, such authority may impose the penalty without referring the case to the higher authority who is competent to impose major penalty.
Needless to add that if at the end of the proceedings, it is felt that major penalty is to be imposed, the case will be submitted to the authority who is competent to impose major penalty.
5. At what level the decision to initiate the proceedings is taken in respect of the cases wherein the President is the Disciplinary Authority?
As clarified in Ministry of Home Affairs Memo No. F/30/1/6-Ests(A) dated 16 Apr 1969, having regard to the Transaction of Business Rules, decision in such cases are to be taken by the Minister concerned.
6. Can proceedings under CCA Rules be initiated when a criminal case is in progress?
There is no hard and fast rule in this regard. Every case needs to be decided on its own merits. If the criminal case is about a misconduct relating to employment such as acceptance of illegal gratification, corruption, etc. there might not be any bar on initiating departmental proceedings pending criminal prosecution. When the criminal case is complex in nature and involves questions of fact and law, it may not be capable of being handled departmentally. However, there is no bar on simultaneous departmental proceedings.
Normally the employee concerned would object to the departmental proceedings on the plea that by participating in the departmental proceedings, the delinquent would be compelled to disclose his/her defence in advance and the same would seriously prejudice defence in the criminal case. Consequences of staying the departmental proceedings are too well known to need any recapitulation. The reason cited by the delinquent cannot be accepted as a blanket sanction for stay of departmental proceedings as stated in State of Rajasthan v. B.K. Meena and Ors. [(1997)ILLJ746SC] in the following terms:
“The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceedings is that “the defence of the employee in the criminal case may not be prejudiced”. This ground has, however, been hedged in by providing further that this may be