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Departmental Inquiry

Principles of N a t u r a l J u s t i c e
Vesting of adjudicatory functions in persons, bodies or institutions
Normally adjudication of disputes and determination of rights of parties fell within the exclusive jurisdiction of courts. However, because of the tremendous increase of legislations including subordinate legislations, which by itself provide for complete administrative machinery for adjudication of disputes, the tendency of vesting adjudicatory functions in persons, bodies or institutions became increasingly pronounced with the passage of time. Another reason, which has weighed in favour of conferring on persons, bodies or institutions the power of adjudication, is the increased workload of courts, which they are not in position to cope with in spite of some expansion. Thirdly, the issues involved in such matters may not be purely legal ones and may not require the legal skills of judicial bodies for adjudication and decision. As these enactments by itself provide machinery for redressal of grievance or settlement of disputes, they generally oust the jurisdiction of courts to entertain complaints or causes, which are covered under the enactments. However, if adequate and effective machinery for redressal of administrative wrongs is not provided in the enactments, the courts may have jurisdiction to hear and redress those wrongs.

Different procedures
The procedure that is adopted by courts in adjudicating disputes and deciding the rights of parties is well known. A court is bound by all the rules of evidence and has to decide questions objectively based on evidence and materials produced before it. It is also bound by precedents, principles of res-judicata and estoppel etc. Two Codes, Code of Civil Procedure and Code of Criminal Procedure are available to regulate the business of courts. A court of law is also competent to decide the vires of an enactment. However, the persons, bodies or institutions vested with adjudicatory powers by statutes or legislations or rules [such as an Industrial Tribunal under the Industrial Disputes Act, a Commissioner for Workmen Compensation under the Workmens Compensation Act, an Authority under the Payment of Wages Act, an Income Tax Officer under the Income Tax Act, or a Disciplinary, Inquiry or Appellate Authority under CCS (CCA) Rules] cannot be equated with courts, nor can they be qualified as judicial authorities. They are better known as special

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tribunals or quasi-judicial authorities. However, the courts and these authorities have similarities in some respects, both the courts and the authorities are adjudicatory bodies and they exercise judicial functions. In other words, the special tribunals or the quasi-judicial authorities have some trappings of a court, but not all. A quasi-judicial authority is not bound by the rules of evidence, but is bound by the principles of natural justice. The essence of these principles can be told in the following words. Those whose duty is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a quasi-judicial authority whose duty is to mete out justice.

Principles of Natural Justice


The expression Natural Justice lacks precision in its meaning. The connotation of expression differed in different context. Justice is substantially based on natural ideals and human values. Right from the days of Adam and Eve, some principles are followed in the administration of justice. Later, some of these principles came to be embodied in some Latin maxims and the doctrine, as we understand today, arose from these maxims. The most important two of these principles are: Nemo debet esse judex in propria causa, which means that no one shall be a judge in his own case or that the tribunal or the quasijudicial authority which adjudicates the dispute must be impartial and without bias. Audi alteram partem, which means that both the sides must be heard in a case before it is decided, or that no one shall be condemned unheard. These two fundamental maxims of natural justice have now become deeply and indelibly ingrained in the common consciousness of mankind as pre-eminently necessary to ensure that the Law is applied impartially, objectively and fairly, said the Supreme Court in Swadeshi Cotton Mills Co. Ltd. v. Union of India. These principles constitute the essence of justice and must therefore be observed by any person or body charged with the duty of deciding the rights of parties, which involve the duty to act judicially. However, there is no universal or uniform standard of natural justice applicable to all cases coming within the purview of the doctrine. The contents or requirements of natural justice will vary with the varying constitution of different quasi-judicial bodies and their functions, the

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subject matter of enquiry, the relevant statutory provisions etc. However, the broad principles underlying these maxims are to be observed by every quasi-judicial authority.

Aim of rules of natural justice


The aim of rules of natural justice is to prevent any statutory authority from going berserk, so to say, and to serve as a healthy check on the abuse or misuse of power and to ensure that the law is applied impartially, objectively and fairly. In the well known case of A.K. Kraipak v. Union of India, the Honourable Supreme Court held as under: The aim of the rules of natural justice is to secure justice or to put it negatively to prevent the miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words, they do not supplant the law but supplement it. The concept of natural justice has undergone a great deal of change in the recent years. In the past, it was thought that it included two rules namely (1) No one shall be a judge in his own case (Nemo debet esse judex in propria causa) and (2) No decision shall be given against a party without affording him a reasonable hearing (audi alteram partem). Very soon thereafter a third rule was envisaged and that is that the quasi-judicial inquiries must be held in good faith without bias and not arbitrarily or unreasonably. But in the course of years many more rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially, there was no room for the application of rules of natural justice. The validity of that limitation is now questioned.

Principles of natural justice and Article 14


Article 14 strikes at arbitrariness in state action. As per this Article, no person shall be subjected to harsh or uncivilized or discriminatory treatment and all decisions must be made by application of known principles of law. In short, what is envisaged under Article 14 is the rule of law. In Union of India v. Tulsiram Patel, the Honourable Supreme Court held as follows: The Principles of natural justice have thus come to be recognized as being a part of the guarantee contained in Article 14 because of the new and dynamic interpretation given by this Court to the concept of equality

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which is the subject matter of that Article. Shortly put, the syllogism runs thus: violation of a rule of natural justice results in arbitrariness which is the same as discrimination; where discrimination is the result of State action, it is a violation of Article 14; therefore, a violation of principle of natural justice is a violation of Article 14 In Satyavir Singh v. Union of India, the court elaborated the nexus between Article 14 and the Principles of Natural Justice as under: The Principles of natural justice are not the creation of Article 14 of the Constitution. Article 14 is not the begetter of the principles of natural justice but is their constitutional guardianIt is now fairly established by a catena of authorities that the legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule. There, however, may be exceptional cases where a public interest may be of such an imperative nature either by reason of a sudden and unforeseen emergency coming into existence or because of some other pressing exigency of the State, which may weigh against such an opportunity being granted. Of course, opportunity of being heard need not necessarily mean an oral hearing in person or by a lawyer.

Not embodied rules


The Supreme Court observed that the rules of natural justice are not embodied rules. 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 frame work of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Natural justice cannot be placed in a straitjacket; its rules vary from case to case. All that has to be seen is that no adverse civil consequences are allowed to ensue before one is put on notice that the consequences would follow if he would not take care of the lapse, because of which the particular action as made known is contemplated. No particular form of notice is the demand of law. Although natural justice does not fall within those definite and well recognized rules of law which courts enforce or must enforce, it is beyond doubt that there are certain canons of judicial conduct to which quasijudicial decisions ought to conform. The principles on which they rest are implicit in the rule of law. Courts insist upon this conformity, no matter whether it is achieved through the constitutional concept of due process or through ethico legal device of natural justice.

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The points to be noted from the Apex Courts observations quoted in the above paragraphs are:
(1)

Rules of natural justice operate only in areas not covered by any law validly made, Apart from the two main rules, many more rules came to be added to the rules of natural justice, The principles may apply to cases or matters even where the deciding authorities are not required by the law to act judicially, Violation of principles of natural justice is a violation of Article 14 of the Constitution, Natural justice cannot be placed in a straitjacket; its rules vary from case to case, and The legislation and the necessities of a situation can exclude the principles of natural justice including the audi alteram partem rule.

(2)

(3)

(4)

(5)

(6)

No one shall be a judge in his own case-what does it mean?


The rule of Nemo debet esse judex in propria causa is of wide application. It means that a judicial or quasi-judicial authority should not be party in the subject matter of the dispute which he has to decide. Not only that he should not be a party, but also that he should not be interested as a party in that subject matter. If a quasi-judicial authority has some interest in the subject matter of dispute and if he sits as the inquiring or deciding authority over that subject matter, the inquiry or the decision, as the case may be, is vitiated. The rule is commonly expressed as saying that a judicial or quasi-judicial authority must be free from bias. As is well known and settled by courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature. One or more of the Quasi-judicial authorities such as Disciplinary Authority, Inquiring Authority, Appellate Authority and Reviewing Authority may have some role to play in these proceedings. CCS (CCA) Rules and Government decisions thereon provide that these authorities cannot discharge their respective quasi-judicial functions if they are personally concerned with the charges or are material witness in support of the

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charges. In a case where the prescribed appointing or disciplinary authority is unable to function as the disciplinary authority in respect of an official, on account of his being personally concerned with the charges or being a material witness in support of the charges, the proper course for that authority is to refer such a case to Government in the normal manner for nomination of an ad hoc disciplinary authority The judicial or quasi-judicial authority hearing or deciding the issue must be free from bias. Bias may be defined as a preconceived opinion or a predisposition or predetermination to decide a case or an issue in particular manner, so much, so that such predisposition does not leave the mind open to conviction. It is, in fact, a condition of mind, which sways judgments and renders the judge unable to exercise impartially in a particular case. The decision rendered by a biased authority cannot be a fair decision. It is due to this reason the Government of Indias orders on appointment of inquiry officers in departmental inquires emphasize that it is obviously desirable that only disinterested officers should be appointed as inquiry officers in departmental proceedings. There is no bar to the immediate superior officer holding an inquiry but as a rule, the person who undertakes this task should not be suspected of any bias in such cases. The authorities concerned should bear this in mind before an Inquiry Officer is appointed in a disciplinary case. It is clear from this O.M. that the person appointed as Inquiry Officer should not only be unbiased, but also that he should not be suspected of any bias. . It is worth remembering an old saying in this context -Judges, like Caesars wife, should be above suspicion. When the Cauvery Water dispute, in which states viz. Tamil Nadu, Karnataka, Andhra Pradesh and Kerala were parties, came up before the Supreme Court, a bench to hear and decide the dispute was constituted by the Chief Justice. The bench constituted by the Chief Justice included a Judge whose home state was Kerala. This judge promptly wrote to the Chief Justice to exclude him from the bench and to nominate in his place another judge from any of non-litigating states. If this judge had not withdrawn from the bench, there could have been allegation or suspicion of bias as he hailed from a state, which was one of the parties to the litigation. Another example is that of a Bombay High Court judge who was asked to hear the case relating to a smuggler. As soon as the case was assigned to him, there were reports in a section of the media that he had accepted some gratis from the smuggler at some time. The judge immediately wrote to the Chief Justice to transfer the smugglers case to another bench. It was immaterial whether the judge had really accepted gratis from the

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smuggler or whether the media report was false or otherwise. However, some suspicion on the judges ability to hear the case with an open mind was created and hence he withdrew from hearing and deciding the case. In both the above examples, it could have been possible for the judges to do justice. However, it is not enough to do justice. It should manifestly and undoubtedly be seen by others that justice has been done. It is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.

Hear the other side


A person affected by a decision has a right to be heard. It is unjust to reach a decision without a full hearing. Authorities, which are by law invested with the power to affect the property of a person (employee) or to deprive a person of his profession, business or calling, are bound to give such person(s) an opportunity of being heard before it proceeds, and this rule is of universal application. Article 311 (2) of the constitution of India gives a mandate to this principle of natural justice by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. Rule 14 (1) of CCS (CCA) Rules also requires that no order imposing any of the major penalties shall be made except after holding an inquiry. Rule 16-1A also requires holding of inquiry in certain cases.

Opportunity of hearing
The opportunity of hearing includes many components such as:

Opportunity to deny the charges and to establish innocence The delinquent must be given reasonable time and opportunity of meeting the allegations contained in the charge sheet. Opportunity to defend himself by examining witnesses (including himself, if he so desires) and cross-examining the witnesses produced against him. The prosecution witnesses must be examined in the presence of the delinquent, so that he may hear their evidence in support of the charge and cross-examine them before he is called upon to enter his defence.

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The opportunity to cross-examine the prosecution witnesses must be effective.

Denial of Natural Justice


Natural Justice is denied

Where adequate notice regarding charges etc. is not givenadequacy of notice being variable according to nature of the proceedings Where the charges are vague and no materials are disclosed to explain them Where the delinquent is not allowed to call or examine material defence witnesses, or to examine himself Where the delinquent is denied the assistance of a defence helper Where the authority acts upon information collected behind the back of the delinquent employee Where the copy of the inquiry report is not supplied to the delinquent and this non-supply has caused some prejudices to the delinquent Where the authority inflicts penalty on extraneous consideration

What amount of hearing?


We have seen that Article 311 (2) of the constitution of India gives a mandate to the audi alteram partem rule. Article 311 (2) provides that a civil servant shall not be dismissed or removed from service or reduced in rank except after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. However, 2nd proviso to this Article mandates that the clause regarding informing the civil servant of the charges against him and giving him a reasonable opportunity of being heard in respect of those charges shall not apply(a) Where any of the above three penalties is imposed on him on the ground of conduct which has led to his conviction on a criminal charge; or Where the authority empowered to dismiss or remove him or to reduced him in rank is satisfied for the reason to be

(b)

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recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or 1 (c) Where the President, or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.

In other words, as per proviso to Article 311 (2) of the Constitution no hearing shall be afforded in these three types of cases or situations. Thus, the rule of audi alteram partem is dispensed with by the Constitution itself 2 in these three types of cases or situations and they come to be the examples of types of cases of nil hearing. However, as per proviso to Rule 19 of CCS (CCA) Rules, the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made in a case under clause (a) above, i.e. where the penalty is proposed to be imposed on the ground of conduct which has led to his conviction on a criminal charge. This is an example for cases where a minimum amount of hearing is given. The types of cases covered under (b) and (c) above do not have even the opportunity of representing against the (quantum of) penalty, i.e. even the opportunity of minimum hearing. Article 311 (2) mandates informing the civil servant of the charges against him and giving him a reasonable opportunity of being heard in respect of those charges where any of the three penalties viz. dismissal, removal or reduction in rank is to be imposed on the Government servant. What about the opportunity that is to be given when the penalty to be imposed is other than any of these three? [It may be remembered that ten penalties are listed under Rule 11 of CCS (CCA) Rules, out of which five are under minor category and the remaining, are under major category]. To find out the extent of hearing that is to be given in these cases or to find out how

It is not necessary that a situation which the makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a Government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance, after the service of the charge sheet upon the Government servant or after he has filed his written statement thereto or even after the evidence has been led in part. In such a case also, the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word inquiry in that clause includes part of an inquiry-thus observed the Supreme Court in Union of India v. Tulsiram Patel, AIR 1985 SC 1416. It is in the nature of a Constitutional prohibitory injunction restraining the disciplinary authority from holding an inquiry under Art. 311 (2) or from giving any kind of opportunity to the concerned Govt. servant. (Union of India v. Tulsiram Patel, AIR 1985 SC 1416, para 70)
2

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far the rule of audi alteram partem applies in these cases, we have to advert mainly to Rules 14, 16 (1) and 16 (1-A). As per Rule 14 (1) of CCS (CCA) Rules No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. The penalties specified in clauses (v) to (ix) of Rule 11 are major penalties and these penalties include dismissal, removal and reduction in rank. The stages of hearing to be given under this rule includes (a) drawing up of charges in detail, (b) informing the delinquent of the charges, (c) giving reasonable time to the delinquent for replying to the charges, (d) holding of inquiry where and in respect of the charges that are not admitted, (e) permitting the delinquent to take the help of any Government servant/retired Govt. servant or legal practitioner for his defence, (f) giving opportunity to both the sides for production of oral and documentary evidence, (g) examination and cross examination of witnesses, (h) submission of brief and so on. In other words, the hearing to be given is adequately reasonable and wide enough and is in conformity with audi alteram partem rule of natural justice. However, the hearing to be provided under Rule 16 (1) of CCS (CCA) Rules, that is before any of the minor penalties is imposed 3 , is not so wide as under Rule 14. Rule 16 (1) does not mandate holding of inquiry. Inquiry may be held or may not be held, depending upon the facts and circumstances of the case and as decided by the disciplinary authority. However, the procedure calls for issue of charge sheet and giving of reasonable opportunity to the delinquent to reply to the charges. An exception is made to the above procedure in Rule 16 (1-A). This provision mandates that if any of the three penalties mentioned therein is to be imposed, an inquiry shall be held in the manner laid down in subrules (3) to (23) of Rule 14, before imposing any such penalty. Thus, we have different kinds of hearing prescribed by different statutes or by different provisions of same statute. Therefore, what hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence

with the exception of penalties mentioned in Rule 16 (1-A)

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or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent. However, the audi alteram partem rule cannot be sacrificed at the altar of administrative convenience or celerity, for convenience and justice are often not on speaking terms.

Whether rules of natural justice apply to administrative decisions?


A noteworthy case law on this point is Maneka Gandhi v. Union of India. It was held by Honourable Supreme Court in this case that since the idea of natural justice is fair play in action, it has to apply to both judicial/quasijudicial and administrative actions. To put it differently, opportunity of some kind of hearing is to be afforded to the affected person before he is visited with adverse action. In A.K. Kraipaks case, the Supreme Court observed that if the purpose of these rules of natural justice is to prevent miscarriage of justice, one fails to see why those rules should be made inapplicable to administrative enquiries. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far-reaching effect than a decision in a quasi-judicial enquiry. In Mohinder Singh Gill v. Election Commissioner of India, the Apex court said, subject to certain necessary limitations, natural justice is now a fooding omnipresence, although varying in its play. Its essence is good conscience in a given situation, nothing more-but nothing less. If an action or order entails forfeiture past service or forfeiture or loss of pay or allowances or seniority or postponement of chances of promotion or if it casts a stigma on the employee affecting his future career, the action or order may be said to be having penal consequences. In such circumstances, the action or order entailing penal consequences cannot be said to be an administrative action or order; on the contrary, it would amount to imposing a penalty. When it amounts to imposing a penalty, certain amount of hearing should precede imposition of such a penalty. For example, break in service is an action, which is penal in nature as it results in forfeiture of past service. An order of forfeiture of past service cannot be made without observing the principles of natural justice. Another example is downward revision of subsistence allowance. It has been held that downward revision of subsistence allowance is not permissible without giving opportunity of representation to the suspended

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employee. A decision, which affects right of parties, requires predecisional hearing. Recovery of overpayment, held on facts of the case, could not be effected without giving opportunity of hearing. The Tribunal explained further: A system governed by rule of law reckons no decisions without an adjudication. Executive authorities cannot approximate themselves to oracles, or arrogate to them to ordinances. This is a basic requirement of natural justice, which has always been a part of adjudicatory process. The position can be summed up in the following words of the Supreme Court as expressed in Kesthav Mills Co. Ltd. v. Union of India, It is too late now to contend that the principles of natural justice need not apply to administrative orders or proceedingswhere administrative officers are concerned, the duty is not so much to act judicially as to act fairly.

Nemo debet bis vexari


The above maxim means that a man must not be put twice in peril for the same offence. He can plead as a complete defence his former acquittal or conviction. This rule of natural justice is embodied in Article 20 (2). The Article guarantees immunity against prosecution and punishment for the same offence for a second time. This principle is extended to departmental proceedings also. In K.R. Deb v. Collector of Central Excise, the Supreme Court held that the Government had no power to set aside an enquiry and order another enquiry in its place. In other words, the Government, after setting aside the previous enquiry, can order no fresh enquiry as ordering of a fresh enquiry after setting aside the previous enquiry would amount to double vexation. However, there is an exception to the above position. We may however make it clear that no Government servant can urge that if for some technical or other ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. The earlier order was quashed on the technical grounds. On merits, a second enquiry can be held".

Whether mere compliance with written rules will ensure compliance with the rules of natural justice?
Departmental proceedings are distinct from judicial/criminal proceedings and hence strict rules of evidence are not applicable to departmental inquiries. Though the Evidence Act itself is not applicable, essential principles of fair play envisaged in the Evidence Act are applicable. CCS

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(CCA) Rules provides for different types of hearing depending upon the nature and circumstances of the case. The procedure laid down is elaborate for enquiry under Rule 14 of the Rules, i.e. for imposing any of the major penalties. Mere following of the Rules or procedure might not ensure compliance with the principles of natural justice in toto. For example, sub-rule 19 of Rule 14 does not expressly provide for giving copy of the brief of the presenting officer to the accused before the accused is asked to submit his brief. However, the Calcutta High Court in a case held that the requirements of Rule 14 (19) and the principles of natural justice demand that the delinquent officer should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief. Subsequently, Government of India have decided that it will be but fair that the Inquiry Officer should first take the brief from the Presenting Officer, supply a copy of the same to the delinquent Government servant and take the reply brief from the delinquent Government servant. Prior to the decision of the Supreme Court in Managing Director, ECIL v. B. Karunakar, there was no provision in Rule 15 of CCS (CCA) Rules to forward copy of the Inquiry report to the delinquent and seek his representation on the same, before the disciplinary authority records his findings on the charges levelled against the delinquent Government servant. The Court in the said case held as under: It should thus be concluded that the supply of copy of the enquiry report is an integral part of the penultimate stage of the inquiry before the disciplinary authority considers the material and the report on the proof of the charge and the nature of the punishment to be imposed. Non-compliance is denial of reasonable opportunity, violating Article 311 (2) and unfair, unjust and illegal procedure offending Article 14 and 21 of the Constitution and the principles of natural justice. The Rule, thereafter, was suitably amended. Similarly, there is no express provision in the CCS (CCA) Rules to grant personal hearing to the appellant by the appellate authority at the appellate stage. However, in Ram Chander v. Union of India, the Supreme Court held that the appellate authority must give a hearing to the Government servant concerned and pass a reasoned order. Dept. of Per. & Trg. O.M states that "as Rule 27 of the CCS (CCA) Rules does not preclude the grant of personal hearing in suitable cases, it has been decided that where the appeal is against an order imposing a major

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penalty and the appellant makes a specific request for a personal hearing, the appellate authority may after considering all relevant circumstances of the case, allow the appellant, at its discretion, the personal hearing." Conclusion The principles of natural justice are not incorporated as fundamental rights guaranteed by the Constitution and therefore these principles as such do not have constitutional status. However, certain Articles of the Constitution [like Article 14 and Article 311 (2)] take care of these principles. If the law enacted violates the principles of natural justice, the law would still be enforced. In other words, principles of natural justice can not replace or override the law, it can only supplement the law. As per second proviso to Article 311 (2) and as per Rule 19 of CCS (CCA) Rules, the audi alteram partem rule having been excluded, it cannot be introduced through backdoor to provide a hearing. If the law is silent as to the procedure to be followed in deciding the rights of parties, then opportunity for certain amount of hearing will have to be given, the amount being variable depending upon many factors.

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Initiation of disciplinary proceedings


The tragedy of public service, at times is loss of the sense of discipline and character.

Meaning and characteristics of disciplinary proceedings


isciplinary proceedings can be explained as the proceedings taken with a view to imposing a departmental punishment on an employee on account of some alleged misconduct. These proceedings are a matter of discipline within the organization. Disciplinary proceedings are in the nature of quasi-judicial proceedings. Quasi-judicial proceedings mean proceedings, which are not exactly judicial, but may be administrative proceedings having judicial trappings. In other words, though the authority competent to decide is not a court of law, the authority is bound to act judicially by statute. These proceedings are civil proceedings to which principles of natural justice are applicable. Disciplinary Proceedings in Central Govt. Departmental Organizations such as Ordnance Factories are governed by Central Civil Services (Classification, Control and Appeal Rules), 1965.

Who can institute disciplinary proceedings?


The President or any other authority empowered by him by general or special order may institute disciplinary proceedings against any Govt. servant, or may direct a disciplinary authority to institute disciplinary proceedings against any Govt. servant on whom that disciplinary authority is competent to impose under CCS (CCA) Rules any of the penalties specified in Rule 11.

Penalties specified under the Rules


There are ten penalties, which are specified under Rule 11 of CCS (CCA) Rules, of which penalties from (i) to (iv) are under minor category and (v) to (ix) are under major category. The penalties under minor category are: (i) censure, (ii) withholding of promotion, (iii) recovery from pay of the whole or part of any pecuniary loss caused by the Govt. servant to the Government by negligence or breach of orders, (iii) (a) reduction to a lower stage in the time scale of pay for a period not exceeding 3 years,

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without cumulative effect and not adversely affecting his pension, and (iv) withholding of increments of pay. The major penalties are: (v) save as provided for in clause (iii) (a), reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of reduction and whether on expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay, (vi) reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Govt. servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Govt. servant was reduced and his seniority and pay on such restoration to that grade, post or Service, (vii) compulsory retirement, (viii) removal from service which shall not be a disqualification for future employment under the Government, and (ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government.

Disciplinary Authority-meaning
The term Disciplinary Authority has been interpreted in the Rules to mean the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11. The disciplinary authorities for various categories of employees (including those of Ordnance Factories) are specified in the schedule to the Rules. As per the interpretation quoted above, there can be different disciplinary authorities for minor and major penalties or even for a particular penalty. However, none of the major penalties can be imposed on a Govt. servant by an authority subordinate to the appointing authority in respect of that Govt. servant.

Protection under Article 311


There is also the Constitutional protection guaranteed under Article 311 (1) which enjoins that No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. But imposition of penalties and institution of disciplinary proceedings are different matters. As per sub-rule (2) of Rule 13 of CCS (CCA) Rules, a disciplinary authority, which is competent to impose only any of the minor penalties,

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may institute disciplinary proceedings for the imposition of any of the major penalties.

Ad-hoc disciplinary Authority


A person who is witness to an incident on the basis of which disciplinary proceedings are proposed to be taken or if he himself is involved in the incident or is the complainant cannot exercise the powers of disciplinary authority. The principle of no man shall be a judge in his own case is attracted in such cases. A person cannot be expected to take an objective decision in which he has an interest. Where the officer who is the prescribed disciplinary authority is/will be the complainant and/or the witness in a disciplinary proceeding, another officer should be specified as disciplinary authority by a special order of the President under Rule 12 (2) of 1965 Rules. Some of the charges based on personal knowledge of the disciplinary authority-held, enquiry vitiated-further held, it was incumbent on such authority to move the Government to appoint another ad-hoc disciplinary authority. However, the ad-hoc disciplinary authority cannot be lower in rank than the original disciplinary authority.

Officers performing current duties of a post- whether can exercise statutory powers?
Power to institute disciplinary proceedings and to punish a Govt. servant is a statutory power, which has to be exercised by that authority to which power has been given by the statute. An officer appointed to perform the current duties of an appointment cannot exercise statutory powers, whether these powers are derived direct from an act of Parliament or from Rules like CCS (CCA) Rules. An Officer-in-Charge holding charge of an Ordnance Factory (when the General Manager is away) cannot initiate or finalize disciplinary action against an employee whose appointing/ disciplinary authority is the General Manager. 4
4

The General Manager of an Ordnance Factory was promoted and posted as Member, OFB. Another officer was asked to function as Officer-in-Charge of that factory. Thereafter, clarifications were sought from OFB on the following points. (1) (2) (3) Whether the Officer-in-Charge is competent to suspend any individual or to revoke existing suspension? Whether the Officer-in-Charge is competent to initiate/finalize disciplinary action for major penalty and or for minor penalty? Can the Officer-in-Charge issue penalty order for penalties decided for in the file by erstwhile General Manager? OFBs clarifications vide letter No. 1480/CL/A/VIG dated 9th November 1992

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Preliminary inquiry
When allegations of misconduct or misbehaviour against a Govt. servant are brought to the notice of the disciplinary authority for initiating disciplinary proceedings, it may order a preliminary enquiry or fact finding enquiry. The CCS (CCA) Rules do not call for holding a preliminary enquiry. So, if at all a preliminary enquiry is held, it is not held under any statutory rules and there is no prescribed procedure for holding such an enquiry. The purpose of holding the preliminary enquiry is not to find out whether the Govt. servant concerned is guilty or otherwise of the charges. The purpose is just to collect the facts and evidences relating to the allegation. If at all the officer who has conducted the preliminary enquiry has given an opinion that the concerned Govt. servant is not guilty of or there is not much truth in the allegation, yet it does not preclude the disciplinary authority from ordering a regular enquiry under the Rules. When sufficient evidences support the allegations of misconduct or misbehavior, there may not be any need at all for holding a preliminary enquiry.

Issue of Charge sheet-Grave-meaning of


Irrespective of the nature of allegations or charges or imputations of misconduct or misbehaviour, i.e. whether they are grave or otherwise, or whether he is liable to be punished with any of the minor or major penalties, informing the delinquent Govt. servant of the charges against him is inevitable except where the proceedings are proposed to be instituted under Rule 19 in certain cases. Grave-held, connotes enormity of misconduct in juxtaposition with technical, trifle or misconduct simpliciter. Grave misconduct- the word grave intent to indicate supereminent or a very high degree of misconduct. The Rules do not particularize the penalties specified in Rule 11, so to say that unlike in Indian Penal Code, it does not say that for misconduct A you impose penalty B and for misconduct C you impose penalty D and so on. It is left to the judgment and wisdom of the disciplinary authority to decide as to

Point 1: The Officer-in-Charge can suspend any employee or revoke the suspension with the approval of competent Disciplinary Authority, which should be taken within one month. Points 2 & 3: No.

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what should be the penalty in a particular case of misconduct. The general rule/principle is that the nature of disciplinary action and quantum of penalty must be proportionate/ commensurate to/with the gravity of the misconduct; it should not be shockingly disproportionate.

Disciplinary authorities cannot be under the dictates of third parties


The punishment to be imposed whether minor or major depends upon the nature of every case and gravity of the misconduct proved and that the authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case and they cannot be under the dictates of the Central Vigilance Commission or the Central Government and no third party like, Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their powers and what punishment they should impose on delinquent officers. Moreover, disciplinary authority should not have allowed a junior functionary (Works Manager in this case) under him to process the case and suggest the penalty which was not authorized under the CCS (CCA) Rules, the proceedings being quasi-judicial in nature. It was the disciplinary authoritys personal responsibility to record the findings himself and award punishment after application of his own mind to the charges proved, without being influenced by the submissions of another officer, who was an outsider to the proceedings. Initiating no disciplinary proceedings in a case that is worth punishing and initiating disciplinary proceedings in a case where a warning will meet the ends of justice is bad. Equally bad is initiating disciplinary action for imposing a minor penalty where the case deserves a major penalty and vice versa. The power to punish carries with it the duty to act justly.

Proceedings under Rule 1 4 and Rule 16-difference


Once the gravity of the misconduct has been weighed and it is decided to commence disciplinary action for imposing a penalty, the stage then comes for deciding at least the category of the penalty proposed to be imposed, i.e. whether minor or major. This is necessary because the proceedings taken for imposition of these categories of penalties are not identical; but different. If a major penalty is proposed to be imposed, then the proceedings are to be conducted under Rule 14, whereas, for imposing a minor penalty, proceedings may be conducted under Rule 16 or Rule 14. In other words, proceedings commenced under Rule 14 may

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conclude with the imposition of a major penalty or a minor penalty or with the exoneration of the delinquent Govt. servant. But in a proceedings instituted under Rule 16, no major penalty can be imposed. It is needless to say that decision on whether to commence the proceedings under Rule 14 or Rule 16 will depend upon the gravity of the misconduct alleged.

Drawing up of charges
If the decision is to initiate disciplinary proceedings under Rule 14, substance of imputations of misconduct will then have to be drawn up into definite and distinct articles of charge. These must be supported by statement of the imputations in respect of each article of charge containing all relevant facts including admission/confession, if any made by the delinquent Govt. servant. It must also be supported by a list of documents by which and a list of witnesses by whom, the articles of charges are proposed to be sustained.

How to frame charges?


A charge must be specific, precise and intelligible. Vagueness in the wordings of a charge must be avoided. The charge must be sufficiently described and supported by facts. Mere mention of a particular clause of Conduct Rules is not enough to explain and sustain a charge. If a charge has been sufficiently described, a charge does not become invalid by reason of omission to mention a particular clause of the Conduct Rules in the chargesheet. The disciplinary authority itself may draw up the charges or may cause to be drawn up by any other responsible officer. Such a detailed charge sheet is not necessary in case of proceedings under Rule 16. Rule 16 requires that the Govt. servant concerned must be informed of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which such action is proposed to be taken.

Charge sheet
Written intimation to the employee of the proposal to proceed against him in respect of certain misconduct is called charge sheet. Generally a charge sheet under Rule 14 contains four annexures. Annexure I contains the articles of charge. Annexures III and IV respectively contain list of documents by which and list of witnesses by whom the charges are proposed to be sustained, whereas Annexure II will contain the statement of imputations of misconduct in support of each article of charge. Time limit for reply is specified in the covering letter.

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Chargesheet-basically a matter of substance-in vernacular


Though the abovesaid format is mentioned in most of the statutory rules and is in common use, the charge sheet is basically a matter of substance and if it contains all relevant facts with mention of supportive evidence, by which the charge can be understood and defended properly, the charge sheet is lawfully valid. There is no magic in the word charge sheet. It is nowhere contemplated in the rules that as soon as a departmental charge-sheet is served upon a delinquent the copies of documents sought to be relied upon should be served upon him. That question really arises when considering his representation the concerned authority deems it fit to initiate a departmental enquiry against him. If the charged employee does not understand English, translation of the charge sheet in his vernacular, if not furnished, may amount to proceedings being declared invalid.

Who can sign the charge sheet?


It is not essential that the Appointing Authority or the disciplinary authority should sign the charge sheet. Any responsible officer can sign it. With regard to initiation of disciplinary proceedings by the Regional Director, we find that the legal position is well settled that it is not necessary that the authority competent to impose the penalty must initiate the disciplinary proceedings and that the proceedings can be initiated by any superior authority, who can be held to be the Controlling Authority who may be an officer subordinate to the Appointing Authority. When there is an indication that the charge sheet is issued in the name of the disciplinary authority, it makes it an initiation by the disciplinary authority. What is essential is either an express or implied approval of that authority for the issue of the charge sheet. After issue of the charge sheet by a lower authority, if the enquiry officer is appointed by the disciplinary authority, that would establish implied approval of the charge sheet by the disciplinary authority. Initiation of Departmental Inquiry by an Officer subordinate to the appointing authority- held, unobjectionable. Only the dismissal/ removal shall not be by an authority subordinate to the appointing authority. The Rule itself is clear in this regard when it says that the disciplinary authority itself may draw up and deliver the charge sheet or may cause to be drawn up and delivered by any other responsible officer. The provisions of Article 311 (1) of the Constitution have no application to the stage of issue of charge sheet.

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Service of orders etc.- service by post


Every order, notice or other communication connected with the disciplinary proceedings must be served on the official either in person or sent to him by Regd. A/D Post. Where any Central Act or Regulation made after the commencement of this Act authorises or requires any document to be served by post, whether the expression service or either the expressions give or send or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting by registered post, a letter containing the document, and unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post. It is well settled principle of law that letters duly addressed and sent per registered post shall be deemed to have been served on the addressee if the acknowledgments return with endorsements like left and refused.

Amendment/withdrawal of chargesheet
A defective charge sheet may be amended. Liberty should be given to the employer to proceed afresh after serving the amended chargesheet on the delinquent employee. The disciplinary authority has the inherent power to review and modify the articles of charge or to drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the delinquent Govt. servant under Rule 14 (4) of CCS (CCA) Rules, 1965. Once the disciplinary proceedings are initiated against an official the proceedings cannot be closed without sending intimation to that effect to the delinquent Govt. servant. Disciplinary proceedings against an employee who has been dismissed or removed from service in another disciplinary case will stand suspended. These proceedings can be revived, if and when the official is reinstated in service on appeal.

Time limit for submission of reply to charge sheet


When a person is charge-sheeted he will be given a reasonable time in which to reply to the charges. The time limit will be varied in accordance with the nature of charges and the difficulty that the person may have in framing his reply. An employee who is charge-sheeted should get at least

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one weeks time in which to submit his defence. This period will commence from the date of actual delivery of the charge sheet and not from the date of charge sheet unless it is also delivered on the same date. As per paragraph 2 of the standard forms prescribed for charge sheet under Rule 14 and Rule 16, 10 days time is allowed to the charged employee to submit his statement of defence. If the charged employee so desires, a personal hearing by the disciplinary authority also is afforded to him at this stage.

Possibilities regarding reply


As per Rule 14 (4) the disciplinary authority shall require the Government servant to submit within the specified time a written statement of his defence on the charges leveled against him. If the Govt. servant submits no written statement of defence, an enquiry will follow. But there is no presumption that he has admitted the charges and hence no enquiry need be held. If the reply neither admits nor denies the charges, then also enquiry has to follow. It is not necessary that the delinquent Govt. servant should submit a detailed representation. If he gives a one-sentence reply denying all the charges, that is enough. If some charges are admitted and some are denied, enquiry will be conducted only in respect of such charges, which are not admitted and if all the charges are admitted, no enquiry need be held. But the admittance must be clear, unambiguous and unconditional.

Is enquiry mandatory in case of proceedings under Rule 16?


In the case of proceedings under Rule 14, if the charges are denied, or if no representation is submitted, enquiry is mandatory in respect of such charges, which are not admitted. But in case of a charge sheet under Rule 16, enquiry may be held/ordered if the disciplinary authority is of the opinion that an inquiry is necessary. If it is decided to hold an inquiry, it will be held in the same manner as laid down in Rule 14. A request for holding an inquiry in the case of a charge sheet under Rule 16 should not be rejected solely on the ground that under the rule inquiry is not mandatory. On the contrary, the request should be considered on merits and by application of mind to all the circumstances and reasons urged in the request and the request should be disposed of by a speaking reply.

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Inquiry mandatory under Rule 16 (1-A)


However, in cases where a charge sheet under Rule 16 has been issued and after consideration of the representation submitted by the Govt. servant, it is proposed to impose any of the following three penalties, namely:
1. to withhold the increments of pay where such withholding of increments is likely to adversely affect the pension payable to the Govt. servant, or 2. to withhold increments of pay for a period exceeding three years, or

3. to withhold increments of pay with cumulative effect for any period, then an inquiry in the manner as laid down in Rule 14 shall be held before imposing any of these three penalties. These three items are variants or are derived of/from the penalty of withholding of increments of pay at item (iv) under minor penalty category. Generally for imposing a minor penalty under Rule 16, it is not mandatory to hold an enquiry. These three cases are exception to the general rule, and as per Rule 16 (1-A), if any of the above three penalties were to be imposed, it could be imposed only after holding an enquiry. However, the third item above has been held to be a major penalty by the Supreme Court and the Court has ruled that this penalty cannot be imposed without holding an inquiry. The condition of holding an enquiry before this penalty is imposed is taken care of by Rule 16 (1-A).

Manner of enquiry
From the above discussion it can be summed up that enquiry becomes necessary in the following circumstances:
1. Charge sheet under Rule 14 issued-charges (all or some) denied 2. Charge sheet under Rule 16 issued-disciplinary authority on its own

decided to hold an enquiry after considering the representation submitted by the charged employee
3. Charge sheet under Rule 16 issued- employee requested for an

enquiry-disciplinary authority conceded the request

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4. Charge sheet under Rule 16 issued-it is proposed to impose any of

the three items of penalty listed in Rule 16-1A after considering the reply submitted by the employee

Procedure for holding enquiry


The procedure for holding enquiry in all these instances is the same and is described in sub-rules (5) to (23) of Rule 14. In other words, there is no separate procedure for holding the enquiry, even if the charge sheet is issued under Rule 16 for imposing a minor penalty. In case of an enquiry under circumstances (2) to (4) mentioned above, and despite the manner for holding the enquiry is as prescribed under sub-rules of Rule 14, the charge sheet will continue to be under Rule 16. In other words, it would not be converted to the one under Rule 14. The implication is that, on conclusion of the proceedings, even if the charged employee is found guilty of the charges, nothing more than a minor penalty can be imposed upon him.

Who can hold the enquiry?


The inquiry in the manner as laid down in sub-rules of Rule 14 may be held by the disciplinary authority itself or it may appoint an inquiring authority to hold the inquiry. There is no stipulation in the rule that the Inquiry Officer should be a Govt. servant. In some departments, retired Govt. servants are appointed as Inquiry officers. However, person having any personal interest in the case should not be appointed as Inquiry Officer. He should be and should appear to be unbiased. An official who may have to appear as a witness in a disciplinary case should not be appointed as Inquiry Officer in that case.

Common Proceedings
Where two or more Govt. servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Govt. servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. If the authorities competent to impose the penalty of dismissal on such Govt. servants are different, the order with regard to the institution of common proceeding may be ordered by the highest of such authorities with the consent of others. In case of cross complaints or cross accusations, common proceedings should be avoided.

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Right to speedy trial


Constitutional guarantee of speedy trial has universally been thought essential to protect at least three basic demands of criminal justice in the Anglo-American legal system, namely (i) to prevent undue and oppressive incarceration prior to trial, (ii) to minimize anxiety and concern accompanying public accusation and (iii) to limit the possibilities that long delay will impair the ability of an accused to defend himself. The right to speedy trial in our country flows from Article 21 of the Constitution. The speedy trial not only means a trial in court but it includes the stage of investigation also. This applies to disciplinary proceedings also.

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Departmental Proceedings
&

Criminal Proceedings
Why Departmental Proceeding and Criminal Proceedings?
The approach and the objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the employee is guilty of such conduct as would mean his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Indian Penal Code, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different.

Departmental action should not precede prosecution


As per Govt. of Indias instructions, prosecution should be the general rule in all those cases which are found fit to be sent to Court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. In such cases, according to these instructions, departmental action should not precede prosecution. In other cases involving less serious offences or involving malpractices of a departmental nature, departmental action only should be taken and the question of prosecution should generally not arise. Where the conduct of an officer discloses a grave offence of a criminal nature, criminal prosecution should be the rule and not the exception. Where the competent authority is satisfied that there is no criminal case, which can be reasonably sustained against such officer, criminal prosecution should not, of course, be resorted to; but prosecution should not be avoided merely on the ground that the case might lead to an acquittal.

Why criminal trial should precede departmental action?


It is to be noted that the nature of a criminal trial and that of a domestic inquiry are quite different and that in a criminal trial, the standard of proof is much more strict than in a domestic inquiry. In the criminal trial the accused can remain silent and leave the prosecution to prove the case,

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but in a domestic inquiry, where the standard of proof is not the same, the accused person may have to participate more actively in the inquiry, put forth his case more in detail and even endeavour to prove it by adducing evidence. Such being the case, if the criminal trial takes place after the domestic inquiry the concerned person would be prejudiced; either he would have to disclose his case in the domestic inquiry before the trial starts or he would have to refrain from disclosing his case in the domestic inquiry and therefore lose that inquiry. That is the reason why it would be just and proper that the criminal trial takes place first and the domestic inquiry second.

Presumption of corruption
A presumption of corruption fairly and reasonably arises against an officer who cannot account for large accretion of wealth which he could possibly have saved from his known source of income. This principle has received statutory recognition in Section 5 (3) of the Prevention of Corruption Act, 1947, and its application in a departmental inquiry against an officer charged with corruption could not, therefore, be unjust or inequitable. In fact, this principle has been upheld by the Supreme Court in the case of Shri. G.R. Manekar v. Union of India.

Whether both can continue simultaneously?


One of the contending considerations is that the disciplinary enquiry cannot be and should not be delayed unduly. So far as criminal cases are concerned, it is well known that they drag on endlessly where high officials or persons holding high public offices are involved. They get bogged down on one or the other ground. They hardly over-reach a prompt conclusion. If a criminal case is unduly delayed that may itself be a good ground for going ahead with the disciplinary enquiry even where the disciplinary proceedings are held over at an earlier stage. The interest of administration and good Government demand that these proceedings are concluded expeditiously. It must be remembered that interests of administration demand that undesirable elements are thrown out and any charge of misdemeanor is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty he should be dealt with promptly according to law. It is not also in the interest of the administration that person accused of serious misdemeanor should

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be continued in office indefinitely, i.e. for long periods awaiting the result of criminal proceedings. The court finally held that the indisputable proposition is that there is no legal bar for both proceedings to go on simultaneously.

Guidelines given by Supreme Court


In Captain M. Paul Anthony v. Bharat Gold Mines Limited the Supreme Court has laid down five guidelines to be followed when departmental proceedings and criminal case are proceeding simultaneously. They are enumerated below: (i) Departmental proceedings and proceedings in a criminal case can proceed simultaneously and there is no bar in their being conducted simultaneously though separately. If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. Where the nature of a charge in a criminal case is of a grave nature and complicated questions of law and fact are involved in that case, it will depend upon the nature of offence, the nature of the case launched against the employee on the basis of the evidence and material collected against him during investigation or as reflected in the charge sheet. The factors mentioned (ii) and (iii) above can not be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that departmental proceedings can not be unduly delayed. If the criminal case does not proceed or its disposal is unduly delayed, the departmental proceedings even if they were stayed on account of the pendency of the criminal case, can be resumed and proceed with so as to conclude them at an early date so that if the employee is not found guilty the honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

(ii)

(iii)

(iv)

(v)

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Departmental action after acquittal in criminal case


Normally where the accused is acquitted honourably and completely exonerated of charges in a criminal case, it would not be expedient to continue a departmental inquiry on the very same charge or grounds or evidence, but the fact remains, however that merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor is its discretion in any way fettered. If the authority feels that there is sufficient evidence and good grounds to proceed with the inquiry, it can certainly do so.

Departmental action on conviction on a criminal charge


As per clause (a) of 2nd proviso to Article 311 (2) and Rule 19 (i) of CCS (CCA) Rules, where any penalty is proposed to be imposed on a Govt. servant on the ground of conduct which has led to his conviction on a criminal charge, the disciplinary authority may consider the circumstances of the case and make such orders thereon, notwithstanding anything contained in Rule 14 to Rule 18 of the said Rules. However, the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made. In such circumstances, no enquiry is held, not even a charge sheet is issued. The question of taking departmental action should be considered as soon orders of conviction are passed.

Govt. servant to intimate the fact of conviction


It is the duty of the Govt. servant concerned to intimate his official superiors of the fact of his conviction and the circumstances connected therewith. Failure on his part so to inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the penalty called for on the basis of offence on which his conviction was based.

Consideration by disciplinary authority


Having come to know of the conviction of a Govt. servant on a criminal charge, the disciplinary authority must consider:
1. whether his conduct, which had led to his conviction, was such as

warrants the imposition of a penalty, 2. and if so, what the penalty should be.

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For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the administration and other extenuating circumstances or redeeming features. This, however, has to be done by the disciplinary authority itself. Once the disciplinary authority reaches the conclusion that the Govt. servants conduct was blameworthy and punishable, it must decide upon the penalty that should be imposed upon the Govt. servant.

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Departmental Inquiry
Applicability of Evidence Act-Principles of Natural Justice
Departmental Inquiry is the inquiry conducted as part of departmental proceedings. It may be conducted by the disciplinary authority itself or by an inquiring authority appointed by the disciplinary authority. Departmental proceedings are distinct from judicial/criminal proceedings and hence strict rules of evidence are not applicable to departmental inquiries. Though the Evidence Act itself is not applicable, essential principles of fair play envisaged in the Evidence Act are applicable. Apart from this, there are some important principles of natural justice, which are required to be followed in departmental inquiries. A few of them are (1) hear the other side - no one should be condemned unheard, (2) no person shall be a judge in his own case, (3) justice should not only be done but should manifestly seen to be done, (4) no one should be punished for the fault of others, and (5) no man shall be punished twice for one and the same fault. The standard of proof required in departmental inquiries is preponderance of probability and not conclusive evidence. Departmental Inquiry starts with the issue of charge sheet and ends with either exoneration or punishment of the charged employee. Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. As this Inquiry is an internal inquiry, conducted generally by an internal officer, it is also known as domestic inquiry.

Aim or purpose of Inquiry


Departmental Inquiry is held with a view to bringing on record all documentary and oral evidence in the case. Oral evidences are brought on record by examination, cross examination, re-examination and re-cross examination of witnesses, both of the department and of the delinquent Govt. servant. After all the required evidences are brought on record, the inquiry officer analyses them and records his finding on each article of charge, i.e. whether the charge is established/proved or otherwise and forwards the same to the disciplinary authority, if the disciplinary authority

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itself is not the inquiring authority. The findings recorded by the inquiring authority form an important material before the disciplinary authority, which along with the evidence (recorded) is taken into consideration by it to its conclusions.

Procedure for holding the inquiry


The manner in which the departmental inquiry is to be conducted is described in Rules 14 and 15 of CCS (CCA) Rules. If the enquiry is not held under CCS (CCA) Rules, but under the Public Servants (Inquiries) Act, 1850, the manner of conducting the enquiry to be followed is the one prescribed under that Act. In other words, inquiry may be held either under Rules 14 & 15 of CCS (CCA) Rules or under the Public Servants (Inquiries) Act, 1850. If the enquiry is conducted under CCS (CCA) Rules, procedure for holding such an enquiry is described in Rules 14 & 15 of CCS (CCA) Rules and this procedure would have to be adhered to. If the enquiry is conducted under the aforesaid Act, the procedure prescribed in the Act would have to be followed.

Inquiry-when does it become necessary?


An inquiry under CCS (CCA) Rules becomes necessary in the following circumstances:
1. Chargesheet under Rule 14 issued-charges (all or some) denied 2. Chargesheet under Rule 16 issued-disciplinary authority on its own

decided to hold an enquiry after considering the representation submitted by the charged employee
3. Chargesheet under Rule 16 issued- employee requested for an

enquiry-disciplinary authority conceded the request


4. Chargesheet under Rule 16 issued-it is proposed to impose any of

the three items of penalty listed in Rule 16 (1-A) In all these cases, the enquiry will be held in the manner as laid down under Rules 14 & 15 of CCS (CCA) Rules.

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Can inquiry be dispensed with?


As per Article 311 (2) of the Constitution, no civil servant can 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 of being heard in respect of those charges. As per this Article, holding of an inquiry, informing the delinquent Govt. servant of the charges against him, (i.e. issue of chargesheet) and affording to the delinquent Govt. servant a reasonable opportunity of being heard in respect of the charges leveled against him are the pre-requisites for imposition of any of the penalties viz. Dismissal, removal or reduction in rank. The Constitution does not mandate the same procedure (i.e., issue of chargesheet, holding of an inquiry and providing the delinquent Govt. servant a reasonable opportunity of being heard) for imposing any penalty other than these three, must be followed. The Article, however, cannot be construed to mean that it prevents or prohibits the inquiry when punishment other than that of dismissal, removal or reduction in rank is awarded. The procedure to be followed in awarding other punishments is laid down in the service rules governing the employee. True to this observation, it is laid down in Rule 14 (1) of CCS (CCA) Rules that no major penalty shall be imposed without holding an inquiry in the manner provided in Rules 14 & 15 of the Rules. Also in Rule 16 (1-A) it is laid down that for imposing any of the three penalties listed therein, an inquiry must be held. Thus it becomes clear that for imposing any of the major penalties and also the three penalties listed in Rule 16(1-A) inquiry is mandatory. In case of three major penalties, viz. Dismissal, removal and reduction in rank, it is mandatory under Art. 311 (2). In case of all the major penalties, it is mandatory under Rules 14 (1) and in case of certain other penalties under Rule 16(1-A) of CCS (CCA) Rules. However, there is a 2nd proviso to Article 311 (2), as per which inquiry shall be dispensed with in the following cases, namely: 1. Where the penalty is proposed to be imposed on the ground of conduct which has led to the Govt. servants conviction on a criminal charge 2. Where the authority competent to impose a penalty is satisfied for the reasons to be recorded in writing that holding of inquiry is not reasonably practicable 3. Where the President is satisfied that in the interest of the security of the State it is not expedient to hold such enquiry

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Corresponding provision can be found in Rule 19 of CCS (CCA) Rules also, wherein it has been provided that in the aforesaid three types of cases, the disciplinary authority may consider the circumstances of the case and make such orders thereon as deems fit, notwithstanding anything contained in Rule 14 to Rule 18. However, as per first proviso to Rule 19, the concerned employee has to be given opportunity of making representation on the penalty proposed to be imposed on the ground of conduct which has led to his conviction on a criminal charge before that penalty is imposed on him. In other words, there is no second opportunity for him for defence against the charges because the charges were tried in the Court and the Court has convicted him.

Where all the charges are admitted


Where all the charges have been admitted by the Govt. servant in his written statement of defence submitted in response to the charge sheet, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit. No enquiry is held when all the charges are admitted.

Appointment of Inquiry Officer


Where any charge is not admitted, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted or it may appoint an inquiry officer to hold the enquiry. Inquiry Officer, if any appointed, becomes the delegate of the disciplinary authority. However, it should be possible in a majority of cases, and the more serious ones at any rate, to ensure that the disciplinary authority himself does not conduct the inquiry. It may still be not practicable to ensure in all cases that the disciplinary authority himself would not be the Inquiry Officer. Such a course may be necessary under certain circumstances particularly in small field formations where the disciplinary authority as well as the Inquiry Officer may have to be one and the same person. It has accordingly been decided that unless it is unavoidable in certain cases as mentioned above, the disciplinary authority should refrain from being the Inquiry Officer and appoint another officer for the purpose. It is obviously desirable that only disinterested officers should be appointed as inquiry officers in departmental proceedings. As a rule the person who undertakes this task should not be suspected of any bias in such cases.

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Allegation of bias against the Inquiry Officer


Wherever an application is moved by a Govt. servant against whom disciplinary proceedings are initiated under CCS (CCA) Rules, against the Inquiry Officer on grounds of bias, the proceedings should be stayed and the application referred, along with the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon. For this purpose the reviewing authority would normally be the appellate authority. Obviously any representation against the appointment of inquiry officer on grounds of bias should be made as soon as the inquiring authority has been appointed, but not after the proceedings have commenced and reached an advanced stage. No hard and fast rules can, however, be laid down and each case will have to be examined on merits on the facts and circumstances brought out by the concerned Govt. servant alleging bias on the part of inquiring authority. As the rules stand at present, it is not possible to deny to the Govt. servant the right to ask for review of any orders issued under CCS (CCA) Rules, 1965 at any time.

Role of Inquiry Officer


The Inquiry Officer who is a delegate of the disciplinary authority performs quasi-judicial function. His main role is to record/take on record oral and documentary evidence produced by the prosecution and the defence and to analyze the evidences to arrive at a reasonable and logical conclusion as regards to the guilt or otherwise of the delinquent Govt. servant. When he analyzes the evidence or record, he should not use any extra material collected behind the back of the delinquent Govt. servant or import his own personal knowledge into the evidence. The inquiry officer should confine himself to the charges against the delinquent and must not base his findings on extraneous facts or considerations. It is not his interest to see that somehow the prosecution case is proved. On the contrary, he should be neutral and fair to both the sides. The onus of proving the charge lies on prosecution; but not on the Inquiry Officer. The burden of proof to establish a charge against an employee is on the employer. a tribunal is wrong if it places the burden of establishing his innocence on the public servant.. The inquiry officer is not required by the rules to recommend any penalty. It is the disciplinary authoritys prerogative to decide the quantum of penalty to be awarded to the delinquent Govt. servant. The Inquiry Officer is not supposed to record finding on any charge, which has not been included in the charge sheet, unless the delinquent Govt. servant has admitted it or had reasonable opportunity of

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defending him against the said charge. The Inquiring Authority becomes functus officio after he signs and submits his report. In other words, his function and authority as inquiry officer come to an end after he signs and submits his report to the disciplinary authority.

Appointment of Presenting Officer


Whether the disciplinary authority itself is the inquiring authority or whether any inquiring authority has been appointed to hold the inquiry, disciplinary authority may appoint a Govt. servant or a legal practitioner as Presenting Officer to present on its behalf the case in support of articles of charge. A person who may have to appear as a witness in disciplinary case should not be appointed as inquiry officer or presenting officer. The provision regarding appointment of presenting officer is an enabling provision. There is no compulsion that in each and every disciplinary case, the disciplinary authority must appoint a Presenting Officer.

Assistance to the delinquent Govt. servant


Just as a presenting officer is appointed to present on behalf of the disciplinary authority the case in support of the articles of charge, the delinquent Govt. servant is entitled to engage a Govt. servant or a legal practitioner to assist him in his case. The person so engaged is known as Defence Assistant or Assisting Officer. The Defence Assistant may be any of the following, subject to some conditions: 1. Any Govt. servant posted in any office at the headquarters of the charged employee, or 2. Any Govt. servant posted in any office at the place where the inquiry is held, or 3. Any Govt. servant posted at any other station, or 4. Any retired Govt. servant, or 5. A legal practitioner

Conditions for engagement of Defence Assistant


Govt. servants in general A Govt. servant who has three pending disciplinary cases on hand, in which he has to give assistance is not permitted to be engaged as Defence Assistant. In other words, a Govt. servant can render assistance in not more than three cases only. A Govt. servant under suspension is

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also eligible to function as defence assistant. While no permission is needed by the official who is charge-sheeted to secure the assistance of any other Govt. servant, and also for the latter to assist the delinquent Govt. servant, it is necessary for the Govt. servant who has been nominated as defence assistant to obtain permission from his Controlling Authority to absent himself from office in order to assist the delinquent Govt. servant during the inquiry. The Controlling Authority may refuse permission on reasonable/genuine grounds and such refusal would not amount to denial of reasonable opportunity to defend the case, as it is open to the delinquent Govt. servant to nominate another Govt. servant for rendering assistance. Govt. servants from other stations Govt. servant at Sl. No. 3 above can be engaged only if the inquiring authority permits the delinquent Govt. servant to engage such a Govt. servant having regard to the circumstances of the case, and for reasons to be recorded in writing. It has been decided, that a Govt. servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Govt. servant or the place of inquiry. Accordingly, in all cases where the Inquiring Authority rejects the request of the charged Govt. servant for engagement of a defence assistant from a place other than the headquarters of the charged Govt. servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Govt. servant to enable him to make a representation against the order, if he so desires, to the Disciplinary Authority. On receipt of the representation from the charged Govt. servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the Inquiring Authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order. Retired Govt. servants 1. The retired Govt. servant should have retired from service under the Central Government. 2. If the retired Govt. servant is also a legal practitioner, restrictions on engaging a legal practitioner will apply

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3. He should not have been associated with the case at investigation stage or otherwise in his official capacity 4. He should not act as defence assistant in more than five cases at a time. He should satisfy the Inquiring Authority that he does not have more than five cases in hand including the case in question.

Legal Practitioner
Normally legal practitioners are not permitted to assist either party in departmental proceedings. However, a charged employee may obtain the assistance of a legal practitioner to defend himself, as of right, where the presenting officer appointed to present the case of the department is a legal practitioner. In other cases, the disciplinary authority may allow the obtaining of such assistance if the facts and circumstances of the case so warrant e.g. where the matter has legal overtones or the issues involved are complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.

Appearance by the delinquent Govt. servant


On the date and at such time as specified by the Inquiring Authority by notice in writing, the delinquent Govt. servant shall appear in person before the Inquiring Authority. If the delinquent Govt. servant has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, the inquiry officer shall ask the delinquent Govt. servant (if he appears) whether he is guilty or has any defence to make. If he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the delinquent Govt. servant on the recording made. If the delinquent Govt. servant fails to appear within the specified time or refuses/omits to plead, the Inquiring Authority shall require the Presenting

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Officer to produce the evidence by which he proposes to prove the charge(s).

Access to documents
Generally the copies of documents by which the charges are proposed to be sustained are supplied to the delinquent Govt. servant along with the charge sheet. If the copies of these documents are not supplied along with the charge sheet, the same will have to be given sufficiently in advance of the examination of prosecution witnesses. The charged employee should be permitted to inspect the documents other than specified in the chargesheet depending upon its relevance to the case of the delinquent Govt. servant. If he applies for copies of such documents indicating relevance thereof, such requests should be considered on merit and he should be given copies of such documents or permitted to inspect of those documents which are considered relevant to his case and which are to be relied upon in the inquiry. When copies are refused, reasons for refusal must be recorded.

Production of oral and documentary evidence


On the date fixed for the inquiry, the Presenting Officer shall produce oral and documentary evidence on behalf of the prosecution. The prosecution witnesses are to be examined by the Presenting Officer and the delinquent Govt. servant or his assistant shall be allowed to crossexamine the witnesses. Opportunity to the delinquent Govt. servant to cross-examine the prosecution witnesses is an important aspect and part of departmental inquiries. If this opportunity is denied, there is very much likelihood of the inquiry proceedings being declared as arbitrary and vitiated. Reasonable opportunity of being heard as used in Art. 311 (2) to include opportunity to examine/cross examine the witnesses and to rebut or controvert the evidences produced by the opposite party. One of the basic requirements of departmental inquiries is that no information is received or recorded behind the back of the delinquent Govt. servant. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of the person charged, are not to be treated as substantive evidence is one of the basic principles, which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. After the cross-examination, the presenting officer may

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re-examine the witnesses and may be re-cross examined by the defence side. After all the prosecution witnesses are examined, the delinquent Govt. servant has a right to state his defence orally or in writing and to produce evidence on his behalf. He may produce witnesses and examine them. These witnesses may be cross-examined by the Presenting Officer. The charged officer cannot be forced to give evidence in the departmental inquiry. If he so desires, he can himself be a defence witness. If he produces himself as a witness, he will be examined by his assistant and may be cross-examined by the Presenting Officer. On the conclusion of inquiry, the Inquiry Officer shall question the delinquent Govt. servant on the circumstances appearing against him in the evidence, if the delinquent Govt. servant himself had not been a defence witness. If he had been a defence witness, it is left to the discretion of the inquiring authority whether to question him at all.

Can attendance of witnesses be enforced?


If the enquiry is conducted on allegations relating to lack of integrity, bribery or corruption, Departmental Enquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972 can be invoked to enforce the attendance of witnesses, etc. Every inquiring authority authorized under Section 4 of this Act shall have the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, for summoning and enforcing the attendance of any witness and examining him on oath, requiring the discovery and production of any document or other material which is producible and requisitioning of any public record from any court or office.

Additional evidence
The Inquiring authority may permit the Presenting Officer to produce additional evidence if the evidence already on record suffers from an inherent lacuna or defect i.e. it is not sufficient to arrive at a correct conclusion without recording further evidence. Such permission is not granted as a matter of course. New evidence cannot be permitted to fill up gaps in the evidence already recorded. Normally, the prosecution, which had sufficient time at its disposal to frame the charge sheet, is not likely to leave out any loophole in the evidence in the first instance. Recall of witness amounts to admitting additional evidence and will be treated accordingly. The proper stage for permitting additional/new evidence is

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when the prosecution has closed its case and the recording of defence evidence is yet to commence. If additional/new evidence is permitted to be brought in, due notice should be given to the delinquent Govt. servant and he should be permitted to inspect the document and to cross examine the witness and also to bring in new documents or defence witness to controvert the new evidence brought in by prosecution.

Brief
After both sides cases are over, the presenting officer and the defence assistant may submit their written/oral brief to the inquiry officer. At first the presenting officers brief will be recorded or taken and copy of the same will be given to the other party. Thereafter, the defence can submit its brief.

What is written brief?


Written brief is an overall sum up of his case by a party in disciplinary proceedings. It is submitted after the entire evidence on behalf of both the employer and the employee has been recorded and contains written arguments to sum up the effect of various facts and evidence recorded in the case. A copy of the written brief of the presenting officer has to be supplied to the charged employee before he is asked to submit his written brief

Stay of disciplinary proceedings


Departmental proceedings need not be adjourned or stayed in the following circumstances: (1) On receipt of notice under Section 80 of Civil Procedure Code (2) On receipt of intimation that the Officer proposed to file a writ petition (3) On receipt of a mere show cause notice (or Rule Nisi) from a Court asking:
(a) Why the petition should not be admitted, or (b) Why the proceedings pending before disciplinary

authority/inquiry

authority should not be stayed, or (c) Why the writ or an order should not be issued

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2. The proceeding should be stayed only when a court of competent jurisdiction issues an injunction or clear order staying the same. 3. No disciplinary proceeding, however, should be started subsequent to the initiation of the Court proceedings if they have effect to deterring or intimidating the petitioner from proceeding with the court case.

Ex-parte inquiry
If the chargesheet sent by Registered A/D to the employee is returned undelivered or if the chargesheet is delivered but not replied to by the employee in time, or if the employee does not appear before the inquiry officer despite notice communicated, or if he fails to comply with the provisions of CCS (CCA) Rules, the inquiring authority may hold an exprate enquiry. Normally notices of all hearings are communicated to the employee. The inquiring authority should record reasons for holding exparte enquiry and also list out the efforts made to ask/persuade the employee to take part in the inquiry. During the course of inquiry the delinquent Govt. servant is free to join the inquiry. The inquiry will continue from the stage at which the delinquent Govt. servant has agreed to participate. Generally there is no need to start the enquiry afresh. Whether it is an ex-parte enquiry or otherwise, procedure for holding the enquiry is one and the same, the only difference being that in ex-parte enquiry the defence side will be absent.

Report of Inquiring Authority


What have been mentioned under the paragraph Role of Inquiry Officer is relevant in this context also. A record of finding is essential in a departmental inquiry. Apart from the evidence recorded during the inquiry, the findings of the inquiry officer form an important material before the disciplinary authority to reach to its conclusions. Although it is true that the disciplinary authority is supposed to arrive at its own findings on the basis of the evidence recorded in the inquiry, it is also equally true that the disciplinary authority takes into consideration the findings recorded by the inquiry officer along with the evidence on record. The enquiry officer is a delegate of the disciplinary authority, he conducts the inquiry into the misconduct and submits his report, but his findings or conclusions on the proof of charges would create formidable impression almost to be believed and accepted unless they are controverted vehemently by the delinquent officer. The report of the Inquiry Officer must be just, fair and reasonable. It should contain a brief summary of the documentary and oral evidence

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as well as arguments advanced by both the parties. It is his duty to report clearly and precisely his conclusions and reasons therefor. Conclusions without reasons are not reckoned as conclusions. Reasoning is an indispensable part of decision. Moreover, a reasoned report will ensure its unassailability. As per sub-rule (23) of Rule 14 of CCS (CCA) Rules, the report prepared after conclusion of the inquiry shall contain (a) articles of charge and statement of imputations of misconduct and misbehaviour, (b) the defence of the Govt. servant in respect of each article of charge, (c) an assessment of the evidence in respect of each article of charge, and (d) the findings on each articles of charge and reasons therefor.

Further enquiry & Fresh Enquiry


While holding the enquiry, if any procedural infirmity or any technical lapse has crept in, further inquiry from the stage the said infirmity or lapse has crept in is permissible. In such cases, the case is remitted to the inquiring authority for further enquiry. But Rule 15 (1) of CCS (CCA) Rules does not permit de novo or fresh proceedings. It seems to us that Rule 15 on the face of it, really provides for one enquiry, but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the enquiry or some important witnesses were not available at the time of inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in Rule 15 for completely setting aside the previous inquiries on the ground that the report of the Inquiry Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusions. Power of the Administrative Tribunal to set aside the enquiry proceedings and giving liberty to the authorities to hold fresh enquiry is altogether different from the power of further enquiry available to the departmental authorities under the relevant rules.

Action on Inquiry Report


In departmental proceedings, the charged employee is punished or exonerated not on the basis of findings recorded by the Inquiry Officer, but on the basis of conclusions reached by the disciplinary authority. The disciplinary authority is not bound by rules to accept the findings of the inquiry officer. It may agree or disagree with the findings recorded by the inquiry authority. Only condition laid down in the Rule is that if it disagrees

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with the findings of the inquiry officer, it must record reasons for its disagreement and record its own findings. No reason is required to be given if it agrees with the findings of the inquiry authority.

Furnishing of copy of Inquiry Report to the delinquent Govt. servant


As per Rule 15 as amended recently, if disciplinary authority conducted the inquiry, a copy of the report of the inquiry has to be furnished to the delinquent Govt. servant and he must be given 15 days time to submit his representation on the inquiry report. The disciplinary authority has to consider the representation, if any submitted by the Govt. servant and then record its findings on the charge. If the disciplinary authority had not conducted the enquiry, but had appointed an enquiry officer to hold the enquiry, the disciplinary authority has to peruse the inquiry report before its copy is furnished to the delinquent employee. It is also required to state the tentative reasons for its disagreement, if any with the findings of the inquiry officer. Thereafter, the copy of the report along with the tentative reasons for disagreement so recorded would be forwarded to the delinquent in order to enable him to represent on the findings of the enquiry officer as well as on the reasons for disagreement recorded by the disciplinary authority. The delinquent employee is given 15 days time to submit his representation. If the employee submits any representation, it will be considered before recording the findings of the disciplinary authority. Copy of the inquiry report is given to the delinquent Govt. servant irrespective of whether the report is favourable to him or otherwise.

Imposition of Penalty
On the basis of the findings recorded by it, if the disciplinary authority is of the opinion that any of the minor penalties is to be imposed on the delinquent employee, it may impose on the employee any such penalty. For this purpose, no fresh proceedings under Rule 16 are necessary. On the basis of the findings recorded by it and on the basis of the evidence adduced during the enquiry, if the disciplinary authority is of the opinion that any of the major penalties is to be imposed on the delinquent employee, he may impose on the employee any such penalty.

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It is needless to say that if none of the charges is proved, the employee is exonerated of the charges and consequently, no penalty is imposed on him.

Speaking Order
It is already seen that departmental proceedings are quasi-judicial in nature. It is necessary that competent authority alone issue orders in these proceedings. Recording of reason by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal. It is therefore impressed upon all concerned that the authorities exercising disciplinary powers should issue self contained, speaking and reasoned orders conforming to the aforesaid legal requirements. A speaking order at its best be a reasonable one and at its worst a plausible one.

Quantum of penalty and issue of order


The punishment to be imposed whether minor or major depends upon the nature of every case and gravity of the misconduct proved. The authorities have to exercise their judicial discretion having regard to the facts and circumstances of each case. They cannot be under the dictates of the Central Vigilance Commission or the Central Government. No third party like, Central Vigilance Commission or the Central Government could dictate the Disciplinary Authority or the Appellate Authority as to how they should exercise their powers and what punishment they should impose on delinquent officers. They cannot delegate their powers to their subordinates. It is therefore essential that the decision taken by such authorities are communicated by the competent authority under their signatures.

Finality of decision
When a decision is recorded by the disciplinary authority at the conclusion of the departmental proceeding, the decision is final and cannot be varied by that authority itself or by its successorin-office before it is formally communicated to the Govt. servant concerned. The decision taken by the disciplinary authority is a judicial decision and once it is arrived at it is final.

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Penalties under Rule 11


Penalties-minor & major
There are ten penalties, which are specified under Rule 11 of CCS (CCA) Rules, of which penalties from (i) to (iv) are under minor category and (v) to (ix) are under major category. The penalties under minor category are: (i) (ii) (iii) Censure, Withholding of promotion, Recovery from pay of the whole or part of any pecuniary loss caused by the Govt. servant to the Government by negligence or breach of orders, (a) Reduction to a lower stage in the time scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension, and Withholding of increments of pay.

(iii)

(iv)

The major penalties are: (v) Save as provided for in clause (iii) (a), reduction to a lower stage in the time scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of reduction and whether on expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay, Reduction to a lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Govt. servant to the time scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or Service from which the Govt. servant was reduced and his seniority and pay on such restoration to that grade, post or Service,

(vi)

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(vii) (viii)

Compulsory retirement, Removal from service which shall not be a disqualification for future employment under the Government, and Dismissal from service, which shall ordinarily be a disqualification for future employment under the Government.

(ix)

Rule 11 [of CCS (CCA) Rules)] classifies penalties that can be imposed on Government servants as minor and major. Secondly, several clauses of Rule 11 define and/or enumerate the nature of punishment imposable under the rules. The punishments to be imposed must be those that are enumerated in the rules. The authorities empowered to impose punishments can impose one or the other punishments specified in Rule 11 only and they cannot invent or add to any of the punishments extensively enumerated in the rule itself.

Effect of Warning, Censure etc.


Warning is administered by any authority superior to a Govt. employee in the event of minor lapses like negligence, carelessness, lack of thoroughness, delay etc. It is an administrative device in the hands of superior authorities for cautioning the Govt. employees with a view to toning up efficiency and maintaining discipline. There is, therefore, no objection to the continuance of this system. However, where a copy of the warning is also kept in the CR dossier, it will be taken to constitute an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing instructions relating to communication of adverse remarks and consideration of representations against them. Where a departmental proceeding has been completed and it is considered that the officer concerned deserves to penalized, he should be awarded one of the recognized statutory penalties as given in Rule 11 of CCS (CCA) Rules, 1965. In such a situation, a recordable warning should not be issued as it would for practical purposes, amount to a censure which is a formal punishment and which can only be awarded by a competent disciplinary authority after following the procedure prescribed in the relevant disciplinary rules. The Delhi High Court has, in the case Nadhan Singh v. Union of India also expressed the view that warning kept in the CR dossier has all the attributes of censure. If the intention of the disciplinary authority is not to award a penalty of censure, then no

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recordable warning should be awarded. There is no restriction on the right of the disciplinary authority to administer oral warnings or even warnings in writing, which do not form part of the character roll. If a recordable warning has been issued to an officer as a result of disciplinary proceedings before the issue of this OM and the case of the officer concerned for promotion is still under consideration, he should be treated as having been censured. The officer will also have the right of representation against such warning and such representation shall be dealt with by the competent authority as if it were an appeal under the relevant disciplinary rules. Where the departmental proceedings have ended with the imposition of a minor penalty viz. Censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employee, kept in the sealed cover, will not be given effect to. But the case of the employee concerned for promotion/confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings. If the findings of the DPC are in favour of the employee, he may be promoted in his turn if the penalty is of censure or recovery of pecuniary loss to the Government by negligence or breach of orders. In the case of employees who have been awarded the minor penalty of withholding of promotion, promotion can be made only after the expiry of the penalty.

Withholding of promotion and non-promotion


As per item (iii) in the explanation accompanying Rule 11, non-promotion of Government servant, whether in a substantive or officiating capacity, after consideration of his case, to the service, grade or post for promotion to which he is eligible shall not amount to penalty within the meaning of Rule 11. Promotion is not a matter of right, but the Government servant is entitled to be considered for promotion as per the rules, which govern his service. The rules provide that withholding of promotion can be resorted to by way of punishment. The rules are silent as to whether withholding of promotion can be resorted to for other reasons or not. It has been held by the Supreme Court in High Court of Calcutta v. Amal Kumar Roy that withholding of promotion for any other reason except by way of punishment cannot be taken to be a penalty under Rule 11 (ii). Supreme Courts decision in K. V. Janakiramans case also supports this view.

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Penalty of recovery from pay


Penalty of recovery from pay is special type of penalty, which cannot be awarded in all types of misconduct. The rule makes clear that this penalty can be awarded only in a case where it has been established that the negligence or breach of orders on the part of the Government servant has led to some pecuniary loss to the Government.

Reduction to a lower stage in the time scale of pay


The penalty of reduction to a lower stage in the time scale of pay appearing at clause (iii) (a) has been carved out of the reduction specified at clause (v). While the penalty at (iii) (a) is a minor penalty, the penalty at (v) is a major penalty. As per F.R. 29 (1) an order of penalty of reduction of pay should indicate(i) (ii) (iii) (iv) The date from which the order will take effect, and The period (in terms of years and months) for which the penalty shall be operative; The stage in the time scale (in terms of rupees) to which the Government servant is reduced; and The extent (years and months), if any, to which the period of reduction referred to at item (ii) above should operate to postpone future increments.

The period specified under (iv) cannot exceed the period specified under (ii). It is clear from the above provisions that1. The reduction to lower stage in the time scale of pay is not permissible for an unspecified period or as a permanent measure, and After reduction the pay will remain constant at the stage to which it is reduced, for the period of reduction.

2.

As regards the penalty of reduction of pay at clause (iii) (a) in Rule 11, the clause itself states that the reduction cannot be for a period exceeding three years. Further, this reduction is to be without cumulative effect so to

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say that the period of reduction whatever specified, but not exceeding three years, will not operate to postpone future increments. Another condition is that reduction of pay as at (iii) (a) should not adversely affect the pension payable to the Government servant. Reductions of pay not covered under (iii) (a) will fall under clause (v).

Reduction in rank-import of the expression


The import of the expression Reduction in rank has been examined in the context of the constitutional protection afforded to Government servants under Article 311 (2) in relation to the three major penalties of dismissal, removal and reduction in rank and the constitutional safeguards to be satisfied before the imposition of these three major penalties. In Article 311 (2) the penalty of reduction in rank is classed along with dismissal and removal for the reason that the penalty of reduction in rank has the effect of removing a Government servant from a class or grade or category of post to a lesser class or grade or category. Though the Government servant is retained in service, however, as a result of the penalty he is removed from the post held by him either temporarily or permanently and retained in service in a lesser post. The expression rank in reduction in rank has, for the purpose of Article 311 (2), an obvious reference to the stratification of the posts, or grades or categories in the official hierarchy. It does not refer to the mere seniority of the Government servant in the same class or grade or category. Though reduction in rank, in one sense, might connote the idea of reversion from a higher post to a lower post, all reversions from a higher post are not necessarily reductions in rank. A person working in a higher post, not substantively, but purely on an officiating basis may, for valid reasons, be reverted to his substantive post. That would not, by itself, be reduction in rank unless circumstances of the reversion disclose a punitive element. It is no doubt true that normally penalty of reduction in rank is imposed only so as to bring down a civil servant to a lower time scale, grade, service, or post, held earlier by him before promotion and not below the post, grade, service or time scale to which a civil servant was directly recruited, and it appears, that it is also reasonable to do so..It appears to me that on a fair and proper consideration of rule 11 (vi) of the Rules, the condition precedent for the exercise of power under that rule by way of imposing penalty of reduction in rank to a lower post, is, that the higher post from which the concerned civil servant is sought to be reduced must

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be a promotional post in relation to lower post to which he is sought to be reduced. A direct recruit to a post, it cannot be gainsaid, cannot be reverted to a lower post. It is only a promotee who can be reverted from the promotion post to the lower post from which he was promoted.

Loss of seniority in lower/higher grade


Rule 11 (vi) in express terms does not empower an authority to order loss of seniority either in the higher grade or lower grade to which a civil servant is reduced as a measure of penalty.

Compulsory retirement
The penalty of compulsory retirement at clause (vii) is distinct from premature retirement resorted to for weeding out drones, unworthies and donothings from Government service. Compulsory retirement may be coupled with reduction of pension.

Difference between dismissal and removal


6. . In Shyamlal v. State of Uttar Pradesh [AIR 1954 SC 369], while dealing with the provisions of Article 311 of the Constitution of India it was held that under the Constitution removal and dismissal stand on the same footing except as to future employment. In this sense removal is but a species of dismissal. Removal, like dismissal, no doubt brings about a termination of service but every termination of service does not amount to dismissal or removal. .. .. 8. The only difference in the punishment of dismissal and removal is that in case of dismissal the employee is disqualified from future employment while in case of removal he is not debarred from getting future employment. .

Orders having penal consequences


If an action or order entails forfeiture past service or forfeiture or loss of pay or allowances or seniority or postponement of chances of promotion or if it casts a stigma on the employee affecting his future career, the action or order may be said to be having penal consequences. In such

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circumstances, the action or order entailing penal consequences cannot be said to be an administrative action or order; on the contrary, it would amount to imposing a penalty. And when it amounts to imposing a penalty, certain amount of hearing should precede before imposing such a penalty. For example, break in service is an action, which is penal in nature as it results in forfeiture of past service. An order of forfeiture of past service cannot be made without observing the principles of natural justice. Another example is downward revision of subsistence allowance. It has been held that downward revision of subsistence allowance is not permissible without giving opportunity of representation to the suspended employee. A decision, which affects right of parties, requires predecisional hearing. Recovery of overpayment, held on facts of the case, could not be effected without giving opportunity of hearing. The Tribunal explained further: A system governed by rule of law reckons no decisions without an adjudication. Executive authorities cannot approximate themselves to oracles, or arrogate to them to ordinances. This is a basic requirement of natural justice, which has always been a part of adjudicatory process. Normally an employee who is medically unfit for service would be invalided or discharged. In place of invalidating or discharging him from service, if he were absorbed in a lower post, such absorption would not amount to punishment or casting a stigma.

Imposition of penalty
Imposition of penalty under the rules is a quasi-judicial function and only the prescribed punishing authority can do it. Punishing authority should not obtain guidance or comment of any superior or subordinate authority in this regard.

Quantum of penalty
The Rules do not particularize penalties. The penalties enumerated in the Rule are graded only. Quantum of punishment should be commensurate with the gravity of the misconduct. It should not be shockingly disproportionate. Punishing authorities should be more nor less paying than by self offences weighing and the punished should not be made to lament O judgment! You have fled to brutish beasts and men have lost their reason.

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Logic of Punishment
"Governments without the sword are but words, and of no strength to secure a man at all."

From time immemorial certain acts were forbidden in the human society and the society, by moral laws, prescribed punishment for the commission of these forbidden acts. For e.g., the Ten Commandments as per the Old Testament forbid the acts such as murder, adultery, theft, false accusation and so on. The moral laws, also known as God's laws, also prescribed punishments for commission of these forbidden acts. The punishments included death, injury, banishment, fine and so on. "Whoever hits a man and kills him is to be put to death. But if it was an accident and he did not mean to the kill the man, he can escape to a place, which I will choose for him and there he will be safe. But when a man gets angry and deliberately kills another man, he is to be put to death. If some men are fighting and hurt a pregnant woman so that she looses her child, but she is not injured in any other way, the one who hurt her is to be fined. But if the woman herself is injured, the punishment shall be life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, bruise for bruise." Recompense of the loss suffered by the opposite party by the party, which caused the loss, was also ordered though strictly not as a penalty. "If there is a fight and one man hits another with a stone or with his fist, but does not kill him, he is not to be punished. But if the man who was hit has to stay in bed, but later is able to get up and walk outside with the help of a stick, the man who hit him is to pay for his lost time and take care of him until he gets well." Thus went the law and justice in olden times. It is almost the same law and justice that prevails even now, of course with necessary changes having been made with the progress or advancement of human society.

Punishments under IPC


Section 53 of the Indian Penal Code prescribes punishments that can be imposed under that Code, viz. death, transportation, imprisonment (rigorous and simple), forfeiture of property and fine. As per Section 2 of that code every person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he shall be guilty within India.

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Departmental penalties
Similarly, Rule 11 of CCS (CCA) Rules classifies departmental penalties that can be imposed on Government servants as minor and major. Secondly, several clauses of Rule 11 define and/or enumerate the nature of punishment imposable under the rules. Several other statutes also prescribe punishment or penalty for infringement of the provisions of those statutes.

Administration of justice
Law is the commander of what people should do and the forbidder of what people should not do. But law, without its implementation or enforcement, is useless just like an unused sword, rusty and ineffective to inflict any injury. Fond fathers keep sticks in the sight of their children to create terror in them. But the stick becomes more mocked than feared when they are not used when they are to be used. The Duke in Shakespeares Measure for Measure laments: We have strict statutes and most biting laws, the needful bits and curbs to headstrong steeds, Not to use, in time the rod becomes more mocked than feared; so our decrees, dead to infliction, to themselves are dead! Law is intended to strike terror in criminals and offenders and to bring them to justice. Law should not stand terrified at the sight of criminals and offenders rendering itself a scarecrow that fears the birds of prey. Not to use the sword of punishment in time or in other words, if its use is inordinately delayed, the whole proceedings against the charged man becomes vitiated and stale, leading to questioning of the very logic and propriety of punishment. "But this new governor awakes me all the enrolled penalties which have, like unused armour hung by the wall so long that nineteen zodiacs have gone round and none of them been worn; and for a name, now puts the drowsy and neglected act freshly on me. It is surely for a name", complains a character in 'Measure for Measure'. In this case, the act of offence alleged on the character as a fresh one, was committed nineteen zodiacs back. The penalties specified by law were there all these nineteen zodiacs, but were hung by the wall just like armours, which are not in use. And after a lapse of nineteen zodiacs, he has been charged for the drowsy and neglected act and the character accuses that this has been done not in the interest of law or justice but to earn a name for the authority which charged him.

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Well settled principles of punishment


There are some well-settled principles regarding punishment. It should be proportionate to the gravity of the offence or misconduct and that it should not be disproportionate. ["The size of punishment, proportioned to the crime or misconduct, must be as severe or light as that which makes it."] It is only the prescribed punishing authority who can impose a penalty on a Government servant. Imposition of penalty is a quasi-judicial function and the punishing authority should not obtain guidance or comment of any superior or subordinate authority in this regard. When a decision is recorded by the disciplinary authority at the conclusion of the departmental proceeding, the decision is final and cannot be varied by that authority itself or by its successorin-office before it is formally communicated to the Govt. servant concerned. The decision taken by the disciplinary authority is a judicial decision and once it is arrived at it is final. Whenever a statutory penalty is imposed on a Government servant, an entry to that effect is to be made in the Service Book of the concerned Government Servant. It is seen that in Ordnance Factories, the penalty imposed on an employee of the factory is also advertised through Factory Order.

Logic of punishment
Departmental proceedings that may culminate in the imposition of penalty or otherwise are considered a matter of discipline within the organization. It is argued that these proceedings are imperative to the maintenance of discipline in the organization and to maintain its reputation and character. It is to be noted that organizations are made up of individuals. Those who persuade themselves to believe that a multitude of men can be induced to live by the rule of reason are dreamers of dreams and of the golden age of poets. A common power and an element of force is required to keep them all in awe for it is difficult to find a man who by nature sticks to the path of virtue. Penalty keeps the people under control, penalty protects them, penalty remains awake when people are asleep, so the wise have regarded punishment as a source of righteousness.

Deterrent Punishment
The famous Indian Poet Kalidasas work titled Meghdoot starts with the depiction of a punishment meted out to one Yaksha who was in the service of Vaishravana, the king of a kingdom somewhere in the foothills of Himalayas. Yaksha was employed as a bhandarapalaka (storekeeper). It is told that this Yaksha one-day committed an error in the discharge of

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duties, upon which Vaishravana, the king ordered him to be transported to Ramagiri Ashram in the South. Yaksha was newly married and he came to commit the error in the discharge of his duties as he was immersed in thoughts about his newly wedded beautiful wife. In fact he remembered his wife so much that he forgot his duty. Probably the king came to know of this fact before he inflicted the punishment. And for Yaksha, this punishment was too severe, as it was not mere transportation to a distant place, but also to live away from his dear wife till the punishment period is over. The message that the king wanted to signal to others in his service by inflicting such a harsh penalty on Yaksha was that whatever might be the reason, one could not afford to ignore his duties. Duty comes first and not the wife, howsoever pleasing and charming she might be. The penalty therefore here was exemplary 5 , so to say that it also served as a warning to all those who were like-minded with Yaksha, apart from making the repetition of such misconduct a bad bargain for the offender. This theory of punishment is known as 'deterrent theory. The main purpose of advertisement of penalties through Factory Orders is to send out a warning to the people of the flock of the punished that the wrongdoers will meet the same justice. "Then everyone else will hear what happened; they will be afraid, and no one will ever again do such an evil thing." If the evildoer is not punished or is left scot-free, many would dare to do the same evils. Those many had not dared to do that evil if the first that did infringe the edict had answered for his deed. When law sleeps over the punishable evils, many inferences would be drawn. Now the law is awake, takes note of what is done. and awards an exemplary punishment to the evildoer so that such evils are not conceived, hatched or grown and the evildoer, answering one foul wrong does not live to act another, "and one death might prevent many" (where the punishment is as extreme as death).

Is deterrent punishment really deterrent?


The first human creations in the world according to Bible are Adam and Eve. The god forbade them not to eat a particular fruit, i.e. the fruit of sin. Yet they ate the fruit and the god punished them. Probably that was the beginning of punishment. It is beyond imagination how many have been punished thereafter in human society for various crimes or offences. The critics of deterrent penalty ask a pertinent question: Did those
"he arrests him on it, and follows the close rigour of the statute to make him an example"Shakespeare, Measure for Measure
5

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punishments stop evils or crimes in society? Are not crimes on increase even according to the crime graphs produced by various agencies that enforce law? They say that by deterrent punishments the criminals get hardened and they are no longer afraid of punishments and take the punishments very lightly. "Bid that welcome which comes to punish us, and we punish it seeming to bear it lightly."

Preventive punishment
Departmental penalties like Compulsory retirement, removal and dismissal from service are preventive punishments, so also the punishments under IPC like exile, imprisonment and death. By these penalties/punishments the delinquent or the offender is disabled from repeating the misconducts or offences. The law threatens the persons with some pain if they do certain things, intending thereby to give the people a new motive for desisting from such activities. Though Rule 11 of CCS (CCA) Rules only lists the penalties that can be imposed on a Government servant and do not particularize penalties for various misconducts, there is a provision in the Rule as per which in every case in which the charge of possession of assets disproportionate to the known sources of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty of removal from service or dismissal from service shall be imposed. This provision is intended to prevent the repetition of misconduct of possession of assets disproportionate to the known sources of income or of accepting any illegal gratification.

Reformative Punishment
In Shakespeares Measure for Measure, Isabel, a sister pleads to the judge: I have a brother who is condemned to die; I do beseech you, let it be his fault. What is advocated in these two lines is the reformative theory of punishment. What is implied is that the criminal or offender does not cease to be a human being even after committing the crime or offence. He must be taught and educated to lead a normal life. While awarding the punishment the judge must study the background of the criminal, his age, the circumstances under which he committed the crime, the object with which he committed the crime and so on. Correction and instruction both must work, as told by the Duke in the same play. In India the

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Sarvodaya/Socialist leaders like Jai Prakash Narayan, Vinoba Bhave and Madhu Limaye etc. stood for reformative theory of punishment and they had tried hard to tame the dacoits of Chambal Valley etc. by their reformative theory. Phoolan Devi, who became a Member of the Lok Sabha, was one of the criminals reformed to lead a normal life. The Probation of Offenders Act, 1958 is a milestone in the progress of modern liberal trend of reform in the field of penology. The Act distinguishes offenders between 21 years of age and those above that age and offenders who are guilty of having committed an offence punishable with death or imprisonment for life and those who are guilty of a lesser offence. This Act is meant to reform juvenile offenders with a view to prevent them from becoming hardened criminal by providing an educative and reformative treatment to them by the Government. Provisions enabling reformation of criminals can be found in other Codes as well, for e.g. Sections 27 and 360 of the Code of Criminal Procedure.

Hate the sin and not the sinner


Mahatma Gandhi, in his work 'My Experiments with Truth', wrote as follows: Man and his deed are two distinct things. Whereas a good deed should call forth approbation and wicked deed disapprobation, the doer of the deed, whether good or wicked, always deserves respect or pity as the case may be. 'Hate the sin and not the sinner' is a percept which, though easy enough to understand, is rarely practised, and that is why the poison of hatred spreads in the world.

Retributive Punishment
Retributive theory is based upon revenge and it existed in primitive societies. The very mercy of the law cries out, most audible, even from his proper tongue, An Angelo for Claudio, death for death. Thus went the revengeful punishment. One who was wronged was given liberty to have his revenge against the wrongdoer. Revenge is wild justice and is no more operative in the modern society.

Basic qualities of Punishing authorities and punishment orders


From olden days infliction of punishment or imposition of penalty has been considered to be a very important function and that the punishing

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authorities should have some qualities. In the legal terminology this function is called a judicial or quasi-judicial function, depending upon the authority which imposes the punishment, i.e. whether it is a judge or a departmental authority. The power or right to punish is symbolically called holding of the sword of heaven or justice. It is told that he who holds the sword of heaven shall be as pure as severe, should set an example to others by his own life. He should be free from bias or predisposition of mind, should not try to weed the evils of others when he allows his own to grow. It is told that robbers will have authority for robbery when the judges themselves steal. Right or power to punish carries with it a duty to act in a fair manner. Punishment orders must be speaking orders. Recording of reason by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal."

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Quasi-judicial functions
Disciplinary Proceedings are quasi-judicial in nature
As is well known and settled by courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature. An effort is being made in this write up to find out as to what is meant by quasijudicial and what are the characteristics or attributes of quasi-judicial functions.

Quasi-judicial-meaning of
Originally, any authority other than courts was described as 'administrative authority. When the administrative authority was required to make decisions affecting the rights of parties, it was enjoined that the matter in question must be decided according to judicial forms and in accordance with the principles of natural justice. Soon it was realized that the administrative authority, when it decides a question according to judicial forms, could not be described as the one performing judicial functions because that was an attribute reserved exclusively for courts of law, nor it could described as pure administrative authority because it was required to act judicially and in accordance with the principles of natural justice. Thus the word quasi-judicial came to be invented to describe those functions which are not exactly judicial but which have some (not all) trappings or attributes of a judicial function.

Quasi-judicial functions vis--vis administrative functions


A quasi-judicial function is one, which stands midway between a judicial and an administrative function. It differs from purely an administrative act in the following respects: A purely administrative act does not decide any rights of private parties though it may affect them. But a quasi-judicial act determines private rights with a binding force. An administrative act may be non-statutory and does not necessarily require statutory authority. But a body is called quasi-judicial only when it has statutory authority to discharge the function in question.

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An administrative authority has no procedural obligation. But in case of quasi-judicial function, the law requires that the rules of natural justice must be applied in discharging a quasi-judicial function. While an administrative function may be delegated, a quasi-judicial function cannot be delegated in the absence of express statutory provision. [The Law Ministry has advised that an officer appointed to perform the current duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers] The decisions of the administrative authorities are usually subjective, in the sense that they are reached without applying any standard at all, except that of expediency or policy. But quasi-judicial authorities are required to decide objectively, i.e. upon consideration of the proposal and the evidence adduced by the parties in support of either. Where the authority has to act exclusively upon the evidence, the decision is called quasi-judicial. The essential test for a quasi-judicial authority, therefore, is that it has a duty to follow the judicial approach in determining the questions of fact involved in the case or matter before such authority.

Circumstances in which duty to act judicially arise


The duty to act judicially may arise in widely different circumstances which it would be impossible, and, indeed, inadvisable to attempt to define exhaustively. It may only be stated briefly that the duty may arise expressly as well as impliedly. However, some illustrative examples of circumstances in which duty to act judicially may arise can be given as follows: When the statute requires the authority to act judicially, it is a clear case of quasi-judicial function. Even an administrative body in ascertaining facts or law may be under a duty to act judicially notwithstanding that its proceedings have none of the formalities of and are not in accordance with the practice in court of law. From the expressions such as To arrive at a decision justly and properly, or after due inquiry, or after giving an opportunity of making a

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representation, or after giving a reasonable opportunity of showing cause, used in the context of legislations, quasi-judicial function can be inferred.

Examples for quasi-judicial functions


The function of determining an offence and to award punishment for it is obviously the functions of a court. Hence where such powers are vested in some statutory authority other than a court, the function of the authority must be held to be quasi-judicial. The principle has been extended to any disciplinary proceedings penalising an individual in his civil rights. An appellate function, even where the appeal is from an administrative order and the appellate power is vested in another administrative authority, has been held to be a quasi-judicial function. The same principles has been extended to the power of revision vested in a superior authority, whether the party aggrieved has a right to apply for such review or revision or the power is to be exercised suo motu. [As is well known and settled by courts, disciplinary proceedings, against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as disciplinary/appellate/ reviewing authorities under the relevant rules and the orders issued by such authorities should have the attributes of a judicial order.] Authorities, which are by law invested with the power to affect the property of a person (employee) or to deprive a person of his profession, business or calling, are essentially quasi-judicial authorities and they are bound to give such person(s) an opportunity of being heard before it proceeds, and this rule is of universal application.

Delegation of quasi-judicial function


A well-established principle in case of delegation of quasi-judicial function is that where a power is entrusted to the personal judgment of a quasijudicial authority, such trust cannot be delegated.

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However, a partial delegation has been conceded. It may not be practically possible for a quasi-judicial authority to personally hear the evidence that may be presented before it. It has accordingly been conceded that it is permissible for such authority to delegate the function of hearing parties and taking evidence, provided the authority itself gives the decision after final hearing. The principles the one who decides must hear and the hearing is the hearing of evidence and arguments have undergone some changes. It is now permissible to appoint hearing officers or inquiry officers to hear and take the evidence. Thus it can be said that the function of making a quasi-judicial decision cannot be delegated to another person, in the absence of statutory provision authorizing such delegation. On the other hand, in the absence of anything in the governing statute to require that the authority that decides must also hear, natural justice is not denied in delegating the power to inquire and report to a subordinate authority, provided the quasi-judicial authority retains to itself the power to decide, after applying his mind to the findings of the Inquiry Officer as well as the representation on the Inquiry Officers findings of the person to be affected. This view has been taken in the context of Art. 311 (2). In fact CCS (CCA) rules authorize the disciplinary authority to conduct the inquiry itself or to appoint an inquiry officer to conduct the inquiry. Further, as per the rules, opportunity is to be given to the charged employee to represent on the findings of the Inquiry Officer. The final decisions with regard to whether the charges are established or otherwise, whether any penalty to be imposed or not and if so, what penalty, etc. are to be taken by the disciplinary authority itself. But the duty to hear cannot be delegated where the statutory provisions confer the person to be affected a right to be heard in person by the quasijudicial authority specified by the statute.

No interference by delegator
Where the statute authorises the delegation of a quasi-judicial power (just as in the case of delegation of power to inquire and report), the delegator cannot reserve to himself any power to interfere with the exercise of the quasi-judicial function by the delegate or to impose his own decision upon the delegate. But the reservation of administrative control, e.g. the time

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within which the power to be exercised, would not vitiate the delegation. While it would be permissible for a disciplinary authority to lay down a time frame for completion of an inquiry, it would not be permissible for him to interfere with the conduct of inquiry, e.g. to ask the inquiry officer to report that charges are established or otherwise.

Abnegation of quasi-judicial duties


The principle that any statutory power, if specifically vested in a certain person, must be exercised by that very person and no other, applies to quasi-judicial power. The quasi-judicial authorities cannot decide according to instructions received from some other person or body or under the dictation of some other person or persons to whom authority is not given by law. Instances have also come to notice where, though decisions in disciplinary/appellate cases were taken by the competent disciplinary/appellate authorities in the file, the final orders were not issued by that authority but only by a lower authority. the disciplinary/ appellate /reviewing authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is, therefore essential that the decisions taken by such authorities are communicated by the competent authority under their own signatures, and the order as issued should comply with legal requirements

Application of the principles of natural justice


A quasi-judicial authority is not bound by the rules of evidence, but is bound by the principles of natural justice. The essence of these principles can be told in the following words. Those whose duty is to decide must act judicially. They must deal with the question referred to them without bias and they must give to each of the parties the opportunity of adequately presenting the case made. The decision must come to the spirit and with the sense of responsibility of a quasi-judicial authority whose duty is to mete out justice. A quasi-judicial authority must hear both the sides and must not hear one side in the absence of the other. If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them It follows that the judge or whoever had to adjudicate must not hear evidence or receive representations from one side behind the back of the other.

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It is the fundamental principle of natural justice that in the case of quasijudicial proceedings, the authority empowered to decide the dispute between the opposing parties must be one without bias towards one side or other in the dispute. Judges, like Caesars wife, should be above
suspicion.

Minimum of Hearing
At the lowest level of the quasi-judicial procedure stands the cases where the statute confers upon the party to be affected only a right to make a written representation against the penalty proposed [e.g. proceedings under Rule 19 (1) of CCS (CCA) Rules] or an explantion to the charges brought against him [e.g. proceedings under Rule 16 of CCS (CCA) Rules]. In the result, we have different kinds of hearing prescribed by different statutes or by different provisions of same statute. Therefore, what hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent.

Self contained order


The Supreme Court, in the case of Mahavir Prasad v. State of UP (AIR 1970 SC 1302) observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. The necessity to record reason is greater if the order is subject to appeal. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self contained, speaking and reasoned orders conforming to the aforesaid legal requirement. No authority can reach conclusions without reasons. Reasons must be discernible on the face of the order as the party against whom an order is made is entitled to know the reasons upon which an order against him has been made. These are elementary requirements of law.

Decision taken by an officer in exercise of quasi-judicial function-whether can form basis of disciplinary proceedings against the officer?

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In Union of India v. K.K. Dhawan Supreme Court has ruled that disciplinary action can be taken in the following cases:
(i)

Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty; If there is prima facie material to show recklessness or misconduct in the discharge of his duty; If he has acted in a manner which is unbecoming of a Government servant; If he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of statutory powers; If he had acted in order to unduly favour a party; If he had been actuated by corrupt motive, however small the bribe may be because Lord Coke said long ago though the bribe may be small, yet the fault is great.

(ii)

(iii)

(iv)

(v) (vi)

The Apex Court added that the above catalogued are not exhaustive and that for a mere technical violation or merely because the order is wrong and the action is not falling under the above enumerated instances, disciplinary action is not warranted. The Court further cautioned that each case will depend upon the facts and no absolute rule can be postulated.

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Hearing Procedure - Taking evidence


Even God did not pass a sentence upon Adam, before he was called upon to make his defence.

uthorities, which are by law invested with the power to affect the property of a person (employee) or to deprive a person of his profession, business or calling, are bound to give such person(s) an opportunity of being heard before it proceeds, and this rule is of universal application. Article 311 (2) of the constitution of India gives a mandate to the principles of natural justice by providing that a civil servant shall not be dismissed or removed from service or reduced in rank until after an enquiry in which he has been informed of the charges against him and has been given a reasonable opportunity of being heard in respect of those charges. Rule 14 (1) of CCS (CCA) Rules also requires that no order imposing any of the major penalties shall be made except after holding an inquiry. Rule 16-1A also requires holding of inquiry in certain cases.

What is reasonable opportunity of being heard?


Reasonable opportunity of being heard used in Art. 311 (2) would mean

Opportunity to deny the charges and to establish innocence The delinquent must be given reasonable time and opportunity of meeting the allegations contained in the charge sheet. Opportunity to defend himself by examining witnesses (including himself, if he so desires) and cross-examining the witnesses produced against him. The prosecution witnesses must be examined in the presence of the delinquent, so that he may hear their evidence in support of the charge and cross-examine them before he is called upon to enter his defence. The opportunity to cross-examine the prosecution witnesses must be effective. Natural Justice is denied where the delinquent is not allowed to call or examine material defence witnesses, or to examine himself.

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If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them It follows that the judge or whoever had to adjudicate must not hear evidence or receive representations from one side behind the back of the other. Opportunity to the delinquent Govt. servant to cross-examine the prosecution witnesses is an important aspect and part of departmental inquiries. If this opportunity is denied, there is very much likelihood of the inquiry proceedings being declared as arbitrary and vitiated. Reasonable opportunity of being heard as used in Art. 311 (2) to include opportunity to examine/cross examine the witnesses and to rebut or controvert the evidences produced by the opposite party. One of the basic requirements of departmental inquiries is that no information is received or recorded behind the back of the delinquent Govt. servant. The principle that a fact sought to be proved must be supported by statements made in the presence of the person against whom the enquiry is held and that the statements made behind the back of the person charged, are not to be treated as substantive evidence is one of the basic principles, which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act. What hearing is fair or what amount of hearing is required to be given in a particular case will depend upon the provisions of statute in question, the subject matter of the hearing and the nature of the right to be affected and the like. The position was thus expressed: It can be fair without the rules of evidence or forms of trial. It cannot be fair if apprising the affected and appraising the representations is absent.

Evidence
Evidence means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents produced for the inspection of the Court; such documents are called documentary evidence.

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Expert evidence
Expert evidence, oral or documentary, is obtained on special skill or processional knowledge, which may be relevant to decide the issues in a case. Examples are opinion of a handwriting expert, a medical practitioner, architect, engineer, and the like.

Proof of handwriting
The handwriting on a document may be proved either by direct evidence or by opinion evidence. Direct evidence means proof of a document by calling the person who wrote or signed the document or a person in whose presence the document was written or signed. Opinion evidence means the evidence of a person who is familiar with the handwriting or the signature of the person who is supposed to have written or signed the document; by comparing the handwriting with some admitted or known writing of such a person; by calling a hand-writing expert to examine the disputed handwriting/signature; or by any cogent circumstantial evidence. If the matter is referred to a handwriting expert he has to be examined during inquiry and is subjected to cross examination by or on behalf of the accused. The probative value of such evidence will depend upon the reasons stated by the handwriting expert and the nature and points noticed by him on which the two handwritings differ. The extent of similarity between the two is no criterion for arriving at the correct conclusion. Except where the inquiry officer is familiar with the handwriting or signature of the person supposed to have written or signed it, he should not rely on his own judgment alone in the case of a disputed document.

Tape records of speeches


It was held in Z. Bukhari v. B.R. Mehra that the tape records of speeches are documents as defined in Section 3 of the Evidence Act which stand on no different footing than photographs and they are admissible in evidence on satisfying the following conditions: The voice of the person alleged to be speaking must be duly identified by the matter of the record or by others who knew it.

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Accuracy of what was recorded had to be proved by the maker of the record and satisfactory evidence, direct or circumstantial, had to be there so as to rule out possibilities of tampering with the record. The subject matter recorded had to be shown to be relevant according to the rules of relevancy found in the Evidence Act.

When does a document become reliable?


A document being an inanimate thing necessarily comes to the cognizance of judicial or quasi-judicial authorities through the medium of human testimony; for which reason it has been denominated as probata mortua (dead proof) in contradistinction to witnesses who are said to be probata viva (living proof). Mere production of a document without the testimony of the custodian of the same cannot convert it into documentary evidence forming part of the proceedings particularly when there is no consent or admission by the other side. It cannot be relied on or accepted in evidence and marked as part of the case for being relied on in the inquiry. If such a procedure is allowed to be followed in the departmental inquiries there would not be any safety for the delinquent employees.

Proving the contents of the documents


Even the acceptance of a document as part of the record of the disciplinary proceedings will not establish the truth of what is stated in that document. The production of a document only for the sake of formally introducing it as a piece of evidence will only amount to proving that such a document exists. It will not imply that the contents of that document have been proved. In any case no such document can be relied upon until the delinquent Govt. servant had been given an opportunity to exercise his right of cross examination to impugn the content of the document or the inference that can be drawn from the document. This would be possible only if a knowledgeable witness is examined.

Public documents
Public document is a document, which can be made use of by general public by way of inspection or making copies etc. Voters list is a public document and genuineness of entry made therein has to be presumed unless presumption is displaced.

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Circumstantial evidence
Circumstantial evidence is based on circumstances, which get established by either oral or documentary evidence on the point under inquiry. Though the circumstantial evidence has to be assessed with great caution but it will be wrong to think that circumstantial evidence is weak evidence. A well-knit circumstantial evidence can reasonably lead to a correct conclusion. For the purpose of a departmental inquiry, complaint, certainly not frivolous, but substantiated by circumstantial evidence, is enough.

Primary evidence
Primary evidence is the one derived from the original source. In other words, in the case of documents, the evidence based on the original document; and in the case of oral evidence, the statement made by the person who has personal knowledge of the matter.

Secondary evidence
Secondary evidence is the evidence drawn from the source, which is not primary. In the case of documents the secondary evidence is that which is drawn from certified copies or Photostat copies. In oral evidence, the hearsay evidence will fall in this category.

Hearsay evidence
In department inquiries, the hearsay evidence is not totally inadmissible. All materials, which are logically probative for a prudent mind, are permissible. There is no allergy to hearsay evidence provided it has some reasonable nexus and credibility.

Examination in chief
The examination of witness by the party who calls him is known as examination-in-chief. It is a process by which a witness narrates before the Inquiry Officer the facts, which are within his personal knowledge and are relevant to the matter under inquiry. The normal procedure is that a witness should state whatever he has to say, verbally and in the presence of the inquiry officer and the charged employee. However, where the statement of a witness recorded earlier during investigation or preliminary

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enquiry is read over to him in the presence of the inquiry officer, marked on his admission and a copy given to the charged officer and he is given an opportunity to cross examine the witness, it is not necessary that the witness should repeat verbatim the contents of the statement given by him earlier.

Supply of copies of documents


It is not necessary that each and every document must be supplied to the delinquent government servant facing the charges. Instead, only material and relevant documents are necessary to be supplied to him. If a document even though mentioned in the memo of charges is not relevant to the charges or if it is not referred to or relied upon by the inquiry officer or the punishing authority in holding the charges proved against the government servant, no exception can be taken to the validity of the proceedings or the order. But it is unjust and unfair to deny the government servant copies of statements of witnesses examined during investigation and produced at the enquiry in support of the charges levelled against the government servant.

Detailed questioning of delinquent Govt. servant at the beginning of the enquiry


In domestic enquiries the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross examine the said evidence and then should the workman be asked whether he wants to given any explanation about the evidence led against him. It is not fair in domestic enquiries, that the employee should be, at the very commencement of the enquiry, closely cross examined even before any evidence is led against him.

Recall of witness
It is clear from sub-rule (15) of Rule 14 of CCS (CCA) Rules that the discretion that has been conferred on the inquiring authority to call for new evidence is only before the close of the case on behalf of the disciplinary authority. It is not permissible to let in new evidence or to summon any fresh witness to fill up the gap in evidence that is on record when the case is closed on behalf of the disciplinary authority.

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No legal liability on department to produce defence witness


The delinquent Govt. servant named a Govt. servant as defence witness. The Inquiry officer issued summons to the named person. He however declined to appear as a defence witness. The department had no legal liability in disciplinary proceedings to produce witness on behalf of the charged employees where such witnesses decline to depose before the Enquiry Officer. The disciplinary proceedings might get vitiated only if the request of a delinquent official for summoning a witness on his behalf is not even considered by the Enquiry officer or the Disciplinary authority as the case may be. However, on summoning the witness who may be working in a Govt. office, if the witness agrees to come forward for giving evidence, but the Head of office is reluctant to relieve him, there could be a case of denial of natural justice to the delinquent official in certain circumstances.

Disallowing questions
It is a basic principle that in any inquiry the evidence that is let in shall have relevance to the real scope of the matter in issue. At the same time, the Inquiry officer has to be careful while disallowing any question as not being relevant, for it is likely to create an impression of bias. Hence any question that an Inquiry Officer disallows must be the one which is ex facie irrelevant. Even in such a case, the Inquiry Officer has to record the question and make a note in the proceedings that the question is being disallowed as not relevant to the issue.

Change of Inquiry Officer in the middle of proceedings


A reading of Rule 14 (22) of the CCS (CCA) Rules would make it clear that a change of Inquiry Officer in the middle of enquiry is permissible. The new Inquiry Officer may act on the evidence recorded by his predecessor or partly recorded by the predecessor and partly recorded by himself. In case the new Inquiry Officer is of the opinion that further examination of any witnesses whose evidence had already been recorded, is necessary, such witness could be recalled, examined and cross examined.

Request for inquiry at the old station


On transfer to Kirkee, the applicant did not move there on ground of ill health. Produced Medical certificate in support of his illness. He was charged for unauthorized absence and enquiry was fixed at Pune. He

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made repeated pleas for holding the enquiry at the place (Cannanore) from which he was transferred. These pleas were not considered and ex parte enquiry was conducted at Pune. When the applicant had urged physical ailment as well as financial difficulty in support of his request for the enquiry to be held at the place from which he was transferred, the request should have been agreed to. In departmental proceedings real and effective opportunity is to be afforded to the delinquent employee so as to establish his innocence, failing which, it would amount to denial of reasonable opportunity for defence, thereby violating the principles of natural justice.

Service of Notice
Notice of inquiry sent by Regd. Post to the Govt. servant against whom disciplinary action is initiated could not be served on the Govt. servant and was returned with an endorsement by the postman as left. The endorsement was not attested by the Post Master and there was no indication that the Govt. servant had refused to accept the notice. Accordingly, it cannot be presumed that the Govt. servant had absented himself from the enquiry proceedings deliberately and despite information. It was necessary for the respondents to get the notices pasted at the address left by the applicant, in the presence of witnesses or to publish the notices at least for one appearance, in the newspapers. Since no action was taken to ensure even constructive service of notice on the applicant, the ex parte proceedings are vitiated howsoever strong the evidence against the applicant may be.

Evidence of an injured person


Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution." On principle the evidence of a victim of sexual assault stand on par with evidence of an injured person. Just as witness who has sustained an injury (which is not shown or believed to be self inflicted) is the best witness in the sense that she is least likely to exculpate the real offender, the evidence of a victim of sex offence is entitled to great weight, absence of corroboration notwithstanding

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Standard of proof required


In the case of disciplinary enquiry, technical rules of evidence have no application. The doctrine of proof beyond doubt has no application. Preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court (Supreme Court) is to see whether or not the delinquent has committed misconduct. The test laid down by various judgments of this Court (Supreme Court) is to see whether there is evidence or record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion.

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Role of Presenting Officer


Appointment of Presenting Officer

resenting Officer is appointed to present the case on behalf of the disciplinary authority in support of the articles of charge. Appointment of Presenting Officer is not mandatory. It is left to the discretion of the disciplinary authority to decide whether to appoint a Presenting Officer or otherwise. The relevant provision from CCS (CCA) Rules with regard to appointment of Presenting Officer is reproduced below: (c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding any inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge. (emphasis added)

In similar context, the High Court of Karnataka has held as follows: 5. The use of the expression may in the sub-regulation having regard to the context in which it is used, in my view, cannot be read as containing mandatory direction to the Disciplinary Authority to appoint the Presenting Officer to present on its behalf the case in support of articles of charge. It is used purely as permissive and does not make obligatory upon the Disciplinary Authority to exercise the power and appoint a Presenting Officer in all domestic enquiry proceedings. In view of that, mere failure to appoint a Presenting Officer would not itself vitiate the enquiry.

A Govt. servant or a legal practitioner


Presenting Officer may be a Govt. servant or a legal practitioner. If the Presenting Officer appointed is a legal practitioner, the opposite party can also engage a legal practitioner as a matter of right for helping the delinquent Govt. servant. In other cases, the disciplinary authority may allow the obtaining of such assistance if the facts and circumstances of the case so warrant e.g. where the matter has legal overtones or the issues involved are

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complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.

Presenting Officer is essentially a man of the disciplinary authority, unlike Inquiry Officer, who should be neutral. Presenting Officer should study the case thoroughly, visit the site of incident, if necessary, and discuss with the prosecution witnesses on what they have witnessed. He should link up their statements and build up a case and find out whether there is any missing link. He should collect all evidence for establishing the case and decide what documents to be produced, and whom to be produced as witness. He should frame questions for oral examination in such way that that answers to the questions would help establish the prosecution case. Unwanted or irrelevant questions should be avoided. Questions should be framed in sequence of the events and examination of witnesses also should be arranged accordingly. It is not necessary to follow the order of witnesses given in the annexure to the charge sheet.

Leading questions in examination-in-chief


Presenting Officer is not permitted to put leading questions in examination. He may omit questions or evidence on facts that are admitted by the delinquent Govt. servant. He should prepare questions in advance of the examination. During enquiry, he should not waste the time of others by thinking for long period over what questions to ask and how to frame them. In other words, enough homework is to be done by the Presenting Officer. Presenting Officer should not try to get adjournments for the case. He should keep all his witnesses readiness for examination and crossexamination.

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Production of evidences
If documents are to be produced, Presenting Officer should produce them through his witnesses. If any document to be produced, signatory to the document, if any, must be produced as witness so that the other party gets opportunity for cross examining the author or signatory to the document. This is not necessary in case of public documents. Presenting Officer should anticipate the defence of the delinquent Govt. servant. He should be ready for re-examining his witnesses and for crossexamining the defence witnesses. If required, he should seek permission for and produce additional evidence. If the delinquent Govt. servant or defence assistant asks irrelevant question in cross-examination, or either of them tries to intimidate or harass the prosecution witness, Presenting Officer should raise objection and get the objection recorded. He should submit a brief at the close of enquiry. Presenting officer is not entitled to examine the delinquent Govt. servant. However, he is entitled to cross-examine the delinquent Govt. servant, if the delinquent Govt. servant himself is a defence witness. If the delinquent Govt. servant is not a defence witness, Presenting Officer is not entitled to examine or cross-examine the delinquent Govt. servant. A person who is a witness in a case cannot be appointed as presenting officer in that case. This is true in case of Inquiry Officer also.

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Role of Inquiry Officer


Who can conduct the Inquiry?
The disciplinary authority itself may conduct the Inquiry or it may appoint an inquiry officer to conduct the inquiry. The authority whichever conducts the inquiry is required to inquire into the truth of imputations of misconduct or misbehaviour against the delinquent Govt. servant. The Inquiry Officer must be sufficiently higher in rank to the delinquent Govt. servant. In some departments retired Govt. servants are also appointed as Inquiry Officers.

Role of Inquiry Officer


The Inquiry Officer who is a delegate of the disciplinary authority performs quasi-judicial function. His main role is to record/take on record oral and documentary evidence produced by the prosecution and the defence and to analyze the evidences to arrive at a reasonable and logical conclusion as regards to the guilt or otherwise of the delinquent Govt. servant. When he analyzes the evidence or record, he should not use any extra material collected behind the back of the delinquent Govt. servant or import his own personal knowledge into the evidence. The inquiry officer should confine himself to the charges against the delinquent and must not base his findings on extraneous facts or considerations. It is not his interest to see that somehow the prosecution case is proved. On the contrary, he should be neutral and fair to both the sides. The onus of proving the charge lies on prosecution; but not on the Inquiry Officer. The burden of proof to establish a charge against an employee is on the employer. a tribunal is wrong if it places the burden of establishing his innocence on the public servant.. The inquiry officer is not required by the rules to recommend any penalty. It is the disciplinary authoritys prerogative to decide the quantum of penalty to be awarded to the delinquent Govt. servant. The Inquiry Officer is not supposed to record finding on any charge, which has not been included in the charge sheet, unless the delinquent Govt. servant has admitted it or had reasonable opportunity of defending him against the said charge. The Inquiring Authority becomes functus officio after he signs and submits his report. In other words, his function and authority as inquiry officer come to an end after he signs and submits his report to the disciplinary authority.

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Basic principles for conduct of inquiry


One of the cardinal principles of regarding departmental inquiry is that it should be conducted impartially. The Inquiry officer should not be biased. The general principles to be followed are: No man shall be a judge in his own case, and Justice should not only be done but clearly and undoubtedly appear to be done. It is for the Presenting Officer to prove the charges. The Inquiry Officer should be a person with an open mind. He should not be an interested party in the case. He should be capable of acting objectively and impartially. He should not import his personal knowledge during the inquiry as a substitute for proper evidence.

Scope of Inquiry
As per the rules, inquiry need be conducted only in respect of such charges, which are not admitted. Further, the rules provides for a return of finding of guilt by the Inquiry Officer in respect of charges admitted by the delinquent Govt. servant. In respect of such charges, it is not necessary to introduce witnesses and documents to prove the charges.

Confession-coercion
While there could be no better evidence than ones own confession, yet it is not safe to act upon the same when it is alleged to have been extracted by coercion, especially by the affected party. Such a confession could still be used, if some other independent witness had corroborated it.

Allegation of bias against the Inquiry Officer


Judges, like Caesars wife, should be above suspicion

Wherever an application is moved by a Govt. servant against whom disciplinary proceedings are initiated under CCS (CCA) Rules, against the Inquiry Officer on grounds of bias, the proceedings should be stayed and the application referred, along with the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon. For this purpose the reviewing authority would normally be the appellate authority. Obviously any representation

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against the appointment of inquiry officer on grounds of bias should be made as soon as the inquiring authority has been appointed, but not after the proceedings have commenced and reached an advanced stage. No hard and fast rules can, however, be laid down and each case will have to be examined on merits on the facts and circumstances brought out by the concerned Govt. servant alleging bias on the part of inquiring authority. As the rules stand at present, it is not possible to deny to the Govt. servant the right to ask for review of any orders issued under CCS (CCA) Rules, 1965 at any time.

Onus of establishing a charge


It needs no emphasis that in a departmental inquiry, the onus of establishing a charge against the delinquent official is on the presenting officer. The finding of the inquiry officer should be based of materials presented during enquiry. If the Inquiry Officer places the onus of disproving the charge on the charged employee, the case of the department would straightaway fall.

Violation of Principles of Natural Justice


Principles of natural justice which include reasonable opportunity for defence may be held to have been violated in the following circumstances:

Denial of opportunity to refute the charges and to establish innocence Where the inquiry is confidential Where it is ex parte when the delinquent Govt. servant is willing to participate in the inquiry Where witnesses are examined in the absence of the charged employee Where the charged employee is not permitted to cross examine the prosecution witnesses Where the Govt. servant is not allowed to summon relevant material on which he wants to rely Where defence witnesses are not allowed to be produced

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Where the essential documents of the defence are not allowed to be produced Where the inquiry officer acts upon some materials which are not disclosed to the charged employee Where the inquiry Officer has a bias against the charged employee

The rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on what he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witness examined by that party, and that no materials should be relied on against him without his being given an opportunity of explaining them.

Right to engage a Defence assistant


To get a defence assistant is a valuable right for the charged employee and any refusal to grant such assistance should only be after very careful consideration of the request and for sufficiently strong reasons. In a departmental inquiry if the charged employee is pitted against a legally trained mind and if he seeks permission to engage a legal practitioner, the refusal to grant that request would amount to denial of a reasonable request to defend himself. When a legal practitioner is permitted to be engaged as defence assistant, fees for the defence lawyer are to be paid by the Govt.

Production of documents during the enquiry

E.O. should allow the Govt. servant to inspect the documents specified in the charge sheet. The charged employee should be asked to submit a list of witnesses to be examined on his behalf. If copies of documents listed in the charge sheet are asked for, the same should be furnished at least three days before the commencement of examination of prosecution witnesses. If any document other than what is mentioned in the charge sheet is required by the delinquent Govt. servant to be produced, he

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should indicate relevance thereof. If the request is refused, reasons for refusal must be given.

If any document were not relied upon, non-furnishing of its copy would not amount to denial of opportunity for defence. No information should be received or recorded behind the back of the charged employee. The facts sought to be proved must be made in the presence of the delinquent Govt. servant. The Inquiry Officer must hear both sides and must not hear one side in the absence of the other.

If the right to be heard is to be a real right which is worth anything it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him; and then he must be given a fair opportunity to correct or contradict them It follows that the judge or whoever had to adjudicate must not hear evidence or receive representations from one side behind the back of the other.

As per rules of evidence, a letter written by a witness cannot straight away be accepted as evidence unless the author of the letter is called to prove the document so that the charged employee would have an opportunity to cross-examine him. Where the witnesses who gave earlier statements did not appear before the inquiring authority and did not admit the correctness of the statements, no reliance can be placed on statements for the purpose of finding the official guilty. If any additional witness is to be examined, there should be adequate notice to the charged employee. Prosecution witness cannot be recalled after the examination of defence witnesses. It is not permissible to let in new evidence or to summon any fresh witness to fill up the gap in evidence on record when the case is closed on behalf of the disciplinary authority. It is left to the discretion of the Presenting Officer to examine all or some of his witnesses.

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If the Inquiry Officer disallows any question, he is bound to record that question and to make a note in the proceedings that the question has been disallowed. There is no duty on the prosecution to examine the witnesses named by the delinquent. The prosecution is entitled to examine only such witnesses whom they desire to examine in support of the charges.

Enquiry Report

The Inquiry authority may record its findings on a charge, which is different from the one framed by the disciplinary authority. However, such finding should be on the basis of facts admitted by the delinquent Govt. servant during the inquiry, or after having given him reasonable opportunity to defend himself against such charge. Inquiring Authority is not empowered to alter the original charge during the course of inquiry. He cannot substitute his own imputations for establishing a charge, which is different from the imputations given in the charge sheet. After the conclusion of the inquiry, a report has to be prepared by Inquiring Authority in which a detailed assessment of evidence in respect of each article of charge and the findings of the Inquiring Authority on each article of charge together with reasons therefor should be given. The standard of proof required in support of a finding need not measure up to the requirement in a criminal trial. A conclusion of guilt can be drawn if there is a preponderance of probability. Proof beyond reasonable doubt need not be insisted upon. The findings must be based on the evidence properly brought before him in the presence of both the parties and not on any information which he may receive otherwise. He cannot even take expert opinion (like the opinion of a handwriting expert) or technical advice without informing the

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parties or giving them an opportunity of commenting on such advice or cross-examining the expert.

The Inquiry Officer should not make recommendation regarding punishment as this is beyond the jurisdiction of the Inquiry Officer. The principles of natural justice is violated when a quasi-judicial authority, without exercising his own judgment and without giving the parties an opportunity of meeting the point of view adopted by a superior officer, gives his decision in accordance with instructions received from the superior officer. The person who is to decide must act honestly and impartially and not under the dictation of some other person or persons to whom the authority is not given by law. In departmental proceedings enquiry officer is important person. On him depends whether enquiry would be fair and impartial. He cannot play role of prosecutor. If he does, enquiry proceedings would be vitiated.

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Defence Assistant
When a mans reputation or livelihood is at stake, he not only has a right to speak by his own mouth. He also has a right to speak by counsel or solicitor.

Who can be nominated?


In departmental enquiry, just as a presenting officer is appointed to present on behalf of the disciplinary authority the case in support of the articles of charge, the delinquent Govt. servant is entitled to engage a Govt. servant or a legal practitioner to assist him in his case. The person so engaged is known as Defence Assistant or Assisting Officer. The Defence Assistant may be any of the following, subject to some conditions:
1. Any Govt. servant posted in any office at the headquarters of the charged

employee, or
2. Any Govt. servant posted in any office at the place where the inquiry is held,

or
3. Any Govt. servant posted at any other station, or 4. Any retired Govt. servant, or 5. A legal practitioner

Conditions for engagement of Defence Assistant


A Govt. servant who has three pending disciplinary cases on hand, in which he has to give assistance is not permitted to be engaged as Defence Assistant. In other words, a Govt. servant can render assistance in not more than three cases only. A Govt. servant under suspension is also eligible to function as defence assistant. While no permission is needed by the official who is charge-sheeted to secure the assistance of any other Govt. servant, and also for the latter to assist the delinquent Govt. servant, it is necessary for the Govt. servant who has been nominated as defence assistant to obtain permission from his Controlling Authority to absent himself from office in order to assist the delinquent Govt. servant during the inquiry. The Controlling Authority may refuse permission on reasonable/genuine grounds and such refusal would not amount to denial of reasonable opportunity to defend the case, as it is open to the delinquent Govt. servant to nominate another Govt. servant for rendering assistance.

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Govt. servants from other stations


Govt. servant at Sl. No. 3 above can be engaged only if the inquiring authority permits the delinquent Govt. servant to engage such a Govt. servant having regard to the circumstances of the case, and for reasons to be recorded in writing. It has been decided, that a Govt. servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Govt. servant or the place of inquiry. Accordingly, in all cases where the Inquiring Authority rejects the request of the charged Govt. servant for engagement of a defence assistant from a place other than the headquarters of the charged Govt. servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Govt. servant to enable him to make a representation against the order, if he so desires, to the Disciplinary Authority. On receipt of the representation from the charged Govt. servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the Inquiring Authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order.

Retired Govt. servants


Retired Govt. servants also can be engaged as defence assistant subject to the following conditions: 1. The retired Govt. servant should have retired from service under the Central Government. If the retired Govt. servant is also a legal practitioner, restrictions on engaging a legal practitioner will apply He should not have been associated with the case at investigation stage or otherwise in his official capacity He should not act as defence assistant in more than five cases at a time. He should satisfy the Inquiring Authority that he does not have more than five cases in hand including the case in question.

2.

3.

4.

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Legal Practitioner
Normally legal practitioners are not permitted to assist either party in departmental proceedings. However, a charged employee may obtain the assistance of a legal practitioner to defend himself, as of right, where the presenting officer appointed to present the case of the department is a legal practitioner. In other cases, the disciplinary authority may allow the obtaining of such assistance if the facts and circumstances of the case so warrant e.g. where the matter has legal overtones or the issues involved are complicated or examination and cross examination of large number of witnesses is required. However, the Supreme Court has held that such assistance should be permitted, where the presenting officer appointed by the department, is(a) A public Prosecutor or Prosecuting Inspector of the C.B.I., or (b) A Law Officer or Legal Adviser, or (c) A Personnel Manager trained in Law.

Does right to hearing include right to representation through Counsel of choice?


Having regard to the principles of natural justice, whether a delinquent employee is entitled to be represented by a legal practitioner was considered by the Supreme Court in Crescent Dyes case. The court held that the law in India does not concede an absolute right of representation as an aspect of the right to be heard. Right to be heard is one of the basic principles of natural justice. The court observed: There can be no doubt that a delinquent must be given an opportunity of presenting his case in such a way suitable to the character of the enquiry which would ensure a fair hearing resulting in fair dispensation of justice. But, does that extend to the right to be represented through counsel or agent is the question which we are called upon to answer. The court observed further: A delinquent employee appearing before a tribunal may feel that the right to representation is implied in the large entitlement of a fair hearing based on the rule of natural justice. He may, therefore feel that refusal to be represented by an agent of his choice would tantamount to denial of justice. Ordinarily it is considered desirable not to restrict this right of representation by counsel or an agent of ones choice, but it is a different thing to say that such a right is an element of the principle of natural justice and denial thereof would invalidate the enquiry. That the right to be represented by a counsel or agent of ones own choice is not an absolute

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right and can be controlled, restricted or regulated by law, rules or regulations. Generally, in enquiries fairly simple questions of fact as to whether certain acts of misconduct were committed by an employee or not only fall to be considered and straight forward questioning which a person of fair intelligence and knowledge of conditions prevailing in the organization will be able to do will ordinarily help to elicit the truth. However, if the charge is of a serious and complex nature or having legal overtones, the delinquents request to be represented through a counsel or agent could be considered.

Exercise of discretion
The provision in the CCS (CCA) Rules relating to engagement of legal practitioner as defence assistant reads as follows: The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits. It is clear from the rule that even though the Presenting Officer appointed by the disciplinary authority is not a legal practitioner, the disciplinary authority, having regard to the circumstances of the case can permit the delinquent to take the assistance of a legal practitioner. In other words, discretion has been vested in the disciplinary authority in permitting the delinquent Govt. servant to have the assistance of a legal practitioner where the Presenting Officer is not a legal practitioner. The rule vests a discretion. In the matter of exercise of this discretion one of the relevant factors is whether there is likelihood of the combat being unequal entailing a miscarriage or failure of justice and a denial of a real and reasonable opportunity for defence by reason of the employee being pitted against a presenting officer who is trained in law. Legal Adviser or lawyer is for this purpose somewhat liberally construed and must include whoever assists or advises on facts and in law must be deemed to be in the position of a legal adviser. In the last analysis, a decision has to be

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reached on a case to case basis on the situational particularities and the special requirements of justice of the case. Thus the following principles emerge in regard to the employees right to be defended by a legal practitioner in a disciplinary enquiry.
(a) The right to be represented by a legal practitioner is not an element

of principle of natural justice.


(b) The employee will have the right to claim to be represented by a

legal practitioner, where the presenting officer appointed is a legal practitioner.


(c) Where the rules or regulations are silent about representation by a

lawyer or vest a discretion in the disciplinary authority or the inquiring authority, to permit the employee to be represented by a legal practitioner or other agent of his choice, denial of such permission on a request made by the employee would violate the principles of natural justice (1) if the presenting officer is a legal practitioner or a person legally trained or experienced; or (2) if the charges are of a serious and complex nature.

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Departmental action in case of conviction by Court


Constitutional provision:
Clause (2) of Article 311 and clause (a) of second proviso thereto is reproduced below with emphasis added. (2) 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 of opportunity of being heard in respect of those charges. Provided further that this clause shall not apply

(a) where a person is dismissed or removed or reduced in


rank on the ground of conduct which has led to his conviction on a criminal charge; As per clause (2) of Art. 311, when a Civil servant is to be punished with the penalty of dismissal or removal or reduction in rank, imposition of such punishment shall be only after an inquiry in which the charges are intimated to him and he is given reasonable opportunity of meeting such charges. But as per clause (a) of second proviso to Article 311 (2), clause (2) shall not apply, i.e. the condition of holding an inquiry in which the charges are intimated to him and he is given reasonable opportunity of meeting such charges shall not apply where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge.

Corresponding Rule
Provision corresponding to the above can be found in Rule 19 of CCS (CCA) Rules. The relevant portion is extracted below: 19. Special procedure in certain cases

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Notwithstanding anything contained in Rule 14 to Rule 18 (i) where any penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge, .. the disciplinary authority may consider the circumstances of the case and make such orders thereon as it deems fit: Provided that the Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any such order is made in a case under clause (i) It is clear from the Constitutional provision as well as from Rule 19 of CCS (CCA) Rules that the requirement of holding an inquiry as mandated in Article 311 (2) does not apply to the exceptional case of departmental action against a Government servant on the ground of conduct which has led to his conviction on a criminal charge.

Conviction-what it is?
The term conviction used in this context includes conviction under any law, which provides for punishment for a criminal offence, whether by fine or imprisonment. To apply this proviso, it is not necessary for the Government to wait until the disposal of appeal or revision presented against the conviction. But if the conviction is subsequently set aside, on appeal or otherwise, the order of dismissal (where the Govt. servant has been dismissed) ceases to have effect. The act of a legal tribunal adjudging a person guilty of an offence is termed as conviction. Criminal charge is a charge of an offence and offence is a crime or act or omission punishable by law.

Judicial pronouncements
In Prem Kumar v. Union of India Madhya Pradesh High Court has observed as follows on departmental action as a consequence of conviction: (a) The departmental punishment or dismissal from service is not an essential and automatic consequence of conviction on a criminal charge.

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(b)

The authority competent to take disciplinary action against a servant convicted on a criminal charge has to consider all the circumstances of the case and then to decide: (i) Whether the conduct of the delinquent official, which led to his conviction, is such as to render his further detention in public service undesirable If so, whether to dismiss him or to remove him from service, or to compulsorily retire him; and If the said conduct of the official is not, such which renders his further retention in service undesirable, whether the minor punishment, if any, should be inflicted on him.

(ii)

(iii)

(c)

To retain in service or to remain in service is not a qualification, but a right in certain circumstances subject to the relevant constitutional or statutory provisions and service rules. The liability to be departmentally punished for conduct which has led to the conviction of the employee does not attach to the conviction, but attaches to the original conduct (misconduct) which constituted the offence of which the official has been convicted. Section 12 of the Prohibition of Offenders Act does not wash away or obliterate the conduct of the employee which has led to his conviction and does not, therefore, give him any immunity against departmental proceedings nor exonerates him from his liability to departmental punishment for such conduct if it amounts to misconduct under the relevant service rules; the original misconduct of the servant does not merge with his conviction so as to become non-existent after conviction.

(d)

(e)

When benefit of probation is given?


In this case the question was as to how the authorities should proceed when departmental action is sought to be taken after a verdict is recorded by a criminal court but benefit of probation is given. It was held that it is the conduct, which is relevant factor and should be taken note of.

An offender released on probation-whether will suffer disqualification?

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Section 12 of the Probation of Offenders Act, 1958 reads thus: Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification, if any, attaching to a conviction of an offence under such law: Provided that nothing in this Section shall apply to a person who, after his release under Section 4, is subsequently sentenced for the original offence. Since it is statutorily provided that an offender who has been released on probation shall not suffer disqualification attaching to a conviction of the offence for which he has been convicted notwithstanding anything contained in any other law, instead of dismissing him from service he should have been removed from service so that the order of punishment did not operate as a bar and disqualification for future employment with the government.

What is probation?
Probation in this context means a system of releasing on suspended sentence, during good behaviour, young persons and especially first offenders, and placing them under the supervision of a probation officer who acts as a friend and adviser.

Pending appeal against conviction whether disciplinary action can be taken?


The conviction spoken in the clause (a) of the second proviso to clause (2) of Art. 311, to form a basis for the dismissal, removal or reduction in rank, could be one recorded by a competent Criminal Court in the first instance and the preferring of an appeal or revision against such conviction and the pendency of the same will not alter the position and action taken on the basis of such conviction, need not conform to clause (2) of Art. 311, since by the express terms of the second proviso thereto, clause (2) of Art. 311 is dispensed with.

When execution of sentence is suspended by Appellate Court


A bare reading of Rule 19 shows that the Disciplinary Authority is empowered to take action against a Government servant on the ground of

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misconduct which has led to his conviction on a criminal charge. The rules, however, do not provide that on suspension of execution of sentence by the Appellate Court the order of dismissal based on conviction stands obliterated and the dismissed Government servant has to be treated as under suspension till the disposal of the appeal by the Appellate Court. The rules also do not provide the Disciplinary Authority to await disposal of the appeal by the Appellate Court filed by the Government servant for taking action against him on the ground of misconduct which has led to his conviction by the competent Court of Law.

Departmental instructions
Duty of Govt. servants to inform superiors regarding conviction It is the duty of the Govt. servant who may be convicted in a criminal court to inform his official superiors of the fact of his conviction and the circumstances connected therewith, as soon as it is possible for him to do so. Failure on the part of the Govt. servant so to inform his official superiors will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the penalty called for on the basis of the offence on which his conviction was based. Suspension As soon as a Govt. servant is convicted on a criminal charge, he may, in appropriate case, be placed under suspension, if not already suspended. Further action by disciplinary authority Having come to know of the conviction of a Government servant on a criminal charge, the disciplinary authority must consider whether his conduct, which has led to his conviction, was such as warrants the imposition of a penalty and if so, what that penalty should be. [What is implicit in this is that (1) each and every case of conviction may not deserve the imposition of departmental penalty and (2) even in deserving cases, the quantum of penalty can differ from case to case]. For that purpose, it will have to peruse the judgment of the criminal court and consider all the facts and circumstances of the case. In considering the matter, the disciplinary authority will have to take into account the entire conduct of the delinquent employee, the gravity of the misconduct committed by him, the impact which his misconduct is likely to have on the

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administration and other extenuating circumstances or redeeming features. This, however, has to be done by the disciplinary authority itself. Once the disciplinary authority reaches the conclusion that the Govt. servants conduct was blameworthy and punishable, it must decide upon the penalty that should be imposed upon the Govt. servant. This too has to be done by the disciplinary authority itself. The principle, however, to be kept in mind is that the penalty imposed upon the civil servant should not be grossly excessive or out of all proportion to the offence committed or one not warranted by the facts and circumstances of the case. [Text in parenthesis added. Emphasis (Italics) added.] These instructions are based on the Supreme Courts judgment in Tulsi Ram Patels case.

Extreme penalty when can be imposed?


Disciplinary authorities have, in a large number of cases, interpreted the provisions of this rule to mean that only one of the extreme penalties such as dismissal/removal/compulsory retirement is to be imposed in such cases as a matter of course. This interpretation is not at all correct and the disciplinary authority is supposed to give proper consideration to the offence actually committed by the Government servant as a result of which he was convicted by the Court of Law. It is only where the Government servant has been convicted on ground of moral turpitude that there is justification for holding the view that such Government officials retention in service is not desirable and one of the extreme penalties mentioned above can be imposed in such a case.

Action when appeal against conviction succeeds


If an appeal/revision in higher Court against conviction succeeds and the Government servant is acquitted, the order imposing a penalty on him on the basis of conviction, which longer stands, becomes liable to be set aside. However, the acquittal could still be challenged in a still higher court, or, despite the acquittal, if the facts and circumstances of the case are such as to call for departmental enquiry against the Government servant on the basis of allegations on which he was previously convicted, the same could be ordered.

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Legal view is that in both the above cases, the order imposing the penalty on the Government servant on the basis of conduct, which had led to his conviction, should be set aside. Once the conviction is set aside or quashed the dismissal order must fall to the ground. An acquittal of a person on a criminal charge by a higher court setting aside the conviction passed by a subordinate court or an inferior court is tantamount to, the person not having been convicted at all. The setting aside of a wrong order of a court results in the position as if such order was never in existence, though as a fact the order was passed and lasted till it was set aside.

Admissibility of pay and allowances on acquittal by court


Even where one is acquitted after a regular trial in the Court of Law, it is open to the Department to consider whether the acquittal is honourable or otherwise. 2. (a) (b) (c) (d) (e) An acquittal which is not honourable can be On technical grounds On benefit of doubt Due to non-prosecution of the case due to a policy of the Government Non-prosecution due to non-availability of evidence Due to compounding out of court

3. Item (d) above will be deemed to be a case similar to honourable acquittal. All other instances referred to above are not to honourable acquittal. 4. In all cases of acquittal, the Govt. cannot institute departmental proceedings on the same facts traversed in the criminal case. In all cases of honourable acquittal, suspension will have to be regularized as duty with full pay and allowances. Acquittal due to non-availability of evidence is also a honourable acquittal. 5. In case of acquittal vide 2 above other than (d), the Disciplinary Authority can treat the suspension as justified. Even in case of acquittal proceedings may follow where the acquittal is otherwise than honourable.

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It seems to us that if on reading the judgment and order which acquits the government servant it appears to the government or the competent authority that the government servant has not been fully exonerated of the charges leveled against him, the government or the competent authority would be entitled to come to the conclusion that cl. (b) would apply and not cl. (a) (cl. (b) provides for payment of proportion of such pay and allowances as the authority may prescribe.) [State of Assam & anr. v. Raghava
Rajagopalachari, 1972 SLR 44].

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Suspension and deemed suspension


What is suspension?
Suspension is the action by which a servant is kept out of duty by his master for a temporary period. The word suspend has been defined to mean to debar or cause to withdraw temporarily from any privilege, office or function. The contract of employment and the master-servant relationship continues during suspension. During this period, the servant is not paid the full salary; but only an amount, which is required for the subsistence or existence of the servant. In Government departments where disciplinary actions are regulated under CCS (CCA) Rules, suspension is not treated as penalty within the meaning of Rule 11 of the said Rules and consequently, neither Article 311 (2) nor any rule relating to issue of chargesheet and holding of enquiry is attracted, nor there is any question of adhering to the principles of natural justice before a Govt. servant is placed under suspension. To place an employee under suspension is an unqualified right of the employer. The right is conceded to the employer everywhere in service jurisprudence. It has even received statutory recognition under service rules framed by various authorities including the Government of India and the State Governments. The order of suspension does not put an end to employees services and he continues to be a member of the service though he is not permitted to work and is paid only subsistence allowance which is less than his salary.

Who can place a Govt. servant under suspension?


As per Rule 10 (1) of CCS (CCA) Rules, any of the following authority can place a Govt. servant under suspension.

The appointing authority Any other authority to which the appointing authority is subordinate Disciplinary authority Any other authority empowered by the President by a general or special order Any authority lower than the appointing authority

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However, if the last authority in the above list has ordered the suspension, such authority shall forthwith report to the appointing authority the circumstances in which the order of suspension was made.

When does the order of suspension take effect?


Order of suspension takes effect when it is served on the employee. An administrative order cannot be said to have taken effect unless it is served.

Power to appoint includes power to suspend or dismiss


Where, by any Central Act, or Regulation, a power to make appointment is conferred, then, unless a different intention appears, the authority having for the time being power to make appointment shall also have power to suspend or dismiss any person appointed whether by itself or any other authority in exercise of that power.

Powers of Officer-in-Charge
The General Manager of an Ordnance Factory was promoted and posted as Member, OFB. Another officer was asked to function as Officer-inCharge of that factory. Thereafter, clarifications were sought from OFB on the following points.
1. 2. 3.

Whether the Officer-in-Charge is competent to suspend any individual or to revoke existing suspension? Whether the Officer-in-Charge is competent to initiate/finalize disciplinary action for major penalty and or for minor penalty? Can the Officer-in-Charge issue penalty order for penalties decided for in the file by erstwhile General Manager?

OFBs clarifications vide letter No. 1480/CL/A/VIG dt. 9th Nov. 1992 Point 1: The Officer-in-Charge can suspend any employee or revoke the suspension with the approval of competent Disciplinary Authority, which should be taken within one month. Points 2 & 3: No.

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Suspension by an authority lower than the appointing authority


Rule 10 (1) of the CCS (CCA) Rules provides that where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. Averment that this requirement has been complied with is not controverted by the counsel for the applicant. Therefore there has been no violation of the rules.

What are the circumstances under which a Govt. servant can be placed under suspension?
As per Rule 10 (1) of CCS (CCA) Rules, a Govt. servant may be placed under suspension:(a) Where a disciplinary proceeding against him is contemplated or is pending; or (b) Where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (c) Where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

What is meant by the expression investigation?


It is clear that a member of the service can be placed under suspension, if against him an investigation, enquiry or trial relating to a criminal case is pending. The expression investigation, enquiry, or trial is well known in the realm of the criminal law under the Code of Criminal Procedure. [Investigation means all the proceedings under the Criminal Procedure Code for the collection of evidence conducted by a Police Officer or by another person (other than a magistrate) who is authorized by a magistrate in this behalf.] In the instant case, when a FIR

was filed against the appellant and steps were taken for obtaining a search warrant for the search of his house, investigation within the meaning of Rule 7 (3) became pending.

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Trial
Trial is a judicial examination, in accordance with law, of a cause either civil or criminal, of the issues between parties, whether of law or fact, before a court that has jurisdiction over it. Rule 10 of the Rules does not authorize suspension of a government servant on the ground of conviction on a criminal charge. Hearing of appeal by a higher court against conviction is not a part of trial.

Filing of FIR necessary to show prima facie a case


Only when the FIR is filed before a Criminal Court in respect of a criminal offence against a government servant it can be inferred that the materials gathered at the stage of preliminary enquiry has shown prima facie a case against the applicant in respect of a criminal offence.

Suspension syndrome and non-payment of subsistence allowance


Exercise of right to suspend an employee may be justified on the facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by a suspension syndrome and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employees trivial lapse, which has often resulted in suspension. Suspension not withstanding non-payment of subsistence allowance is an inhuman act, which has an unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demoralized and the salary is also paid to him at a reduced rate under the nickname of subsistence allowance so that the employee may sustain himself. .. The act of non-payment of subsistence allowance can be likened to slow poisoning, as the employee, if not permitted to sustain himself on account of non-payment of subsistence allowance would gradually starve himself to death.

Guiding factors suspension

in

placing

Govt.

servant

under

While public interest should be the guiding factor in deciding to place a Government servant under suspension, competent authority may consider it appropriate to place a Govt. servant under suspension (1) when the Govt. servants continuance in office will prejudice the investigation, trial or

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inquiry (e.g. when there is an apprehension that he will tamper with witnesses or documents), (2) where his continuance in office is likely to seriously subvert discipline in the office in which he is working, (3) there is a public scandal and the suspension is necessary to demonstrate the firm resolve of the Govt. to strictly deal with officers involved in scandal, corruption etc. and (4) a prima facie case is made out against him which would justify his prosecution or his being proceeded departmentally, and the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service. The Govt. servant may be placed under suspension if he is suspected to have engaged himself in activities prejudicial to the security of the State.

Expeditious filing or serving of charge sheet


Even though suspension may not be considered as a punishment, it does constitute a very great hardship for a Govt. servant. In fairness to him, it is essential to ensure that this period is reduced to the barest minimum. Every effort should be made to file the charge sheet in court or serve the charge sheet on the Govt. servant, as the case may be, 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.

Appeal against suspension


Where a Govt. servant is placed under suspension on the ground of contemplated disciplinary proceeding against him and where it is not found possible to issue a charge sheet within three months from the date of suspension, the reasons for suspension should be communicated to him on the expiry of the aforesaid time limit, so that he may be in position to effectively exercise his right of appeal against suspension.

Deemed suspension
A Govt. servant shall be deemed to have been placed under suspension by an order of the appointing authority (a) if he has been detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours, (b) In the event of conviction for an offence, if he is sentenced to a term of imprisonment exceeding 48 hours. The period of 48 hours in this case [i.e. in (b)] will be computed from the commencement of imprisonment after the conviction and intermittent periods of imprisonment, if any, will be taken into account.

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If a Govt. servant who has been detained for a period exceeding 48 hours is later on released on bail, such release will not affect the deemed suspension. The suspension will continue in force until competent authority revokes it.

Other cases of deemed suspension


A Govt. servant was already under suspension. While he was under suspension a penalty of dismissal or removal or compulsory retirement was imposed upon him. This penalty is set aside in appeal or revision and the case is remitted back by the appellate or revising authority for further enquiry or action or with any other direction. In such cases, the order of suspension will be deemed to have continued in force from the date of original order of penalty. This deemed suspension should remain in force until further orders. Deemed suspension operates in the following case also. A penalty of dismissal or removal or compulsory retirement was imposed upon a Govt. servant, though he was not under suspension. This penalty is set aside or declared or rendered void in consequence of or by a decision of a court of law. The disciplinary authority, having regard to the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal or removal or compulsory retirement was imposed. In such cases, he will be deemed to have been placed under suspension by the appointing authority from the date of original order of penalty. This deemed suspension will remain in force until further orders. However, further inquiry should not be ordered unless it is intended to meet a situation where the Court has passed an order purely in technical grounds without going into the merits of the case.

Implications of sub-rules (3) & (4)


Let us examine the circumstances which separate the two categories of cases to be governed by the two sub-rules. Sub-rule (3) is attracted only to those cases of dismissal etc. where the penalty is set aside under the CCS (CCA) Rules, and the case is remitted for further enquiry or action in accordance with the direction. The application is, therefore, confined to cases where the penalty is set aside by the appellate authority while hearing a regular appeal under Rule 27 or by the President exercising the power of revision under Rule 29 or of review under Rule 29-A.. Sub-rule (3) of Rule 10 is applicable to these groups of cases, where the interference with the penalty is connected with the merits of the charge against the Government servant. On the setting aside of the order of

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punishment in such a case, the finding against the Government servant disappears and he is restored to the earlier position. Consequently only if he was under suspension earlier, he will be deemed to have continued so with effect from the date of order of dismissal. On the other hand, the second category of cases attracting sub-rule (4) is entirely on a different footing. Sub-rule (4) governs only such cases where there is an interference by a court of law purely on technical grounds without going into the merits of the case. In cases governed by CCS (CCA) Rules, a court of law does not proceed to examine the correctness of the findings of the disciplinary authority by a reconsideration of the evidence. Unless some error of law or of principle is discovered, the court of law does not ordinarily substitute its own views on the evidence. But the matter does not end there. The scope of the sub-rule, for the purpose of automatic suspension has been further limited by the proviso as mentioned earlier, which reads as follows: Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. The cases which attract sub-rule (4) are thus those where the penalty imposed on the Government servant is set aside on technical grounds not touching the merits of the case.

Deemed suspension whether permissible in a case where CAT declared removal from service invalid; but where liberty was given to hold fresh enquiry?
In Anand Singh v. Union of India & ors. CAT, Jodhpur has decided that deemed suspension is not permissible under Rule 10 (4) when court gave liberty only to hold fresh enquiry instead of holding further enquiry. This is because the proviso contemplates further enquiry and not fresh inquiry. In an earlier case, applicants removal from service was declared invalid by the Tribunal both on technical grounds and on merits. Liberty, however, was given to competent authority to hold fresh enquiry in accordance with law. This implied that disciplinary authority could issue fresh charge sheet or hold de novo proceedings.

Deemed suspension takes effect automatically


In case of deemed suspension under Rule 10 (2), (3) or (4) suspension takes effect automatically even without a formal order. However, it is desirable to make a formal order quoting the relevant rule.

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Whether there will be deemed suspension in the absence of an order made to that effect?
Whereas sub-rule (1) of Rule 10 of the Rules requires an order to be made keeping a government servant under suspension, sub-rule (2) does not contemplate an order being passed to keep a government servant under suspension. The opening words of sub-rule (2 of Rule 10 of the Rules say A government servant shall be deemed to have been placed under suspension by an order of appointing authority make this position clear. Sub-rule (2) creates a legal fiction that a government servant though not placed under suspension by an order of the competent authority, is in law regarded as having been placed under suspension by an order of the competent authority. The suspension which is brought about by the deeming provision contained in sub-rule (2) of Rule 10 may at any time be modified or revoked by the competent authority.

Entitlements
A Govt. servant under suspension or deemed suspension will be entitled to the following: (1) Subsistence allowance

This is equal to the leave salary, which the Govt. servant would have drawn had he been on leave on half pay. (2) Dearness allowance

Dearness allowance as admissible on the leave salary in (1) above will also be paid to him. (3) HRA and CCA

The employee under suspension is entitled to draw HRA and CCA also as per the orders regulating the payment of these allowances. (4) Children Education Allowance or Reimbursement of Tuition Fee etc. This is also admissible. (5) Leave Travel concession

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Members of family of the suspended employee can avail LTC; but he cannot as he cannot avail leave during suspension. (6) Medical reimbursement as per CS (MA) Rules

As the master-servant relationship continues during suspension, reimbursement of Medical expenses under CS (MA) Rules is permitted. (7) House Bldg. Advance

House Bldg. Advance can be availed provided necessary collateral security is furnished.

Deductions from subsistence allowance


(1) Compulsory deductions Recoveries of (a) Income Tax, (b) License fee for quarter including electricity charges etc., (c) Repayments of loans/advances taken from Govt., (d) CGHS contribution, and (e) CGEGIS contribution etc. are to be effected compulsorily. (2) Optional deductions The deductions such as (a) Premium due on Postal Life Assurance Policies, (b) Amount due to Co-operative Store/Society and (c) Refund of advance taken from GPF may be made subject to written consent of the suspended employee. (3) Deductions that should not be made The deductions such as (a) subscription to GPF, (b) amount due on Court attachments and (c) recovery of loss caused to the Govt. should not be made.

Review of allowance

suspension

and

amount

of

subsistence

An order of suspension is not an order imposing punishment on a person found to be guilty. It is an order made against him before he is found guilty to ensure smooth disposal of the proceedings initiated against him. Such proceedings should be completed expeditiously in the public interest and also in the interest of the Govt. servant concerned. The subsistence

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allowance is paid by the Government so that the Govt. servant against whom an order of suspension is passed on account of the pendency of any disciplinary proceedings or a criminal case instituted against him could maintain himself and his dependents until the departmental proceedings or criminal case, as the case may be, comes to an end and appropriate orders are passed against the Govt. servant by the Government regarding his right to continue in service etc. depending upon the final outcome of the proceedings instituted against him. The very nomenclature of the allowance makes it clear that the amount paid to such a Govt. servant should be sufficient for bare subsistence in this world in which the prices of the necessaries of life are increasing every day on account of conditions of inflation obtaining in the country. It is further to be noted that a Govt. servant cannot engage himself in any other activity during the period of suspension. The amount of subsistence allowance payable to the Govt. servant should, therefore, be reviewed from time to time, even though there may be no rule insisting on such review. In doing so the authority concerned no doubt has to take into account whether the Govt. servant is in any way responsible for the undue delay in the disposal of the proceedings initiated against him. If the Govt. servant is not responsible for such delay or even if he responsible for such delay to some extent but is not primarily responsible for it, it is for the Government to consider whether the order of suspension should be continued or whether the subsistence allowance should be varied to his advantage or not.

Increase/decrease of subsistence allowance


As per orders of the Govt., where the suspension exceeds three months, the authority which made or is deemed to have made the order of suspension shall be competent to vary (increase/decrease) the amount of subsistence allowance for any period subsequent to the period of first three months of suspension. If the period of suspension is prolonged for reasons not directly attributable to the Govt. servant, the allowance may be increased by suitable amount not exceeding 50% of the subsistence allowance payable during the first three months. If the period of suspension has been prolonged for reasons directly attributable to the Govt. servant, the allowance may be decreased by suitable amount not exceeding 50% of the subsistence allowance payable during the first three months.

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Further review of subsistence allowance


Competent authority can make further review(s) at any time during the suspension period to increase/decrease the amount of subsistence allowance. Such subsequent increase/decrease in the amount will be subject to the overall limit of 50% of the subsistence allowance initially granted.

Denial of subsistence allowance


Subsistence allowance shall not be denied on any ground unless a Govt. servant is unable to/does not furnish a certificate that he is not engaged in any other employment, business, profession or vocation, during the period of suspension.

Timely payment of subsistence allowance


In the case of G. D. Srivastava v. State of M.P. the Supreme Court has observed that where a Govt. servant under suspension pleaded his inability to attend the enquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex parte would be violation of the provisions of Art. 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings.

Acceptance of resignation while under suspension


With the prior approval of the competent authority, resignation of a suspended employee may be accepted, where the alleged offence does not involve moral turpitude or where the quantum of evidence against the employee is not strong enough to justify the assumption that he would be removed or dismissed from service on completion of the proceedings or where it would be cheaper to the public exchequer to accept the resignation.

Voluntary retirement while under suspension


In the case of a suspended employee, the right to retire voluntarily any time after attaining the age of 50 or 55 years, as the case may be, or at any time after rendering a qualifying service of 30 years is always subject to the prior approval of the competent authority.

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Superannuation pension

while

under

suspension-provisional

If an employee attains the age of superannuation during suspension and before the termination of departmental/court proceedings, he should be granted provisional pension, which should be equal to 100% of pension otherwise admissible to him. He will cease to draw subsistence allowance. No gratuity will be paid at this stage.

Regularization of suspension period on reinstatement after suspension


(a) When suspended employee dies while under suspension The period of suspension is treated as duty for all purposes and his family will be paid for that period full pay and allowances to which he would have been entitled had he not been suspended, of course, after adjusting the subsistence and other allowances paid. (b) When suspended employee is exonerated of the charges in departmental proceedings The period of suspension is treated as duty for all purposes. If the Govt. servant is not held to be responsible for any delay in the termination of proceedings instituted against him, full pay and allowances will be admissible for the suspension period. (c) When on conclusion of departmental proceedings only minor penalty is imposed The suspension period will be treated as duty and full pay and allowances will be admissible. (d) When suspension is held to be wholly unjustified The suspension period will be treated as duty and full pay and allowances will be admissible, if he is not held to be responsible for any delay in the termination of proceedings instituted against him.

Other cases of reinstatement


In other cases of reinstatement after suspension, proportionate (not being full) pay and allowances will be paid. Unless otherwise decided, the period

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of suspension will be treated as non-duty. Decisions on these matters will be taken only after issuing a show cause notice to the concerned employee. When the suspension period is treated as non-duty, the employee has got the option to convert the period of absence from duty due to suspension to leave of any kind due and admissible by an order of the competent authority.

Cases connected with detention/ court proceedings


In the following cases also suspension will be treated as duty and full pay and allowances for the suspension period will be paid. (a) Where a Govt. servant is acquitted by court on merit and where no further departmental enquiry is held. (b) Where a preventive detention is held by the competent authority to be unjustified (c) In case of erroneous detention and consequent release without any prosecution (d) In case of arrest for debt, when it is ultimately proved that the debt arose from circumstances beyond the control of the employee.

Regularization of deemed suspension period


Deemed suspension under Rule 10 (2) is not attributable to the discretion of the competent authority. This is because when a government servant is taken into custody, he is rendered incapable of serving Government and therefore he is deemed to have been placed under suspension. When a government servant ceases to be in custody either by his release on bail or as a result of his acquittal and he informs the competent authority accordingly, the discretion of the competent authority to continue or not to continue suspension becomes exercisable from point of time such information is given. The suspension has automatically to be treated as justified up to the period the requisite information is given without any discretion. The discretion becomes exercisable for subsequent period. The former period is governed by FR 54-B (5) and not by FR 54-B (3). The decision regarding later period has to be taken by the competent authority after giving the petitioner an opportunity of showing cause.

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Workshop on disciplinary proceedings


1.

A Govt. servant was warned in writing for a misconduct by one of his superiors who is subordinate to the Disciplinary Authority. Thereafter, for the same misconduct, disciplinary authority initiated regular departmental proceedings. Is the initiation of departmental proceedings by disciplinary authority foreclosed by the issue of warning by the Govt. servants superior? In a preliminary inquiry, nothing incriminating was found against a Govt. servant. Despite this, regular departmental proceedings were initiated against him. How far this is right? A charge sheet issued to a Govt. servant under Rule 14 was not accompanied by the copies of statements of witnesses and other documentary evidences. On this plea, the charged employee refused to reply to the charge sheet. Comment? In response to a charge sheet issued to a Govt. servant under Rule 14, he merely denied the charges. But the disciplinary authority insisted for a detailed representation setting out the defence of the Govt. servant. Comment? A charge sheet under Rule 16 was issued to a Govt. servant who merely denied the charges and demanded an inquiry. What is the next course for the disciplinary authority? A defence assistant who had two cases in hand was nominated for a third case. EO did not accept the nomination stating that he was not permitted to assist in more than two cases. Comment? A defence assistant who was assisting an employee was nominated by another employee. Is this nomination acceptable? Nomination in respect of defence helper from another station was accepted by E.O. The accused demanded payment of TA/DA for defence helper? Is it payable by the Govt.? A charged employee nominated a legal practitioner as his defence helper on the reasons that the case is complicated, it involves legal

2.

3.

4.

5.

6.

7.

8.

9.

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questions, evidences are voluminous and P.O. is trained etc. This nomination was rejected on the reason that PO is not a legal practitioner. Comment?
10.

A Foreman, a Chargeman Gr. II, a Supervisor and a Store Keeper were involved together in a case. The General Manager decided that common proceedings should be held against them. Comment? In a case where the Govt. servant was unauthorizedly absent from duty and where the notices sent to him at his last known address were returned undelivered for the addressee being not available there, the disciplinary authority, on these reasons, dispensed with the inquiry and removed him from service. Comment? An accused nominated a Govt. servant of another station as his defence helper. EO sent this nomination to GM. GM marked it to DGM (A) who replied to the accused that he couldn't be permitted to have the assistance of a Govt. servant from another station. Comment? In a case where a Govt. servant was dismissed from service; but was subsequently reinstated in service as a result of court order, the Govt. decided that since the reinstatement including payment of full pay and allowances for the suspension and interruption period and treating the period of interruption as duty etc. of the Govt. servant was caused by the disciplinary authority by careless and negligent application of rules/procedures, the amount payable to the Govt. servant should be recovered from the disciplinary authority and also he should be proceeded against departmentally. Comment? While an ex-parte inquiry was in progress, the accused came and expressed that he is now agreeable to associate himself with the inquiry; but it should be started afresh. Comment? When an EO was appointed in a particular case, the accused alleged bias against the E.O. But unmindful of his allegation, E.O. proceeded with the inquiry. Comment? Disciplinary authority found that the evidences were not properly appreciated in an inquiry. He ordered for fresh inquiry. Comment?

11.

12.

13.

14.

15.

16.

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17.

Disciplinary authority found that there were procedural flaws in an inquiry. He remitted the case back to EO for further inquiry. Comment? An Officer was conducting a dept. inquiry. He retired before completion of the Inquiry. But he was permitted to continue with the inquiry. Comment? A State Govt. servant of the same station was nominated as defence helper by a Central Govt. servant. This was not accepted on the plea that the defence helper of a Central Govt. servant also should be Central Govt. servant. Comment? In a dept. proceeding under R.14, the disciplinary authority itself conducted the inquiry. Comment? In an appeal to the Appellate Authority at Calcutta, the appellant (from Ambarnath) requested for a personal hearing, which was agreed to. Subsequently, the appellant requested for permitting his defence assistant to be with him to assist him during the personal hearing by the Appellate Authority. He also demanded TA/DA for both for appearing before the Appellate Authority. Comment? In a case where the penalty of dismissal from service was imposed upon a Govt. on the ground of conduct which had led to his conviction, and where he was reinstated in service as a result of acquittal by higher court, the period between dismissal and reinstatement was not treated as period spent on duty and he was not paid full pay and allowances. Comment? A High Court in a judgment acquitted a Govt. servant of the charges levelled against him. But the Court observed in the judgment that he had illicit relationship with a woman for a fairly long period. On the basis of this observation of the High Court, charge sheet was issued to him; but he denied the charges. In the inquiry report, EO recorded that the charge stands established on the basis of court judgment and he was punished accordingly. Comment? On a charge sheet under Rule 16, penalty of withholding of increments for two years with cumulative effect was imposed on a Govt. servant after considering the representation given by the employee. Can the penalty sustain?

18.

19.

20.

21.

22.

23.

24.

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25.

A suspended employee was not paid HRA though he was not provided with Govt. accommodation; but was incurring expenses on account of House Rent. Comment? A person obtained Govt. service by fraudulent means, i.e. he was not eligible or qualified for his initial appointment. But, un-noticed of this irregularity, he continued in service and became permanent. Subsequently, it came to be noticed that he was not eligible or qualified for the appointment. What action can be taken at that stage? In a case where pecuniary loss was caused to the Govt. by negligence/breach of orders, it was decided, after following the due procedures, to recover the loss in part. Also it was decided to impose another penalty of withholding of one increment for one year for causing the loss to the Govt. by negligence/breach of orders. Comment? A Govt. servant was suspended from 1.12.98. The departmental proceedings against him were completed in June, 99. He was removed from service w.e.f. 1.12.98, i.e. from the date of suspension. Comment? Due to departmental delay, the subsistence allowance payable to a suspended employee was not paid for months together. But during the period when allowance was not paid, dates for enquiry were fixed and communicated to the suspended employee. But he did not attend and the enquiry was held ex-parte. Comment? In a case of departmental action, the final (penalty) order issued was in a cyclostyled form. Comment? In an inquiry under Rule 14, a request was made by the charged employee to the Inquiry Officer to permit him to avail of the assistance of a Govt. servant from another station. This request was not agreed to by the Inquiry Officer. The accused submitted an appeal to the Disciplinary Authority impugning the decision of the Inquiry Officer. The Disciplinary Authority rejected this appeal stating that the order of the Inquiry Officer is an interlocutory order against which no appeal shall lie. Comment? After an inquiry under Rule 14, the Inquiry Officer recorded a finding that the charges against the accused Govt. servant are not established. The Copy of the Inquiry report was given to the

26.

27.

28.

29.

30.

31.

32.

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accused. Since the Inquiry Officer had recorded that the charges are not established, the accused merely stated that the findings are just and he did not want to say anything against it. Thereafter, the disciplinary authority disagreed with the findings of the Inquiry Officer and recorded its own findings and imposed penalty on the accused Govt. servant. State whether the disciplinary authority committed any procedural error?
33.

In an Inquiry under Rule 14, the Presenting Officer appointed was not a legal practitioner. The accused nominated a retired Govt. servant as his defence assistant. This retired Govt. servant was also a legal practitioner. Can the accused be permitted to avail of the assistance of a retired Govt. servant who is also a legal practitioner? A Muslim male Govt. servant married for the second time while his first spouse was living and not divorced. He was charged under Rule 14 for bigamy. He argued that being a Muslim, his personal law permits him to marry four times and hence no departmental action shall lie on account of his second marriage. Comment on the merit of his argument? A Male Govt. servant had illicit relationship with a woman. He was proceeded against under Rule 14 for misconduct. He replied that having illicit relationship with a woman is not misconduct and hence no disciplinary action shall lie against him. Comment on the merit of his argument? Mr. Keshav, a Govt. servant had given a declaration that he is married to one Shantidevi. He had also nominated Shantidevi for various benefits. Later on, Shantidevi made a complaint to the authorities that Mr. Keshav has entered into second marriage during her lifetime without divorcing her. In support of this statement, she produced a Voters list in which Keshav and Nirmaladevi were shown as husband and wife. On the basis of this complaint Keshav was charged for bigamous marriage and an inquiry was conducted in which the charge was found established. Comment? In an inquiry under Rule 14, the accused did not present himself as a defence witness. The Inquiry Officer recorded a finding that the charges are established without putting any question to the accused. Comment on the action of the Inquiry Officer in recording the findings?

34.

35.

36.

37.

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38.

In a departmental proceeding under Rule 14, the charge sheet was sent to the suspended employee by post. As there was no reply to the charge sheet, Inquiry was ordered. When the copy of the Inquiry Order was received by the suspended employee, he charged the Disc. Authority of violating the rule, i.e. ordering the inquiry without issuing charge sheet to him. What was the flaw? In a case of departmental action on the ground of conduct which has led to conviction on criminal charge of an employee, the employee pleaded that no action shall lie because his appeal against the conviction is pending in the higher court. Comment on the merit of his plea. In a case of departmental action on the ground of conduct, which has led to conviction on criminal charge of an employee, the employee pleaded when he was issued with a notice of proposed penalty, that no notice can be served because the sentence of conviction has been suspended by higher court. Comment on the merit of his plea.

39.

40.

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Appendix
TA/DA to retired employees appointed as Departmental Inquiry Officers
The undersigned is directed to say that as per Government of India Order No. 5 below SR-154 there is a provision to allow TA to witnesses, Presenting Officers and Defence Assistant but there is no express provision relating to payment of TA/DA to retired Government Officer appointed as an Inquiry Officer. This may be that normally the serving Government Officers are appointed as the Inquiry Officers. Some Departments have raised a question as to what rate of TA/DA is to be allowed to the retired Government Officers appointed as Inquiry Officers under the CCS/CCA Rules. 2. The question has been considered in this Department and it has been decided that the retired officers appointed as Departmental Inquiry Officers should be given the same TA/DA as he/she was entitled to immediately prior to retirement. 3. In so far as the persons retired from Indian Audit and Accounts Department is concerned, these orders issue with the approval of the C & AG.
[Govt. of India, Ministry of Finance, O.M. No. 19016/1/99-E-IV dated 16-8-1999]

Disciplinary cases should be closed on the death of the charged official


The undersigned to directed to say that this Department has been receiving references seeking clarification whether disciplinary cases initiated against the Government servant under CCS (CCA) Rules, 1965, could be closed in the event of death of the charged officer during pendency of the proceedings. After careful consideration of all the aspects, it has been decided that where a Government servant dies during the pendency of the inquiry i.e. without the charges being proved against him, imposition of any of the penalties prescribed under the CCS (CCA) Rules, 1965 would not be justifiable. Therefore, disciplinary proceedings should be closed immediately on the death of the alleged Government servant. 2. In so far as the persons serving in the Indian Audit and Accounts Department are concerned, this issues with the concurrence of the C & AG.
[Govt. of India, Dept. of Per. & Trg.. O.M. No. 11012/7/99-Estt. (A) dated 20-10-1999]

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Final Orders in disciplinary cases should be passed within three months


(Extract) 2. Attention is invited in this connection to the instructions contained in the O.M. No. 39/43/70-Estt. (A), dated 8-1-1971 wherein it has been envisaged that it should normally be possible for the Disciplinary Authority to take final decision on the enquiry report within a period of three months. In cases where it is felt that it is not possible to adhere to this time-limit, a report may be submitted to the next higher authority indicating the additional period required and reasons for the same. It should also be ensured that cases involving consultation with the CVC and UPSC are disposed of as quickly as possible. 3. Though no specific time-limit has been prescribed in the above OM in respect of cases where consultation with CVC and UPSC is required, it is imperative that the time-limit of three months prescribed for other cases should be adhered to in such cases after receipt of the advice of the UPSC. All Ministries/Departments are, therefore, requested to dispose of disciplinary cases as quickly as possible within the time-limit indicated above.
[Govt. of India, Dept. of Per. & Trg., O.M. No. 11012/21/98-Estt. (A) dated 11-11-1998]

Entire amount of pecuniary loss

caused by an employee to be recovered


The undersigned is to directed to say that references are being received in this Department seeking clarification whether the instructions contained in DG, P & T Letter No. 3/313/70-Disc. I dated 17-8-1971 are applicable to Government servants in other Ministries/Departments also. 2. The DG, P & Ts instructions mentioned above provide that recovery from the pay of a Government servant as a punishment for any pecuniary loss caused by him to the Government by negligence or breach of orders, should not exceed 1/3rd of his basic pay (i.e. excluding Dearness Pay or any other allowances) and should not be spread over a period of more than three years. However, no such limits have been prescribed in the statutory rules, i.e., in Rule 11 (iii) of the CCS (CCA) Rules, 1965. 3. The matter has been examined in consultation with the Ministry of Law. It was observed that the DG, P & Ts instructions prescribed the procedure to effect the recovery of the amount levied as penalty in terms of Rule 11 (iii) of the CCS (CCA) Rules, 1965 and these procedural instructions cannot amend, supersede, or modify the substantive provisions of Rule 11 (iii) of the CCS (CCA) Rules, 1965. While it is expected that in imposing the penalty or recovery of pecuniary loss, the Disciplinary Authority should not display such severity that a Government servant suffers hardship disproportionate to his negligence/misconduct that led to the loss, it is not necessary to fix a rigid limit

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for the purpose of such recovery. The DG, P & Ts instructions would, therefore, be treated as unwarranted. Therefore, the implication of this OM is to recover the entire loss from the delinquent official but the recovery may be spread over till entire loss is recovered.
[Govt. of India, Dept. of Per. & Trg., O.M. No. 11012/1/2000-Estt. (A) dated 6-9-2000]

Honorarium to Inquiry Officers & Presenting Officers


(Extract) The proposal for payment of honorarium to IOs and POs has been approved by OFB subject to the stipulation that the system would be operational for a period of one year after which it would be reviewed by O.F. Board. Guidelines I. Honorarium is payable to part time IOs and POs when Rule 14 inquiries are completed within the time limit of six (6) months in accordance with the extant rules/procedures governing the matter. Honorarium is payable when Rule 14 inquiries pass through the following stages: a) b) c) d) e) f) g) III. Production of oral and documentary evidences on behalf of the prosecution, Production of additional evidences on behalf of the prosecution, if any Statement of defence on behalf of the delinquent Govt. servant (DGS), Production of oral and documentary evidences on behalf of the DGS, Examination of the DGS by the Inquiry Officer, Presentation of brief by Presenting Officer as well as Assisting Officer, Submission of Inquiry Report by the Inquiry Officer

II.

No honorarium is payable when the charge sheet is not contested by the delinquent Govt. servant, and the charges are accepted by the DGS in the first hearing itself. The amount of honorarium to Inquiry Officers shall be limited to Rs. 250/- as the minimum and Rs. 500/- as the maximum. Similarly, Presenting Officers are entitled, in deserving cases, to receive a sum of Rs. 100/- as minimum and Rs. 300/- as the maximum, as honorarium.
[OFB, Kolkata letter No. 1480/GENL/A/VIG/HON dated 16th April 2001]

IV.