Concluding summary 2.

Disciplinary Authority, Appointing Authority, Subordinate Authority, Inquiring

Authority – and thus a lot of authorities gather around an accused government/bank
employee/ officer with preliminary inquiry, suspension, formal inquiry, minor penalty,
major penalty, conduct rules, principles of natural justice, review, revision, appeal etc. for
the purpose of prompt disposal of disciplinary proceedings in conformity with statutory
rules. The objective of disciplinary proceedings is not only for meeting out proper justice,
but also for ensuring that a delinquent government servant is not left free-unpunished. One
wonders whether or not such an objective as given in the Manual of Disciplinary
proceedings can administer proper justice! On one side, disciplinary enquiries are initiated,
conducted and concluded by the administrative authority and on the other side, employees
are rushing to the courts of law for getting “Judicial Justice” over the “administrative
justice” already awarded. In many cases, the courts of law turn down the “Administrative
Justice” pronouncing that the “Justice Imposed” is infact “Not Justice”, rather is
“Miscarriage of Justice” or “Injustice Proper”.

How many Government employees are in a position to move the higher judiciary to get
justice in disciplinary proceedings? No doubt, it is an expensive affair and therefore many of
the lower level functionaries suffer the suffering – consoling themselves that they are
condemned to suffer the punishments, however, unpalatable they may be to them. A scrutiny
of the judgements in departmental inquiries from the courts of law will show that the “so
called inquiry authority, disciplinary authority, appointing authority” dispense justice with a
total ignorance of the basic rules and procedures in administration of justice. The Manual for
Disciplinary Proceedings, in its ‘Introductory’ itself, writes “An improper application of
disciplinary rules has led to many a guilty government servant escaping punishment”. What
does it mean? It means that the so called authorities are playing with the future of the
employees with their ignorance. What does the government do to rectify the defects? It is
learnt that no purposeful training is imparted to the inquiring authority to study rules and
procedures to administer proper justice in disciplinary proceedings. The impact is that many
inquiring authorities conduct the inquiries in the way they want them to be conducted.

Inordinate delay in initiating disciplinary proceedings, undue delay in completing the

proceedings, filing false minutes after conducting an inquiry, initiation of proceedings
without having any jurisdiction to do so, suspending employees without any justifiable
reasons, sugar-coating “public interest” to harass the employees, suspending government
servants with retrospective effect, retaining the suspended in that state for years together, not
conducting the review of suspension order within six months from the date of suspension,
conducting the inquiry without observing the basic principles of natural justice, imposing
penalties in an adhoc fashion, converting minor penalties to major penalty without giving
any regard to natural justice-principles etc. are found to be a few among the many grounds
on which the courts of law quash the enquiry proceedings, findings and judgements of the
administrative authorities. This shows how deplorable is the state of affairs!

An authority becomes an authority only when it is properly, fairly and justly

administered. Otherwise, it becomes misuse of authority or exercise of pseudo-authority.
The Appointing Authority, the Disciplinary Authority and the Subordinate Authority etc. as
the law calls them are not judicial functionaries. They are individuals having graduation or
post graduation in science, arts, commerce, education, social sciences or subjects of like
nature. They are, in general, journalists and by that reason alone they should not be entrusted
with quasi-judicial functions for which specialized knowledge in rules, laws, procedures and
their application in a judicious way become essential. These authorities are empowered to
award penalties which are very severe-more severe, sometimes, than the penalties imposed
by the penal laws of the Country. Withdrawal of increments for a period of time is
sometimes harder than the fine imposed by criminal courts. When increments are withdrawn
with cumulative effects, the total monetary loss to the employee during the period he is in
service and later during the period of his retirement may run to several thousand rupees and
this is as bad as a penalty imposed on a smuggler, drug-peddler or a hard core criminal,
Reduction in rank too has such irreparable penal; significance. Compulsory retirement,
termination, removal dismissal etc. have heavy and far-reaching penal impact, sometimes
more than incarceration for a life-time. Anyway, the light heartedness and the laxity with
which the administrative authorities impose penalties on accused government employees
become a topic of disheartening discussions and adverse criticisms in many circles. No
doubt, inequities should be conducted by an authority who can apply his mind in a judicious
way-or atleast in a quasi-judicial manner-so that there should not be any scope for
miscarriage of justice or allegation of pseudo-authority being exercised.

Disciplinary proceedings is conducted by “Authorities” and by that reason alone, that

victims of disciplinary proceedings become people who do not have any authority.
Appointing authority or Disciplinary authority (in certain cases) is empowered to inflict
penalty on the enquired. Examination, cross-examination, trial, equity etc. are conducted by
the “authority”. He sends up his “minutes” of inquiry without any recommendations as to
the penalty to be imposed on the delinquent. On the basis of the minutes, another “authority”
imposes punishments which may be very severe or light. This sort of imposition of penalty
by “Remote Control” might have come into existence because of certain technicalities and
legal requirements. This is felt to be an unjust procedure and there is a view that the
authority which conducted the quasi-judicial trial should be vested with the power of
imposing penalty / recommending penalty.

There exists a total confusion when the Manual For Disciplinary Proceedings lays down
the principle, that “Disciplinary Inquiries are fact-finding investigations by administrative
authorities to which the standards of a criminal trial cannot be imported”. First of all, the
disciplinary proceedings is not a “fact finding” investigation; rather it is a quasi-judicial
trial”. The courts of law, time and again, have reiterated that “Disciplinary proceedings,
before a domestic tribunal are of quasi-judicial character. Therefore, the minimum
requirement of the rules of natural justice is that the tribunal should arrive at its conclusion
on the basis of some evidence-i.e. the evidential material which with some degree of
definiteness points to the guilt of the delinquent in respect of charges against him. Suspicion
cannot be allowed to take the place of proof even in domestic enquiries (Nand Kishore V.
State of Bihar, A.I.R. 1978 SC 1277; (1978) 3 S CC 366).

The rule is that any “Authority” which moves the “Disciplinary Authority” for orders to
institute an enquiry shall conduct such preliminary enquiries as may be necessary to
ascertain whether prime facie grounds exists for disciplinary action. Nevertheless then are
number of instances in which disciplinary proceedings are initiated without conducting
preliminary enquiries. Since, all these irregularities are committed by some “authority or
another”, the helpless employees have to suffer the consequences by themselves if they do
not go to still higher authorities by an appeal or to a court of law by a litigation. There are
allegations that sometimes, preliminary enquiries are conducted in a ritualistic manner by
some favoured officers to be “authority” which decided to conduct such enquiries.
Invariably in some cases the “authority” instructs the officer conducting preliminary enquiry
to write a report in the way he/she wants it to be written. And there begins a series of
harassment to the employee. Later, an “Inquiry authority” comes to the picture and in some
instances, he too conducts the enquiry with bias, prejudices and preconceived notions about
the enquired. Still later comes a “punishing authority” who may award a penalty in the way
he wants. Since the Conduct Rules speak only of penalty, and no specific penalty for
specific misconduct, the p0unishing authority is at liberty to award any type of punishment
as he wants.

Since the inquires are conducted by the departmental authorities, they can adopt an
authoritarian attitude and approach towards the subordinate against whom the inquiry is
conducted. At the same time, the so alleged delinquent have to stand in folded hands
expressing submissiveness and ‘flat-attitude’. Though the Manual for Disciplinary
Proceedings assert that an enquiry is only a fact finding investigation – the courts confirm
that it is a quasi-judicial enquiry-the procedure prescribed is that of a trial by an inquiry
officer. In certain cases, the rule permits the appointment of lawyers to present and defend
the case before the inquiry office. In certain other cases, the rules permits the appointment of
presenting cum prosecuting officers in which case the delinquent is permitted to get the
services of another government servant to examine or cross examine the prosecution
witnesses. There are cases in which no presenting officers are nominated and in such
instances, the rule permits the inquiry officer to question the prosecution witnesses for
bringing out in evidence all points relevant to the inquiry on which a prosecution witness
may be able to testify with reference to the charge/s, statement of allegations and any new
facts which may have come/s to light during the course of inquiry. Here, the inquiry officer
has to function like a presenting officer and necessarily he becomes interested to see that the
witnesses testify all points with reference to the charge/s, statement of allegations and any
new facts which may have come to light during the course of the inquiry. Most
unfortunately and surely against the principles of fair and natural justice, the rules, in such
instances, do not allow the inquiry officer to cross examine the prosecution witnesses. This
in unjust and cannot be approved. The rules here are so framed that the inquiry officer
functions naturally and of necessity in a way prejudicial to the interest of the delinquent
employee.

No doubt, the rules work prejudicial to the interest of the delinquent employee. This is
further proved when the rule empowers the inquiry officer to cross examine only the defence
witnesses in all cases for which he himself functions as the presenting cum inquiry officer. It
is not understandable to the principles of natural justice to permit the inquiry officer to
perform as the presenting cum inquiring authority in a quasi-judicial proceedings. The
presenting cum inquiring officer who cross-examines the defence witness is not empowered
to cross-examines prosecution witnesses and it means that the rule expects a quasi-judicial
authority to function only as a prosecuting authority. This is nothing but miscarriage of
justice. There are valid case laws which say that cross-examination of defence witnesses by
the inquiring officer is in plain violation of the principles of natural justice.

Even otherwise, the inquiry officers’ honesty and impartiality in many cases are viewed
with suspicion by the delinquent employees. There are any number of court decisions to
prove this contention of the delinquent government servants. There are cases in which police
officers are appointed as inquiring authority. A delinquent may be a civilian employed in the
police department. If it is a proceeding in which no one is nominated as the presenting
officer, in such instances, the police officers themselves function as presenting-cum-inquiry
officers. Police Officers are well trained in prosecution work, they know to examine and
cross-examine witnesses and in such instances, what can a civilian employee who is not
similarly trained in prosecution work do? The well trained police officer in prosecution work
may cross-examine the defence witnesses, sometimes better than lawyers do, and the same
time the delinquent employee who is a laymen in legal procedure/art of cross examination
can but cut a sorry figure when he cross-examines the prosecution witnesses. The general
feeling is that only miscarriage of justice will be the outcome in all such disciplinary
proceedings in which police officers function as inquiry officers. The same situation comes
in the case of constables who face a disciplinary proceedings conducted by circle
inspectors/Dy. S.P. /S.P. and so on.

How many of the inquiry officers are really competent to conduct a domestic inquiry? Do
they possess adequate knowledge and expertise in conducting inquiries? My own researches
in this area shows to be quite disappointing. Most dishearteningly enough, it is found that a
good many inquiry officers take an attitude unfavourable to the accused in domestic
inquiries. They are inclined to think that their duty is to see, somehow or other that the
employee punished.
 Even police officers who are appointed to function as inquiry officers are accused of
adopting objectionable attitudes to delinquent employees. In Karunakaran Nair V. Union of
India (1985 K L T 680), the presenting officer was an inspector of police. The delinquent
pleaded for permitting him to engage a lawyer to defend him. The request was summarily
rejected and the delinquent was punished. A suit was filled before the court and the court
observed that: Normally a layer has no place in a disciplinary inquiry. But, when the
presenting officer, even if he is not a lawyer, is one who is well trained in prosecution work
and if the delinquent officer cannot have the services of a legally trained person and is
allowed only to have the services of a colleague of his who, in the normal course, will not be
well trained in the subject, it goes without saying that, that will be nothing but denial of an
opportunity to the officer to defend himself in the disciplinary inquiry. In this case, the C.B.I
Inspector who was the presenting officer, in the normal course, was more than a lawyer and
the denial of the services a lawyer to the delinquent officer was nothing but denial of natural
justice to the delinquent office, and this has vitiated the whole discipline inquiry. Stating so,
the court set aside the order of the punishing authority. If such ignorant person sits on the
seat of the Inquiring Authority, the harm caused to the accused employee can be more or
less imagined.
Whatever may be the justification the administration has to put forward in framing rules
to conduct disciplinary proceedings with authorities ignorant about the basics in fairness,
justice and objectiveness, one can not appreciate the state of affairs presently seen in
departmental inquiries. Most shockingly, the penalties prescribed for the misconduct of
employees are really severe in many ways and are having ramifications in several
dimensions. To see that such penalties are awarded after conducting disciplinary
proceedings in a ritualistic fashion by “authorities” having little or no knowledge in the
subject is really disheartening. Presenting officers, defending officers, inquiry officers – all
these nomenclatures are good to hear, but are of no value when they are ignorant about the
fundamentals of inquiry proceedings. As it is, the delinquent employee is deprived of getting
the services of a legally competent person to defend his case especially when no legal expert
has been nominated to present the case. Even when legal experts appear to present and
defend the case before the inquiry officer, they see an “authority” quite incapable of
understanding the legal jargons and technical words. In one case, the inquiry authority did
not understand the meaning of the words “Locus standi”. In another instance, the implication
of the words “jurisdiction of the inquiry authority” could not be made clear to the officer
inspite of several hour’s argument. All these show that there takes place mockery of justice
in a good number of the disciplinary proceedings.

The injustice or miscarriage of justice done to the middle level and lower level
functionaries in administration is known to many. As such, many Service Associations come
forward to aid the affected employees to win over the battle. Many Service Associations
have huge funds at their disposal so much so that they come forward to extend their help and
financial assistance during a period when the delinquent employee is under suspension. The
authorities in some cases do not sanction the subsistence allowance in time and in many
instances, it is found to be a calculated attempt to victimize the suspended employees. The
Service Associations are fully aware of this sort of vindictiveness and that is the precise
reason why they come forward to support the employees with financial assistance. The
leaders of the Service Association meet and exert influence, politically and otherwise, upon
the disciplinary authorities to see that gross injustice is not done to the delinquent
employees. They also come forward to appear for the employees during the inquiry
proceedings and if necessary to take up the case to the courts of law. There are cases in
which the disciplinary authority himself is transferred out owing to his atrocious attitude
towards the employees.

In some States in India, Service Associations have become very powerful so much so that
the “authorities” are diffident to take disciplinary action against employees even in
deserving cases. As a result, they ignore or overlook delinquencies committed by the
employees. “Don’t fight with the Employees” – seems to be the developing attitudes. Any
authority has got its limitations and in a democracy, it is to a considerable extent, controlled
by the vote banks. The Service Associations of lower level and middle level functionaries in
Government contain a large number of people who are the vote banks and therefore they are
being sponsored and patronized by political leadership. The authority in power seems to be
afraid of the Service Associations so much so that they think several times whether or not
disciplinary proceedings should be initiated against employees if they are actively engaged
in “Association” works.

Who is this “Authorities” in a democracy? They are individuals who occupy certain posts
and in many instances, they continue in the post because of political patronage. No person is
indispensable in government service and as such an officer who honour the post of an
“Authority” can be transferred out if that needs be in a democracy. If that is the case, no
authority is permanent in a democratic rule. Officers come and occupy posts and they enjoy
some authority – may be disciplinary, may be appointing, may be subordinate, maybe
inquiring. And they know that fighting with employees cannot solve problems. When a lion
and a cat fight each other, the cat may be killed, but at the same time, the lion may be
seriously injured. Who is the lion in Government services? The authorities may be inclined
to think that they are the “LIONS”. The service Association Members may think that they
are also the “LIONS” and the fight may continue. An Association consists of a “group of
people” whereas an Authority comprises only of an “individual”. In a fight between an
“individual and a group”, the success depends upon many factors other than authority per se.
Anyway, the “Authority, Association, Individual, Group, Delinquent Employees,
Misconduct, Political Pressure and Patronage, Discretion, Discrimination, Minor and Major
Penalties, Aid and Assistance to Delinquent Employees, Helplessness of the authorities,
Gross Injustice, Court Interference, Media Coverage, Vote Banks, the Rules etc.” do affect
the disciplinary proceedings in Government Services. A total confusion is seen everywhere.
 I have written the above lines not frighten or disabuse the minds of prospective defence
representatives’ but know the responsibilities in their hand which will hasten determination
to swim against the currents of the present order and still win the battle for the unfortunate
employees. I repeat truly speaking, to prove and to disprove a case on any account before
quasi-judicial tribunal or before the higher judiciary, is indeed, “a fight between a Goliath
and Dwarf in an industrial Arena”. Therefore, the fight between the employer and the
employee for any reason, whatsoever, is not appropriate match and it is observed that the
employer has the growing tendency, whether, in the public sector undertaking or in the
private sector undertaking, to pursue endless litigation from deck to deck on the ‘hollow
plea’ and to keep the “workmen jobless” for an unusually longer period and/or to deprive the
working class of the legitimate benefits by advancing this plea or that pleas mentioned in
detail as above , if it is proved, he will be visited with penal consequence and it may be so
that he may be losing his bread, and therefore, while proving the case, the representative of
the ‘Goliath’ is not gaining anything and again even if he is unable to prove the case, he will
not be losing anything, but there will be a great loss to ‘Dwarf’ i.e. the concerned employee,
when the charges are proved. Hence, it could be visualized how heavy is the responsibility
of the Representative of the ‘Dwarf’, who is ultimately to make endeavour to exonerate the
Dwarf i.e. the employee. With that end in view, I have devoted my attention to the various
intricacies of the problem and devised ways and means to disprove the charge. Here, in this
book, I have discussed the tools and mechanisms of disproving the case, i.e. the charge, be
it before the departmental enquiry with real life case studies, mock enquiries , real reply to
charge sheets etc. which I presume will useful to trade union defence representatives and
grass root level activists . With that sense of justice infused into me by my parents, my wife
,my daughter my close friends and he ingratitude I faced from some leaders , after 33 years
of sincere dedicated life i.e 50 % of life time in a banking trade union I cannot now
withstand the gross injustice done by the so named authorities while they conduct
disciplinary proceedings in official transactions.

Dare to struggle dare to win !

Love
Chinu