CHAPTER XII
DISCIPLINARY PROCEEDINGS III
(ACTION ON REPORT OF THE INQUIRING AUTHORITY)
1. FINDINGS OF THE DISLCIPLINARY AUTHORITY
A(4)
1.1. The report of the Inquiring Authority is intended to assist the
disciplinary authority in coming to a conclusion about the guilt of the
Government servant. Its findings are not binding on the disciplinary
authority who can disagree with them and come to its own conclusion
on the basis of its own assessment of the evidence forming part of the
record of the enquiry.
1.2. On receipt of the report and the record of the enquiry the disciplinary
authority, if it is different from inquiring authority, will forward a copy
of the inquiry report to the Government servant concerned, giving him
an opportunity to make any representation or submission with the
following endorsement:“The report of the Inquiry Officer is enclosed. The disciplinary
Authority will take a suitable decision after considering the report.
If you wish to make any representation or submission, you may
do so in writing to the Disciplinary Authority within 15 days of
receipt of this letter.”
1.3. On receipt of his reply, or if no reply is received within the time
allowed, the disciplinary authority will examine the report and record of
the inquiry, including the points raised by the concerned Government
servant carefully and dispassionately and after satisfying itself that the
Government servant has been given a reasonable opportunity to defend
himself, will record its findings in respect of each article of charge saying
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whether, in its opinion, it stands proved or not.
1.4. If the disciplinary authority disagrees with the findings of the
Inquiring Authority on any article of charge, it will, while recording its
own findings, also record reasons for its disagreement.
2. Further enquiry
A(4)
If the disciplinary authority considers that a clear finding is not
possible or that there is any defect in the enquiry, e.g., the Inquiring
Authority had taken into consideration certain factors without giving
the delinquent officer an opportunity to defend himself in that regard,
the disciplinary authority may, for reasons to be recorded by it in writing,
remit the case to the Inquiring Authority for further inquiry and report.
The Inquiring Authority will, thereupon, proceed to hold the further
inquiry according to the provisions of Rule 14 of the CCA Rules, as far
as may be.
3. Further enquiry when Principles of Natural Justice have not
been observed
3.1. If the disciplinary authority comes to the conclusion that the inquiry
was not made in conformity with principles of natural justice, it can
also remit the case for further enquiry on all or some of the charges.
3.2. The discretion in this regard should be exercised by the disciplinary
authority for adequate reasons to be recorded in writing. A further
enquiry may be ordered, for example, when there are grave lacunae or
procedural defects vitiating the first enquiry and not because the first
enquiry had gone in favour of the delinquent officer. In latter type of
cases, the disciplinary authority can, if it is satisfied on the evidence on
record, disagree with the findings of the Inquiring Authority.
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3.3. In this context the following observations of the Rajasthan High
Court in Dwarka Chand Vs. State of Rajasthan (AIR 1959, Raj. 38) are
relevant:“If we were to hold that a second departmental enquiry could be
ordered after the previous one has resulted in the exoneration of a
public servant the danger of harassment to the public servant,
would in our opinion, be immense. If it were possible to ignore
the result of an earlier departmental enquiry, then there will be
nothing to prevent a superior officer, if he were so minded, to
order a second or a third or a fourth or even a fifth departmental
enquiry after the earlier ones had resulted in the exoneration of a
public servant.”
4. Action when articles of charge are held as not proved.
Having regard to its own findings on the articles of charge, if the A(4)
disciplinary authority is of the opinion that the articles of charge have
not been proved and that the Government servant should be exonerated,
it will make an order to that effect and communicate it to the Government
servant together with a copy of the report of the Inquiring authority if it
has not been given to him earlier), its own findings on it and brief reasons
for disagreement, if any, with the findings of the Inquiring Authority.
5. Imposition of a minor penalty
5.1. If the disciplinary authority is of the opinion that any of the minor A(4)
penalties should be imposed on the Government servant, it is not
necessary to give any further show cause notice to the Government servant
in such cases in the interest of natural justice or otherwise.
5.2. If the disciplinary proceedings had been instituted by a higher
authority competent to impose a major penalty and on receipt of the B(34)
report of the Inquiring Authority, it appears that a minor penalty will
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meet the ends of justice, the final order imposing a minor penalty should
be passed by the same higher disciplinary authority which had initiated
the proceedings and not by the lower disciplinary authority though he
may be competent to impose a minor penalty.
5.3. If the Government servant is one whose services had been borrowed
by one Department from another Department or from a State Government
or an authority subordinate thereto or a local or other authority, the
disciplinary authority will make an order imposing a minor penalty after
consultation with the lending authority. In the event of a difference of
opinion between the borrowing authority and the lending authority, the
services of the Government servant will be replaced at the disposal of the
lending authority.
5.4. In a case in which it is necessary to consult the Union Public Service
Commission, the disciplinary authority will forward the record of the
enquiry to the Union Public Service Commission for its advice and will
take the advice of that Commission into consideration before making an
order imposing a minor penalty. (See Chapter XVI).
6. Action when proceedings in which a major penalty is proposed
were initiated by an authority competent to impose minor penalty.
A(4)
6.1. If the disciplinary proceedings were instituted by an authority
competent to impose any of the minor penalties but not competent to
impose a major penalty and if such authority is of the opinion that any of
the major penalties should be imposed on the Government servant, it will
forward the record of the enquiry to the authority competent to impose a
major penalty who will take further action.
6.2. If the disciplinary authority to which the records are so forwarded is
of the opinion that a further examination of any witness is necessary in
the interest of justice, if may recall the witness and examine, cross-examine
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and re-examine the witness and may then take action for the
imposition of such penalty as it may deem fit.
7.
Consultation with the Union Public Service Commission.
In cases in which it is necessary to consult the UPSC, the
record of the enquiry, together with relevant documents will be
forwarded by the disciplinary authority to the Commission for advice
(c.f. Chapter XVI).
8. Final Order on the Report of Inquiring Authority
8.1. It is in the public interest as well as in the interest of the
employees that disciplinary proceedings should be dealt with
expeditiously. At the same time, the disciplinary authorities must B(70)
apply their mind to all relevant facts which are brought out in the
enquiry before forming an opinion about the imposition of a penalty,
if any, on the Government servant. In cases which do not require
consultation with the Central Vigilance Commission or the UPSC, it
should normally be possible for the disciplinary authority to take a
final decision on the enquiry report within a period of 3 months at
the most. In cases where the disciplinary authority feels that it is
not possible to adhere to this time limit, a report may be submitted
by him to the next higher authority indicating the additional period
within which the case is likely to be disposed of and the reasons for
the same. In cases where consultation with the UPSC and the CVC
is required, every effort should be made to ensure that such cases
are disposed of as quickly as possible.
8.2. After considering the advice of the UPSC, where the UPSC is
consulted, the disciplinary authority will decide whether the
Government servant should be exonerated or whether a penalty
should be imposed upon him and will make an order accordingly.
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In para 11.2 of Chapter X it has been indicated that the disciplinary
authority could after receiving the enquiry report in cases initiated under
Rule 14 impose a minor penalty also.
A(4)
8.3. In every case in which 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 or dismissal should be imposed. The disciplinary authority
may, however, impose any other punishment in any exceptional case
and for special reasons to be recorded in writing.
8.4. In determining the quantum of punishment, the disciplinary
authority should take into account only that material which the
Government servant had the opportunity to rebut. The object is to ensure
that no material of which the Government servant was not given prior
notice and which he was not given adequate opportunity of rebutting or
defending himself against should be taken into account for deciding the
extent of punishment to be awarded.
B(113)
B(16)
8.5. The order should be signed by the disciplinary authority competent
to impose the penalty. In a case in which the competent authority is the
President, the order should be signed by an officer authorised to
authenticate order issued in the name of the President under Article
77(2) of the constitution.
8.6. The Central Vigilance Commission tenders its advice in confidence
and its advice is a privileged communication. No reference to the advice
tendered by the Commission should, therefore, be made in any formal
order.
8.7. It may happen that a charged public servant may go to a court of
law either during the currency of the disciplinary proceedings or on
their completion, pleading inter alia that a copy of the advice tendered
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by the Central Vigilance Commission to the disciplinary authority had
not been made available to him and, therefore, the rules of natural justice
were violated. In such cases, the Commission should be consulted and it
would advice the disciplinary authority in regard to the drafting of the
affidavit in opposition mainly with reference to the matters dealt with in
the course of hearing before the Commissioner for Departmental Inquiries,
about procedural aspects of departmental inquiries or advice tendered by
it on the report of the Commissioner for Departmental Inquiries. The
Supreme Court in CA No.1277 of 1975- Sunil Kumar Banerji Vs. State C(56)
of West Bengal and others have held inter alia that the disciplinary authority
C(145)
could consult the Vigilance Commission and that it was not necessary for
the disciplinary authority to furnish the charged officer with a copy of the
Commission’s advice. This may also be kept in view for contesting cases
of the type mentioned in the previous paragraph.
9. Communication of order
9.1. The order made by the disciplinary authority will be communicated A(4)
to the Government servant together with:a)
a copy of the report of the Inquiring Authority, if not supplied
already;
b)
a statement of findings of the disciplinary authority on the
inquiring authority’s report together with brief reasons for
its disagreement, if any, with the findings of the Inquiring
Authority, if not supplied already;
c)
a copy of the advice, if any, given by the UPSC and where
the disciplinary authority has not accepted the advice of the
UPSC a brief statement of the reasons for such nonacceptance.
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9.2.
A copy of the order will also be sent to :(i)
the Central Vigilance Commission in cases in which the
Commission had given advice;
(ii)
the UPSC in cases in which they had been consulted;
(iii)
to the Head of Department or office where the Government
servant is employed for the time being unless the disciplinary
authority itself is the Head of the Department or office; and
(iv)
The SPE in cases mentioned in para.
10. Imposition of a major penalty on a Government Servant whose
services have been borrowed from or let to another
department, State Government etc.
A(4)
In respect of a Government servant whose services have been
borrowed by one department from another from a State Government or
an authority subordinate thereto or a local or other authority if in the
light of the findings in the disciplinary proceedings conducted against
him the borrowing authority at whose instance the proceedings were
instituted is of the opinion that any of the major penalties should be
imposed on the Government servant it will replace the services of such
Government servant at the disposal of the lending authority and transmit
to it the proceedings of the enquiry for such action as it may deem
necessary. The lending authority may, if it is also the disciplinary
authority, pass such orders thereon as it may deem necessary, or if it is
not the disciplinary authority submit the case to disciplinary authority
which will pass such order as on the case as it may deem necessary. The
disciplinary authority may make an order on the basis of record of the
enquiry transmitted to it by the borrowing authority or after holding such
further enquiry, as it may deem necessary.
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11.
Supply of papers to the Special Police Establishment.
In all cases where disciplinary action was initiated on the basis of
a report received from the SPE the following documents should be made
available to the SPE soon after a final decision has been taken by the
disciplinary authority:C(28)
a)
a copy of the report of the inquiring authority and a
statement of the findings of the disciplinary authority
together with brief reasons for its disagreement, if any, with
the findings of the inquiring authority;
b)
a copy of the advice, if any, given by the UPSC and where
the disciplinary authority has not accepted the advice of
the Commission, a brief statement of the reasons for such
non-acceptance; and
c)
orders passed by the disciplinary authority.
12. Scope of order of punishment
When passing an order of punishment, the disciplinary authority
should define the scope of the punishment in clear terms. It should be
self-contained and in the nature of a reasoned “speaking” order.
13. Withholding of promotion
13.1.
An order of punishment withholding a Government servant’s
promotion should clearly state the period for which the promotion is
withheld. The order will debar him from being considered for promotion
during that period, whatever be his seniority, merit or ability.
13.2.
Promotion could be withheld permanently. The imposition of
B(113)
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a punishment of a permanent nature should, however, be avoided as far
as possible as it is destructive of incentive for good work and improvement.
14. Recovery of pecuniary loss from pay of a Government servant
The penalty of recovery of pecuniary loss caused to Government
from the pay of a Government servant should be imposed only when it
has been established that the Government servant was directly responsible
for a particular act or acts of negligence or breach of orders or rules
which caused the loss. When ordering such recovery the disciplinary
authority should clearly state as to how exactly the negligence was
responsible for the loss. The order should also specify the number and
amount of instalments in which recovery to be made. The amount of the
instalment should be commensurate with the capacity of the Government
servant to pay.
15. Withholding of increments
When ordering the withholding of an increment the disciplinary
authority should give the period for which increment is withheld and
whether the withholding will have the effect of postponing future
increments.
16. Reduction to a lower stage in the time scale of pay for a
specified period.
Reduction to a lower state in the time scale of pay can be ordered
for a specified period only. In compliance with the requirements of Rule
11(v) of the CCA Rules and FR 29(i), when ordering a penalty of reduction
to a lower stage in the time scale of pay, the disciplinary authority will
indicate:(i)
the date from which the order will take effect;
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(ii)
the stage in the time scale of pay in terms of rupees to which
the pay of the Government servant is to be reduced;
(iii)
the period, in terms of year and moths, for which the penalty
will be operative;
(iv)
Whether the Government servant will earn increments of
pay during the period of such reduction; and
(v)
Whether on the expiry of such period, the reduction will or
will not have the effect of postponing the future increments
of his pay.
17. Reduction to a lower time scale of pay, grade, post or service
17.1.
The penalty of reduction to a lower time scale of pay, grade,
post or service may be imposed by disciplinary authority for a specified
period or for an unspecified period.
17.2. The order will give:
(i)
the lower time scale of pay, grade, post or service and stage
of pay in the said lower time scale to which the Government
servant is reduced;
(ii)
the date from which the order will take effect;
(iii)
where the penalty is imposed for a specified period, the
period, in terms of years and months, for which the penalty
will be operative;
(iv)
if the penalty is imposed for an unspecified period directions
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regarding conditions of restoration to the grade or posts or
service from which the Government servant was reduced
and his seniority and pay on such restoration to that grade,
post or service.
17.3.
If the order does not specify any period and simultaneously
there is an order declaring the Government servant permanently unfit
for promotion, the question of his promotion will not arise. In other
cases where the order does not specify any period, the Government
servant should be deemed to be reduced for an indefinite period, i.e. till
such date as on the basis of his performance subsequent to the order of
reduction, he may be considered fit for promotion.
18. Promotion during the currency of punishment of withholding
of increment or reduction to a lower stage in the time scale
of pay.
An officer whose increments have been withheld or who has
been reduced to a lower stage in the time-scale cannot be considered,
on that account, to be ineligible for promotion to a higher grade, as the
specific penalty of withholding of promotion has not been imposed on
him. The suitability of such an officer for promotion should therefore, B(18)
be assessed by the competent authority as and when occasions arise for B(24)
such assessment. In assessing his suitability the competent authority
will take into account the circumstances leading to the imposition of the
penalty and decide whether in the light of the general service record of
the officer and the fact of imposition of the penalty, he should be
considered as suitable for promotion. Even where, however, the
competent authority may consider that, in spite of the penalty, the officer
is suitable for promotion, effect should not be given to such a finding
and the officer should not be promoted during the currency of the penalty.
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19. Imposition of two penalties
19.1.
While normally there will be no need to impose two statutory
penalties at a time, the penalty of recovery from his pay of the whole or
part of any pecuniary loss caused by him to the Government by negligence
or by breach of order could be imposed along with any other penalty.
20. Reduction in rank to a post lower than that on which one was
recruited
The Supreme Court of India in the case of Nayadar Singh Vs.
Union of India [1989(1) SLJ 1] has held that one cannot be reduced in
rank to a post lower than one to which he was actually recruited.