The responsibility of anti-corruption measures in the Central Government is
shared by :
(i) Administrative Vigilance Division in the Department of Personnel &
Training (AVD)
(ii) Central Bureau of Investigation (CBI)
(iii) Domestic Vigilance Units in the Ministries/Department, Public Sector
Undertakings/Nationalised Banks.
(iv) Central Vigilance Commission (CVC)
SET-UP OF CENTRAL VIGILANCE COMMISSION
The Central Vigilance Commission was set up in 1964 by a resolution of
the Government in pursuance of the recommendations of the committee on
Prevention of Corruption headed by Shri K. Santhanam and popularly known as
Santhanam Committee. This Committee reviewed the arrangements for checking
corruption in Central Services and observed that the handling of the anti-
corruption work by the Ministries/Departments themselves was not a healthy
practice. It felt that the administration should not be the sole judge of its ownconduct. It recommended setting up of the Central Vigilance Commission,
independent of the Government.. The Commission was expected to deal
comprehensively with prevention of corruption and maintenance of integrity in
the Public Services. In its functions the Commission enjoys the same measure of
independence and autonomy as the Union Public Service Commission. The
Commission generally acts in the field of preventive, detective and punitive
vigilance.
COMPOSITION OF THE CENTRAL VIGILANCE COMMISSION
Earlier CVC used to be a one man Commission. It has now been made amultimember body with a Chief Vigilance Commissioner and four Vigilance
Commissioners. The Chief Vigilance Commissioner and Vigilance
Commissioners are to be appointed by the President by a warrant under his hand
and seal. They can be removed or suspended from office in manner provided for
the removal or suspension of the Chairman or a Member of the Union Public
Service Commission.
The Organisation of the Chief Technical Examiner, which was initially
functioning under CPWD also comes under Central Vigilance Commission. It
consists of two CTEs of Chief Engineer’s level, 8 Technical Examiners, 6
Assistant Technical Examiners and 5 Technical Assistants. This Organisation
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undertakes intensive technical examination of works undertaken. It also
scrutinises contracts and tender documents from the vigilance point of view.
The commission has recently been made a statutory body. It is not
subordinate to any Ministry/Department and has the same measure of
independence and autonomy as UPSC.
JURISDICTION
The Commission’s jurisdiction extends to all matters to which the
executive power of the Union extends. Hence, the cases of the employees of the
Central Government, Union territories, public Undertakings and Nationalised
Banks are to be referred to Commission. However, the Commission has
restricted its authority due to practical reasons. The commission tenders advice
in individual disciplinary cases in respect of Gazetted officers of the Central
Government. (It has now been decided that cases of only Group A officers should
be referred to the Commission). However, if the first stage advice of CVC hasbeen obtained in a composite case involving Gr. B, C & D officers/officials and if
the tentative decision of their disciplinary authority in the disciplinary case is at
variance with the first stage advice of the CVC, then the case of such Gr. B, C &
D officer/ official has also to be referred to CVC for second stage advice through
DOT. Cases of Board level appointees in Public Sector Undertakings, Officers
in Scale III and above in Nationalised Banks, Officer of Port Trusts/Dock
Labour Boards with a minimum pay of Rs 1760/- etc. are referred to the
Commission for advice. The commission also exercises a general check and
supervises vigilance work done by Departments/Organisations through
prescribed quarterly procedures, practices and general co-ordination with a
view to maintaining integrity in administration.
The functions of the commission are purely advisory. Its advice is not
binding on the disciplinary authority. The final decision rests with the
disciplinary authority. However, whenever there is any departure from the
Commission’s advice, the reasons for doing so have to be intimated to the
Commission. Such cases are included in the Annual Report of the Commission
which is placed before both the Houses of Parliament. This serves as a check on
the disciplinary authority for differing with the advice of the Commission.
PUNITIVE FUNCTIONS
The Commission has powers to :-
(i) undertake or have an inquiry made into any transaction in which a public
servant is involved;
(ii) cause an inquiry or investigation made into a complaint of corruption,
lack of integrity on the part of public servant;
(iii) ask the Central Bureau of Investigation to register a regular case and
investigate; or
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(iv) entrust the complaint, information or case of inquiry to the
Ministry/Department for investigation.
CONSULTATION WITH THE COMMISSION
The Commission tenders advice at two stages. The first stageadvice will indicate the nature of action to be taken against theGovernment servant, whose conduct has been investigated. Thecommission advises whether minor or major penalty proceedingsshould be initiated. At the second stage advice, the Commissionconsiders the report of the Inquiry officer and advises thedisciplinary authority about the penalty to be imposed. Allreferences to the commission must be made at the level of the ChiefVigilance Officer or Deputy Secretary/ Director in Department.Where the Department differs with the advice of the Commissionand desire reconsideration by the commission, cases should bereferred to the Commission with the approval of Secretary of theDepartment. The Commission advises in all matters having avigilance angle in which public servants of the Central Governmentor the Administration of a Union Territory or an employee of a PublicUndertaking or a Nationlised Bank is involved. The case havingvigilance angle are broadly as follows :
(i) Cases of corruption, cheating, bribery, misappropriation, fraud and
lack of integrity;
(ii)
Cases of abuse of official power/authority for self gain or for anyoneelse.;
(iii) Cases in which a government servant has caused substantial loss to
government as a result of grave/deliberate negligence or indulged in
nepotism;
(iv) Cases of disproportionate assets.
Disciplinary proceedings resulting from purely administrativelapses are not referred to Commission. Department investigation
reports are required to be sent to the Commission for their advicewhere the Commission had asked for investigation as well as wherea Gazetted Officer is involved. The report to the CBI is sent to theDepartment concerned with a copy to the Commission. TheDepartment is required to submit its comments to the Commissionwithin one month.
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Each Ministry/Department has a Chief Vigilance Officer, who functions as a Special Assistant directly accountable to theSecretary of the Department/Ministry. He keeps a close liason with
the Commission and the CBI. Chief Vigilance Officers are appointedin consultation with the Commission. The Commission exercises final authority in this regard. No person, whose appointment asChief Vigilance Officer is objected to by the Commission, can be soappointed. The Commission assesses the performance of ChiefVigilance Officers. The Vigilance Officers in subordinate offices arebe appointed with Chief Vigilance Officer’s approval. Depending onthe work-load, the Chief Vigilance Officer in theMinistry/Department is assisted by an Under Secretary and one ortwo Vigilance Sections under him. In some Departments
investigating machinery as well as Inquiry Officers also functionunder the charge of the Chief Vigilance Officer.
Vigilance Set up in Deptt of Telecom
Vigilance Wing in the Deptt of Telecom is headed by Sr.DDG (Vig.),who is the CVO of the Department. There are DGM(Vig.)/VigilanceOfficers in all Circles. In Telcom Districts, vigilance work is lookedafter by DE (Vig) or SDE (Vig). Cases of all Group A officers arehandled by the Vigilance Wing at the Headquarters of theDepartment of Telecom and all other cases are now to be processed
by Bharat Sanchar Nigam Limited CorporateOffice/Circles/Districts. All references to the CVC or UPSC aremade by the Vigilance Wing of Department of Telecom.
MAINTENANCE OF VIGILANCE REGISTERS AND SUBMISSIONOF REPORTS AND RETURNS
REGISTER – I
(i) Maintained by all Chief Vigilance Officer in two parts. In this register all
receipts like complaints, audit reports, etc. having vigilance angle are
entered in a chronological order but anonymous/pseudonymous
complaints are not entered, this is primary shifting of data.
(ii) Quarterly statement.. It is submitted about vigilance complaints, etc.
entered in this register.
(iii) A quarterly statement is also submitted to the Commission regarding
‘Inspections’ carried out from vigilance angle and cases instituted
because of vigilance inspections.
Both these statements are furnished to the Central Vigilance Commission for theQuarter ending March, June, September and December.
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A quarterly return is sent to the Commission for the Quarterending March, June, September, and December, giving particulars
of each case of suspension beyond two years with reasons.
REGISTER – II
It is to be maintained in two parts - A&B
Case of Preliminary investigation : Quarterly return in statement 2A, 2B for
the quarter ending March, June, September and December is submitted to the
Commission along with a quarterly return on prosecution cases on category ‘B’
officers.
A bi-monthly return is also submitted to the Commission in which progress of each case of prosecution of category ‘A’ officer is reported.
REGISTER – III
This is also to be maintained in two parts- ‘A’ and ‘B”indicating progress of disciplinary proceedings conducted bydepartmental authority . A quarterly return is submitted instatement 3A and #B.
A four monthly return indicating names, designations,telephone Nos. addresses, etc is required to be sent to the CentralVigilance Commission by the second week of April, August, andDecember
RETURN OF CIVIL WORKS
A quarterly list of major civil works costing more than Rs 1 crore,
electrical works Rs.15 lakh and above Horticulture works costing Rs.2 lakhs andabove is required to be submitted to CTE by 5
th of January, April, July and
October giving details of location, estimated cost, date of commencement, date
of completion, percentage of progress, Chief vigilance Officer will also give a
list of about 10% of these works requiring ‘vigilance inspections’
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CONSTITUTIONAL PROVISIONS RELATING TOSERVICE CONDITIONS AND DISCIPLINARY
PPROCEEDINGS
309. Recruitment and conditions of service of personsserving the Union or State :
Subject to the provisions of this Constitution, Acts ofappropriate Legislature may regulate the recruitment, andconditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any state:
Provided that it shall be competent for the President or such person as he may direct in the case of services and posts inconnection with the affairs of the Union, and for the Governor of aState or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rulesregulating the recruitment, and the conditions of service of personsappointed, to such services and posts until provision in that behalfis made by or under an Act of the appropriate Legislature under thisArticle, and any rules so made shall have effect subject to the provisions of any such Act.
310. Tenure of office of persons serving the Union or a State
(1) Except as expressly provided by this Constitution, every personwho is a member of a defence service or of a civil service of theUnion or of an All India Service or holds any post connected withdefence or any civil post under the Union, holds office during the pleasure of the President, and every person who is a member of acivil service of a State or holds any civil post under a State holdsoffice during the pleasure of the Governor.
xxxx xxxx xxxx xxxxx xxxxxxxxx
311. Dismissal, removal or reduction in rank of personsemployed in civil capacities under the Union or a state:
(1) No person who is a member of a civil service of the Union oran All India Service or a civil service of a State or holds a civil postunder the Union or a State shall be dismissed or removed by anauthority subordinate to that by which he was appointed .
(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 opportunity of being heard in respect of those charges.
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The expression ‘Natural Justice’ is derived from the old expression’jus naturale’ i.e. justice which comes naturally to a man or which is part of his nature. It has been defined as ‘Natural sense of what isright and what is wrong’. This natural sense of right and wronghas been accepted in the judicial systems since time immemorial.There were times when the principles of natural justice wereconsidered supreme, even having supremacy over codified laws. Itwas considered that the law of nature was infused into the heart ofman by God at the time of creation of man itself. These principleswere infused into the heart of man for his preservation and directionand this was therefore eternal and moral law since it was written
with the finger of God in nature.
Keeping this in mind, the most eminent judges of 17 th centuryupheld the supremacy of Natural Justice over the Statutory Law. Itwas held that the law of nature is immutable as it came before any judicial or Municipal law. It was held that even the Acts passed byParliament, if these were repugnant to the law of nature, would bevoid. According to this interpretation even an Act of Parliamentmade against natural justice and equity, as to make a man judge inhis own cause, was held as void as the laws of nature wereconsidered immutable. However, the thinking has changed over a
period of time and it is now considered that the general principles ofnatural justice cannot modify the statutory law and no court cantake a view that an Act of Parliament is not binding if it is contraryto reason or principles of natural justice.
It is now accepted that a court of justice cannot set itself above theLegislature. If an act of Parliament expressly authorizes a procedure inconsistent with the principles of natural justice, thenthat has to be followed, because the law of Parliament is supreme.A distinction has, however, to be made in as much as that the principles of natural justice are applicable where the statutory lawas made by Parliament is silent about the procedure where once aview was held that the principles of natural justice are supreme andabove the laws of the land, the position has now been reversed.The position prevailing now is that the principles of natural justiceare not constructed to over-ride statutory laws.
A law can be passed by the Indian Parliament violating the principles of natural justice and such law shall not be void. Any lawwhich is repugnant to the express provisions of the Constitutionalone
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is struck down as void. Thus the law providing for preventivedetention without trial is a valid law in India. The Supreme Courthas observed, “the aim of rules of natural justice is to secure justice,or to put it negatively to prevent miscarriage of justice. These rulescan operate only in areas not covered by any law validly made. In
other words, they do not supplant the law but supplement it”.Whereas the duty of the courts, quasi-judicial tribunals orauthorities to follow the law as enacted by the legislature, they arenot debarred from reading into it the principles of natural justice ifthese can be read in consonance with the provisions of the law. If,however, the law provides for a procedure which excludes the principles of natural justice either by a specific provision or bynecessary implication, these principles cannot be read into the lawby the courts/quasi-judicial tribunals or administrative authorities.
2. Principles of Natural justice
1. ‘ audi alteram partem ’ which denotes ‘hear the other party’ or in other words ‘no one shall be condemnedunheard’
2. ‘ Nemo debet esse judex in propria causa ’ meaningthat no one shall be judge in his own cause.
3. The final order must be a speaking order .
4. The decision must be made in good faith that is justice
should not only be done but should manifestlyappear to have been done.
3. First Principle
The first Principle of natural justice, i.e. ‘Audi alteram partem’(hear the other side) means that no person shall be condemnedunheard. A natural corollary of this principle is that the partyagainst whom the proceedings are launched should have areasonable notice of the case he is called upon to meet. Thereasonableness of the notice is a question of fact to be ascertainedin each case. However, notice implies that the person concerned isnot only informed of the allegations against him but also theevidence supporting the allegations. The other requirement is thatthe person should be given a fair chance of being heard andallowed to rebut or explain the allegations leveled against him. Thishe can, only if, he is allowed to cross examine the witnesses produced in support of the allegations, produce witnesses anddocuments in his own defence. In short he should have a fairopportunity to state his case and to meet the allegations madeagainst him. This principle of natural justice also imposes another
restriction that no evidence shall be recorded at the back of the party. But if a party fails to avail of the opportunity afforded to it for
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hearing because of its own willful omission or neglect, then it isdebarred from pleading that the principles of natural justice havebeen violated in its case. In T.R Verma’s case the Supreme Courthas laid down the following three conditions, which if satisfied,would amount to reasonable opportunity having been afforded:
(i) the adjudicator should receive all the relevant material whicha party wishes to submit in his support.
(ii) The evidence of the opponent whether oral or documentaryshould be taken in his presence.
(iii) Each party should have the opportunity of rebutting theevidence of the other by cross examination or explanation.
If the above conditions are met, the principles of natural
justice are deemed to be complied with substantially.
4. Second Principle
The second principle that no one shall be a judge in his own causenecessarily implies that the tribunal or the judge must be impartialand without bias. The judicial or quasi-judicial authority should notonly himself not be a party but also not be interested as a party inthe subject matter of the dispute which he has to decide. ‘ Judges,like Ceaser’s wife, should be above suspicion’. It is of fundamentalimportance that justice should not only be done, but should
manifestly and undoubtedly be seen to be done. It is therefore,clear that a decision of a tribunal is vitiated by the mere fact that aninterested person sat at the hearing. Supreme Court have held thatthe selection was vitiated because one of the persons on theselection Board was himself a candidate for the post for which theSelection was held. In such a case the bias of the Selection Boardwas obvious. In order that a judge or quasi-judicial authorityshould be impartial it must be free from bias of any kind.
KIND OF BIAS
Bias can normally take three forms, namely
(i) Pecuniary bias;
(ii) Personal bias and
(iii) Bias in the subject matter or official bias.
Pecuniary Bias
A pecuniary interest, however slight, will disqualify the
person to be a judge in the case. Thus in the case of Air CorporationEmployees Union Vs Vyas the proceedings were held that the
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Chairman of the arbitrators had accepted the hospitality of the AirCorporation on an inaugural flight. Similarly, share holders in aRailway Company were held to be disqualified from hearingcharges against ticket less passengers even though the interest ofeach share-holder was less than one fourth of a pence. However,
mere trusteeship of a friendly society would not constitute a pecuniary interest to disqualify a trustee.
Personal Bias
A judge may sometime have personal bias towards a partyowing to relationship and the like or he may be hostile to a party asa result of events happening either before or during the trial.Whenever, there is an allegation of personal bias it should be seenwhether there is in the mind of the accused a reasonableapprehension that he would not get a fair trial. The test, therefore,
is that there should be a reasonable likelihood of bias. The phrasereasonable likelihood has been defined by the Supreme Court byobserving that the reasonable likelihood would be assumed if in themind of a reasonable man there is a suspicion that there is alikelihood of bias.
Bias in subject matter
The bias in the subject matter or official bias must be specific.Thus a judge should not try a case in which he has examinedhimself as a witness. The Supreme Court has held that a personcould not be a judge and the witness at the same time. Meregeneral interest in the general object to be perused would notdisqualify the judge. For example it has been held that a Magistratewho subscribed to the society for prevention of Cruelty to Animalswas not thereby disqualified from trying a charge brought by thatbody, of cruelty to a horse.
In all the above cases of bias, the party is required to raise theobjection of bias at the earliest possible opportunity. Thus, if a party who with full knowledge of the facts constituting bias does not
raise the objection, it will be assumed that the party has expresslyor impliedly waived his right. In these circumstances, the objectionif raised later has to be overruled.
5. Third Principle
The third principle of natural justice demands that the final ordershould be a speaking order. A speaking order is one whichcontains the reasons for the conclusions reached. Now whether the judge has considered the evidence before him or not can only beascertained if the final order is a speaking order. It has been held
that if an order does not give any reasons, it does not fulfil theelementary requirements of a quasi-judicial process. A plea was
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taken in a case before the court that giving the reasons mightinvolve delay. Rejecting this contention, the court observed:
“The least a tribunal can do is to disclose its mind as disclosureguarantees consideration. The condition to give reasons minimises
arbitrariness, it gives satisfaction to the party against whom theorder is made; an it also enables an appellate or supervisory courtto keep the tribunal within bounds”.
6. Fourth Principle
The principle that the decision must be made in good faith isderived directly from the principle that no one shall be a judge in hisown cause. This presupposes the impartiality of the judge and thathe should be without any bias. The decision must be made in good faith implies that it is based on evidence adduced during the trial or
enquiry; that it has been arrived at without favour to any of the parties; that he has followed the procedure in such a manner that justice is not only done but manifestly appears to have been done.
7. Applicability of the Principles of Natural Justice todisciplinary proceedings.
The principles of natural justice are imported into the disciplinary proceedings by virtue of the provisions of the Article 311(2) of theConstitution of India. Article 311 (2) provides for ‘reasonableopportunity’ being given to the charged Govt. servant before
imposing on him the penalty of dismissal, removal or reduction inrank. However, reasonable opportunity has not been defined in theConstitution and hence, the principles of natural justice becomeapplicable during the departmental inquiry. It would thus benecessary to appoint an impartial enquiring authority to enquire intothe charges against the government servant. A prosecution witnessor a person, who has any kind of bias, cannot be appointed as anInquiring Authority. It is also necessary that fair opportunity is provided to the charged govt. servant during departmental inquiry toenable him to put forth his point of view comprehensively before the
enquiring authority with the aid of oral and documentary evidence.The final report of the enquiring authority as well as the final orderof the disciplinary authority imposing a penalty has to be aspeaking order.
8. Conclusion
To sum up, the principles of natural justice are applicable to judicial and quasi-judicial proceedings generally unless theiroperation is ruled out by the specific and positive provisions of astatute or law or by its necessary implication. These rules are not
applicable in respect of purely administrative orders which arerested on subjective discretion, but may be applied where the
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administrative authority is called upon to decide objectively orwhere its decision is likely to affect the other party prejudicially to agreat extent. These principles are intended to ensure fair play and justice or to avoid miscarriage of justice. The position has beensummarized in a court judgement as follows:
“All inquiries, judicial, departmental or other, into the conductof individuals must conform to certain standards. One is that a person proceeded against must be given a fair and reasonableopportunity to defend himself. Another is that a person chargedwith the duty of holding the inquiry must discharge that dutywithout bias and certainly without vindictiveness - He mustconduct himself objectively and dispassionately not merely duringthe procedural stages of the enquiry, but also in dealing with theevidence and the material on record when drawing up the finalorder. A further requirement is that the conclusions must be restedon the evidence and not on matters outside the record. And, when itis said that the conclusion must be rested on the evidence, it goeswithout saying that it must not be based on the misreading ofevidence. The requirements are basic and cannot be whittled down,whatever be the nature of the inquiry judicial, departmental orother. However, where the inquiry is judicial, we insist that yetanother requirement should be complied with, that is contained inthe familiar statement that it is not sufficient that justice is done butthat justice should also manifestly appear to be done.”
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A Govt servant has a servant and master relationship withthe Govt which implies that:
• The employee has to be faithful, honest and possessed with good
character.
• The Govt has right to prescribe rules of procedure to control the way
of his working.
• The employee should be capable of the work for which he is
employed.
• The employee is bound by every lawful order of the Govt in his sphere
of work.
• The employee has to take proper care of the property entrusted to
him.
• The employee should have accountability in matters relating to his
employment.
Above conditions imply that an employee would be guilty ofmisconduct if his conduct -
• Is or may be prejudicial to the interests or reputation of his employer.
•
Is incompatible or inconsistent with the faithful discharge of hisduties towards his employer.
• Is unsafe for his employer.
• Is so immoral that the employee cannot be trusted.
• Creates an impression that the employee is not faithful.
• Makes him open to temptation not to perform his duties faithfully.
• Is rowdy and disturbs the peace at place of work.
• Is insulting and reflects disobedience incompatible with servant and master
relationship.
• Reflects habitual negligence.
•
Is likely to cause serious consequences.
In addition to the conditions implied in the servant andmaster relationship, Govt have laid down certain restrictions onthe conduct of the Govt servants relating to various matters, witha view to ensure that the Govt servant is able to perform hisduties, without fear or favour in a totally impartial manner.
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FR 11- The whole time of a Government servant is at thedisposal of the Government servant.
GFR 6 – Every officer has to exercise the same vigilance inrespect of the expenditure incurred from the Govt money as a person of ordinary prudence would exercise in respect ofexpenditure of his own money
Family (Rule 2)
A number of these restrictions apply not only to the Government
servant but also to members of his family which include:-
• Wife or husband,
• Son or daughter (including step-son and step-daughter) wholly dependent
on the Govt servant
• Any person related by blood or marriage to the Govt servant or spouse
and wholly dependent on the Govt servant
General conduct (Rule 3)
1. Every Govt servant is required at all times to maintain absolute integrity ,
devotion to duty and do nothing which is unbecoming of a Governmentservant.
• Integrity means honesty or purity. Lack of integrity implies dishonesty
i.e., doing something with the intention of causing wrongful gain to one
person or wrongful loss to another.
• Absolute integrity implies that a person should not only be honest but
also appear to be so.
• Devotion to duty means faithful service.
• Habitual delay in performance of tasks and lack of expected quality in
performance would mean lack of devotion to duty.
• Unbecoming conduct implies unsuitable, indecorous, improper conduct in
official or private life and generally covers the misconduct not specifically
referred to by any other conduct rule. Broadly speaking a conduct would be
unbecoming, if it is
not in conformity with the ordinary norms of decency and morality prevalent
in the society or
not in consonance with the laws of land or
is against the declared policies of the Govt
deliberate breach of any rules regulations etc.
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INVESTIGATIONS OF COMPLAINTS,COLLECTION OF EVIDENCE, FORMATTING OFREPORTS AND FRAMING OF CHARGE SHEET
Telecom frauds are the result of weaknesses in theadministrative and operational procedures of the Network orTechnological deficiencies which are exploited through unlawfulmeans by those who are engaged in fraudulent activities to achieveunfair gain. Therefore, complaints are likely to arise against thosewho are engaged in the operation of the Network. There can bevarious sources of complaints and the complaint may be signed orunsigned. Audit reports, press reports, surprise checks, source
information of other related matters may create cases forinvestigations.
2. Whenever any complaint is received through any source, it isto be decided whether a complaint is to be investigated or not to beinvestigated depending upon the gravity of allegation andverification worthiness of the facts. Once it is decided toinvestigate, the complaint must be investigated by only one agencyi.e. either departmentally or through CBI only.
3. The allegations contained in the complaint should be studiedcarefully and investigation should be done for those which arecapable of verifications. Thereafter the procedures of investigationare to be decided including the selection of the investigating officer.
4. The essence of investigation lies in the collection of rightfulevidence which must establish the allegations contained in thecomplaint. The evidence may include the information regarding theRules, procedures and practices relevant to the transactionapplicable in the organization. The list of witnesses and list ofdocuments reinforcing or proving the establishment of the
allegations will form part of the evidence.
5. The interrogation of the complaint, SPS or witnesses shouldbe done in a well thought manner and method to be adopted forrecording statement must be decided carefully in advance andkeeping allegations in mind which are under investigation. It mustbe kept in mind that hear-say evidence without primary evidence isof no use. The investigator does the fact finding task and shouldcollect all the available information in the form of statements,documents and witnesses appropriate to the allegation. Theevidence collected must help in writing the report with clarity andaccuracy and bring out the misconduct of those who are prima facie
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involved and clear the suspicion in respect of those who arewrongly suspected.
SOME OF THE SHORTCOMINGS FREQUENTLY OBSERVED IN
INVESTIGATION
(1.) Even cases where private parties are involved and thetestimony of records maintained by such private parties arenecessary for establishing the charge, the investigation is nothanded over to the CBI or the local police as required. This usuallyresults in half-baked cases and failure of the disciplinary proceedings instituted on the basis of such incomplete investigation.
(2.) Identification and seizure of the relevant documents at theinitial stage itself is not done. It is absolutely necessary. Apart fromthe likelihood of the documents being tampered with or evendestroyed by the involved officers, the failure to seize and to keep insafe custody all such documents at the investigation stage itselfresults in difficulty in their production during the DepartmentalInquiry and consequent delay in the finalization of the proceedings.Not only those documents necessary for sustaining the charge, butalso such related documents as are likely to be requisitioned by thedelinquent officer as additional documents during the DepartmentalInquiry, are required to be seized and kept in safe custody. Then, in
cases where the documents are deposited in court in connectionwith prosecution of some officers, and Departmental Proceedingsare to be instituted against certain others, it should be ensured thatcertified copies of such documents are retained before the originalsare deposited in the court. The Vigilance Officers should keep inconstant touch with the CBI or the local police, as the case may be,to ensure that this is done. There are cases delayed for more than five years simply for want of the documents which are in thecustody of courts.
(3.) Assistance of other Govt. Departments/Offices, wherevernecessary, to verify facts and to collect evidence, both oral anddocumentary, should be sought in the prescribed manner, withouthesitation.
(4.) Many a times, explanation of the officer concerned is notobtained. It should be done and the explanation given by himshould be verified. This will ensure that baseless charges, whichultimately fail for want of evidence, are not leveled.
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6. It goes without saying that if reports are sent only in proper format, complete in all respects, it not only helps in expeditiousexamination and disposal of the case, but it also helps in arriving at
the objective and judicious conclusions.
7. Report here does not denote the investigation report alone, butalso includes the documents accompanying it. Broadly the reportshould meet to the following requirements:
(i) History of the case: The history of the case, can be right fromits genesis, and should be comprehensive enough to get aview of the case in its totality. It must be made clear in thebeginning of the report itself as to how the case came to light.
(ii)
Listing of allegations: All the allegations should be clearlylisted out. Thereafter, mention should be made about theinvestigating agency.
(iii) Facts of the case: Full facts of the case in chronologicalsequence (clearly indicating significant dates) should bementioned.
(iv) This should include details of the documents/personsexamined, the procedure prescribed under the
instructions/rules vis-à-vis the procedure followed, the extentof violation/deviations, modus operandi adopted etc., lapseson the part of officers/officials should be clearly brought outindicating the violation of particular rule/procedure. This willhelp while drafting the charge sheet.
(v) Analysis of the defence statement obtained from the C.O.”s.should invariably be made and thereafter rebuttal if any bythe investigating agency can be mentioned.
(vi) Final recommendation: Last but not the least, finalrecommendation against the officers/officials involved shouldbe mentioned.
8. Following documents should normally accompany theinvestigation report:
i) Copies of complaints, if the case is originating in thecircle/unit.
ii) Copies of the documents relied.iii) Copies of the relevant instructions/rules.
iv)
Draft charge sheet.v) Defence statement of C.O.” s.
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vi) Bio-data of the officers involved. This should invariablecontain staff no. and date of birth. Further, it must be clearlystated whether the official/officer is officiating, regular or ad- hoc appointee.
Check points
(i) It must be examined at the beginning itself whether there isvigilance angle involved or not and must be stated clearly inthe report.
(ii) Before sending the case to TCHQ, VO should satisfy himselfabout the availability of documentary evidence listed in thedraft charge sheet.
(iii)
Wherever a G.O. is involved, composite case including NGOsis required to be sent to TCHQ for further reference to CVC.
(iv) Wherever CVC has advised for 2nd stage advice, even thecase of NGO should NOT be decided at the circle levelwithout reference to CVC for 2 nd stage advice.
DRAFTING OF CHARGE SHEET
9. Charge sheet is the first formal document which contains the Article ofCharge and/or Statement of imputations based on the prima facie irregularities
noticed against a Government servant which are communicated to him in the
form of specific allegations. The CCS (CCA) Rules, 1965 outline the form of
charge sheet to be issued in a particular case depending upon the nature of the
prima facie irregularity noticed against the delinquent employee and the
decision of the disciplinary authority whether it wishes to proceed for imposition
of a minor or major penalty. The forms outlined in the CCS (CCA) Rules, 1965
should be adhered to meticulously in all cases.
10. The main purpose of issuing a formal charge sheet to a Government servant
is to give him an opportunity to explain, defend, rebut and disprove theallegation leveled against him. Therefore, it is necessary to ensure that each
charge contained in Statement of Articles of Charge (Annexure-I) is expressed in
clear and precise terms without any ambiguity and without omitting the essential
ingredients. The period of incumbency of the post held by the charged officer at
the time of occurrence of the misconduct should necessarily be mentioned in the
Article of Charge. The charge levelled should not only be specific but also
intelligible so that the charged officer can answer it. The article of charge
should invariably mention all the ingredients of a particular misconduct like
time, place, person, stolen article, abusive language , inefficiency , negligence in
the performance of official duties, dishonesty or bad motive, abuse of official
position, malafide intention, acceptance of substandard work or goods, false
measurement of work executed, execution of work below specifications,
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acceptance of short supply of goods, amount of loss suffered by the Government,
breach of Conduct Rules etc., forming the essence of allegations which came to
the fore during the investigation. If the intention is to level the charge of splitting
up the purchase and exceeding financial powers then it should be so mentioned in
the Article of Charge. The charge which cannot be substantiated with the
support of oral/documentary evidence should never find a place in the chargesheet. Separate charge should be framed in respect of each allegation. There is
no limit to the number of Articles of Charge to be included in a single charge
sheet. The language of the charge sheet should be such as can be easily
understood by the charged officer keeping in view the provisions of Article-311
of the Constitution of India.
11. The statement of Imputations in support of the Articles of Charge (Annexure-
II) or in the case of minor penalty proceedings should be prepared in such a
manner as to narrate the logical sequence of events which took place indicating
the various facts like time, date, occurrence, place, documents, witnesses etc.,
establishing the misconduct/negligence/ fraud/disobedience/ indiscipline/breachof rules etc. There is no place for conjectures/ surmises/ indicative language or
expression of opinion in the statement of imputations. The Statement of
Imputations must contain the attending circumstances and all relevant
facts/particulars including admissions/confession of the delinquent employee, if
any. The procedure which should have been followed and how and to what
extent it has not been followed by the delinquent employee may be summarised
and the role played by him constituting his specific misconduct should be
highlighted indicating the violation of procedure, abuse of official position,
taking a decision with the malafide intention for extending any undue favour to
any party. If there is any loss attributable to the delinquent employee then such a
loss should be quantified in precise terms and the manner in which he has caused
the loss should be indicated. However, it has to be ensured that an allegation
which cannot be substantiated with any oral/documentary proof should not be
mentioned in the statement of imputations. There should be no contradiction of
facts in the Statement of Imputations. A separate Statement of Imputations is to
be incorporated in Annexure-II for each Article of Charge in case of major
penalty proceedings.
12. The documents to be mentioned in Annexure-III in support of
the Articles of Charge should be in the possession of the disciplinaryauthority. Any document which is not in the possession of thedisciplinary authority should not be listed in Annexure-III. As far as possible any specific rule or manual provision should be included inthe list of documents in order to prove the specific irregularitycommitted by the delinquent employee in violating the provisions ofthe rules. The report of Government Examiner of the QuestionedDocuments or of Quality Assurance Organisation must be includedas a document in the list of documents under Annexure-III. Astatement of the delinquent employee containing an admission orconfession of any allegation may be included in Annexure-III as a
listed document. But the earlier statement of the witnesses shouldnot be made a listed document. In case of charge of showing undue
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favour or causing loss to the Government thebills/vouchers/cheques etc., showing the details of payment mustbe included in the list of documents. The list of witnesses inAnnexure-IV must include a witness at S.No. 1 who can explain the functioning of the organization or the procedure which should have
been followed. In case an expert opinion of any hand writing expertor quality assurance expert etc., has been obtained then arepresentative of that organization should also be listed as awitness.
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Central Bureau of Investigation is a premier investigatingagency of India. It has built up its reputation over the years forthorough and impartial investigation. There is always a clamouramong the public, parliamentarians, eminent citizens for handingover the investigations of important and sensitive cases to CBI.Even the High Courts and Supreme Court have on a number ofoccasions directed that certain cases should be investigated by CBI.
2. CBI derives its legal power for investigation from the DelhiSpecial Police Establishment Act.. CBI was evolved out of a smallcell set up in the year 1941 for investigating the cases of bribery
and corruption in the transactions with which the War and SupplyDepartments of the Government of India were concerned. As theactivities of this cell increased it was converted into Delhi SpecialPolice Establishment and the Delhi Police Special PoliceEstablishment (DSPE) Act. of 1946 was passed conferring legalstatus and Police Power on this organization. In the year 1963, theGovernment of India created Central Bureau of Investigation by wayof a Resolution on the basis of recommendations of SanthanamCommittee. But the CBI continues to exercise its police powers onlyunder the DSPE Act.
3.
As the police is a State subject, the CBI cannot investigate cases in the
states unless the State Government gives it concurrence. The Central
Government notifies the offences to be investigated by the CBI U/s 3 of the DSPE
Act. Almost all the offences of IPC and offences under various Criminal Laws
have been notified under this section. When any particular case is transferred
from the state police to the CBI, the concerned state government has first to give
consent U/s 6 of the DSPE Act for extending powers and jurisdiction on the
members of the DSPE to the state in connection with that particular case. The
Central Government thereafter issues a notification U/S 5 of the Act and it is only
then that CBI can take up the investigation of such a transferred case. However,
the Ministries, Departments, Nationalised Banks and Public Undertakings of theCentral Government can directly refer the cases against their employees to the
CBI. In this regard, the instructions contained in Chapter-III Vol. I of the
Vigilance Manual have to be followed. The CBI also suo-motto take up
investigation of such case on the basis of intelligence collected and developed by
its own officers, As regards normal functioning of the CBI in the state, an
arrangement has been worked out whereby under general concurrence of the
concerned state government, the CBI may take up investigation of the following
types of cases:
(a) Cases which are substantially and essentially against Central
Government employees or concern affairs of the Central Government areinvestigated by the DSPE Division in spite of the fact that certain
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employees of the State Government may also be involved. The sate
agency are informed of such cases and they are required to render
necessary assistance to DSPE Division during investigation
(b) In addition to cases involving Central Government employees the DSPE
Division is authorised to investigate cases of the following categories also:-
(i) cases in which the interests of the Central Govt. or of any
statutory Corporation or Body set up and financed by Government
of India are involved particularly those in which public servants
are concerned or very large amounts are involved.
(ii) cases relating to the breaches of Central Law with the
enforcement of which the Government of India is mainly
concerned.
(iii) Big cases of fraud, cheating embezzlement and like relating to
public Joint Stock companies in which large funds are involved.
Similar other case when committed by organized gang or
professional criminals having ramifications in several states.
(iv) Cases having inter-state and International ramifications and
involving several official agencies where from all angles it is
considered necessary that a singly investigating agency should be
in-charge of the investigation.
4.
CBI now has two divisions for investigation of cases viz. (i) Anti
Corruption Division and (ii) Special Crime Division. Anti corruption Division
investigates cases relating to violation or prevention or corruption Act. But if
during the investigation of such cases, violation of some other Acts is also
detected, the Anti Corruption Division looks into it also. The Special Crimes
Division investigates cases of conventional crime viz. murders, dacoities, bank
robberies, kidnapping and abduction, gang-rapes, atrocities committed state
Police, offences under the Customs Act, Central Excise Act, Income-Tax Act,
Narcotics Drugs and Psychotropic substances Act, Import and Export control
Act, waging of war against the Government case against terrorists, cases which
are entrusted to it by the Government on Public demands or by the Supreme Courtand High Courts of their own accord. However, normally the investigation of
conventional crimes is not taken up suo-motto by the CBI in order to avoid
friction between the state police and the CBI.
5. There are special units for investigating cases/offences under narcotics
Drugs and Psychotropic substances Act, cases of Antiques, cases relating to
frauds in Banks and cases involving atrocities on women.
Thus it will be seen that CBI investigates almost every type ofcase. But for the purpose of optimum utilization of available
manpower an in order to effectively combat corruption and in theinterest of thorough and proper investigation, the CBI does not take
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(xvi) Cases relating to non-observance of the formalities for making purchase
when neither malafides nor corruption not any serious irregularities are
involved.
(xvii)
Case relating to negligence due to which the loss caused to government isless than Rs 10, 000/-
(xviii) Cases relating to acceptances of below specification work when the loss
cause is small and no malafides are involved.
(xix) Cases relating to government departments regarding allegations relating
to frauds, misappropriation etc. the amount of which is below Rs
10,000/-
(xx) (a) Cases of Public undertakings(other than Nationalised Banks) relating
to fraud, misappropriation etc. below Rs 50, 000/- .
(b) Cases of Nationalised Banks relating to frauds , misappropriation
etc. below Rs. 1,00,000/-
Note: cases not excluded by (xx)(b) will be taken up only.
(i) if they involved bank employees or bank employees in collusion
with private persons;
(ii) on the basis of specific complaints from the banks.
(c) cases of Nationalised Banks relating to frauds etc. committed by outsiders
(private persons) unless they involve (i) important firms/persons; (ii) amount
of Rs 10 lacs or more; (iii) international and/ or interstate ramification or (iv)
frauds against several banks.
(xxi) Alteration of date of birth in service records where it can be established
that the suspect had deliberately furnished false date of birth or altered
the date of birth for deriving some specific advantage like eligibility etc.
(xxii)
Allegations which have been the subject matter of audit objections unlessthere is reliable information to indicate corruption or malafide.
(xxiii) False declaration of caste, at the time of appointment.
(xxiv) False claims relating to Children Education Allowance.
INVESTIGATION TECHNIQUES EMPLOYED –PE AND RC
When a complaint or information is received verbally and if it contains
some substance, the concerned officer reduces it into writing, Thereafter he
carefully scrutinizes the same with a view to ascertaining whether the allegationscontained therein are serious enough and worth taking up for investigation. If
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the allegations are wild, ambiguous and not verifiable, no further action is
taken on the complaint, otherwise it is decided whether preliminary checks have
to be done before action is taken up. After carrying out such preliminary checks,
if it is found that case has to be registered for open investigation then it has again
to be decided whether a clear case has been made out against particular
individuals and whether any particular offence is made out or some further preliminary enquiries by way of collection of documents etc. are to be carried
out. If so a Preliminary Enquiry (PE) is registered and enquiry conducted
quickly. Once it is definitely and clearly established that the allegations do
disclose the commission of a cognizable office, an FIR will is drawn and a
Regular Case(RC) is registered U/s 154 of Cr.P.C and investigation is taken up.
The techniques of investigation of PE and RC are more or less the same
except that the PE is done only for conclusively arriving at the offences made out
from the complaint. Therefore, normally there is no occasion to carry out
searches etc. during Preliminary Enquiry. However, the witnesses can be
examined during PE and their statements can also be recorded. Documents etc.are collected during the course of PE but searches cannot be carried out U/s 165
of Cr.P.C without warrant in PE.
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It is a temporary deprivation of office. The contract of serviceis not terminated. However, the Govt. servant placed undersuspension is not allowed to discharge the functions of his officeduring the period of his suspension. It is not a penalty under theCCS(CCA) Rules, 1965. It is only an intermediate step. An appeallies against the order of suspension and the employee is entitled toreceive subsistence allowance.
2. Who can suspend ? [Rule 10(1) ]
The following authorities are empowered to place a Govt. servant under
suspension :
(i) Appointing authority or any authority to which the Appointing authority is
subordinate.
(ii) Disciplinary Authority.
(iii)
Any other authority empowered in this behalf by the President of India bygeneral or special order.
Whenever an Authority lower than the appointing Authority places a Gov. Servant under suspension, the circumstancesleading to suspension must be communicated to the AppointingAuthority forthwith.
When can a government servant be placed under suspension? [Rule 10(1) ]
A government servant may be placed under suspension:
(i) where a disciplinary proceeding is contemplated or is pending; or
(ii) where in the opinion of the competent authority, he hasengaged himself in activities prejudicial to the interest of thesecurity of the State; or
(iii) where a case against him in respect of any criminal offence is
under investigation, inquiry or trial; or
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(iv) whenever a government servant is involved in a dowry deathcase and a case has been registered by the Police against himunder Sec. 304 B of IPC, he shall be placed undersuspension irrespective of the duration of the custody in theevent of his arrest otherwise he will be place under
suspension immediately on submission of the report by thePolice to the magistrate.
Deemed suspension (Rule 10 (2)
A person is deemed to have been placed under suspension bythe appointing authority in the following cases:
(i) from the date of detention, if he is detained in custody for a period exceeding 48 hours.
(ii)
from the date of conviction, if he has been convicted for anoffence leading to imprisonment for a period exceeding 48hours, if he is not forthwith dismissed or removed orcompulsorily retired consequent to such conviction. (48 hourswill be computed from the commencement of the imprisonmentand for this purpose intermittent periods of imprisonment, ifany, shall be taken into account)
(iii) Rule 10(3) - When a government servant already undersuspension is dismissed, removed or compulsorily retired but
such punishment is set aside on appeal or review and furtherenquiry or action is ordered, the order of suspension will bedeemed to continue in force from the date of the original orderof punishment. Such order shall remain in force until furtherorders.
(iv) Rule 10(4) - If a government servant is dismissed or removedor compulsorily retired from service, but the penalty is setaside or declared or rendered void by a Court of Law and thedisciplinary authority on consideration of the circumstances ofthe case decides to hold a further enquiry against him on theallegations on which the penalty of dismissal, removal orcompulsory retirement was originally imposed, the Govt.servant shall be deemed to have been placed undersuspension by the Appointing Authority from the date oforiginal order of dismissal, removal or compulsory retirementand shall remain under suspension until further orders.Further enquiry is to be held only if the Court has passed theorder purely on technical grounds without going into themerits of the case.
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There are two conditions which must be satisfied in order toattract the operation of Sub-rule (4) of Rule 10 of CCS(CCA) Rules,1965.
Firstly, the order of dismissal, removal or compulsory
retirement must be set aside in consequence of a decision of aCourt of Law. Secondly, the disciplinary authority must decide tohold a fresh enquiry on the allegations on which the order ofdismissal, etc. was originally passed.
Revocation of suspension (Rule 10 (5))
(1) An order of suspension made or deemed to have been madeunless revoked or modified by the competent authority willremain in force. It can be revoked or modified by the
authority who made it or an authority to which the authoritymaking the order is subordinate. If a government servant hasalready been placed under suspension or is deemed to havebeen placed under suspension and any other disciplinary proceeding is commenced against him, the competentauthority may direct that the Govt. servant shall continue tobe under suspension until the termination of all or any of such proceedings. In such a case, reasons are to be recorded inwriting.
2. An order of suspension should be made with considerable
amount of care and thought. The number of suspendedofficials is to be kept at the minimum. Hence, before placinga Government servant under suspension, it should be foundout whether the purpose could be achieved by transferringhim to an another place or asking him to go on leave, etc.
Suspension may be desirable in the following circumstances :
(i) any offence or conduct involving moral turpitude.
(ii) Corruption, embezzlement or misappropriation of governmentmoney, possession of disproportionate assets, misuse ofofficial power or machinery of government.
(iii) Serious negligence and dereliction of duty resulting inconsiderable loss to government.
(iv) Apprehension of the Government servant tampering withwitnesses or documents.
(v) Being involved in a public scandal.
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(vi) On the conclusion of the disciplinary proceedings, if a minor penalty is imposed, suspension is regarded as unjustifiedand full pay and allowances and other consequential benefitsare given to him and the period of suspension is treated asduty.
Entitlements during suspension :
A government servant placed under suspension or deemedsuspension is entitled to draw subsistence allowance at an amountequal to leave salary half pay of half average pay plus dearnessallowance as admissible on such amount and CCA and HRA asadmissible to him before suspension for first 3 months. If the periodof suspension exceeds 3 months, the amount of subsistence
allowance may be increased or decreased upto a maximum of 50%of the amount being drawn by him during the first three months,depending on whether the reasons for continued suspension areattributable directly or indirectly to the government servant.
Where the government servant who was under suspension is fully exonerated in a disciplinary proceeding or acquitted by theCourt in a Criminal trial, the period of suspension is treated aswholly unjustified. The period is treated as duty for all purposesand he is paid full pay and allowances for the period of suspensionless the subsistence allowance already drawn by him.
Where a major penalty is imposed on the Governmentservant, the authority after giving a show cause notice to the Govt.servant and allowing him a maximum tiz as ordered by thecompetent authority. The Government servant shall not be entitledto full pay and allowances for the period. He can be paid anyamount not less than the amount already drawn by him assubsistence allowance.
The period of suspension may also be treated as leave dueand admissible at the request of the government servant. In such acase if the leave salary admissible works out to be less then theamount already paid as subsistence allowance than the excessamount shall have to be recovered.
Administrative effects of suspension .
(i) Grant of advance for purchase of conveyance shall notbe granted to a Govt. servant under suspension. (Rule200 GFRs)
(ii)
Grant of House building Advance is admissible.
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(iii) A suspended Govt. Servant can function as a Defenceassistant subject to the fulfillment of other condition
(iv) Entry card should be withdrawn, if issued for entry inthe office.
(v) If death occurs during suspension, the period ofsuspension will be treated as duty and family will get full pay and allowances for the period less subsistenceallowance already drawn.
(vi) Leave : FR 55 provides that leave may not be grantedto a Government servant under suspension.
(vii) LTC : Since no leave can be granted to a Governmentservant under suspension, he cannot avail of LTC for
himself. There is, however, no bar to the members ofhis family availing of LTC.
(viii) Lien: a Government servant under suspension retainshis lien during suspension period.
(ix) A suspended government servant should not be askedto mark attendance.
Headquarters of a Government servant under suspension :
The Headquarter of a Government servant under suspensionshould normally be assumed to be his last place of duty. However,where an individual under suspension requests for a change ofheadquarters, the Competent authority may change theheadquarter if it is satisfied that such a course of action will not putthe government to any expenditure like grant of T.A etc. or othercomplications.
When a government servant under suspension submitsresignation, the competent authority will consider whether it wouldbe in public interest to accept where allegations do not involve moral
turpitude or where evidence is not sufficient to prove the chargesleading to removal/dismissal or where proceedings are likely to be protracted and it would be cheaper to the exchequer to accept theresignation. In the case of Group C&D employees prior approval ofHead of the Department will be necessary. Approval of Ministerwould be needed in the case of Group A & B employees. Wheredepartmental action has been initiated on the advice of CVC in thecase of Group A&B Gazetted officers, their concurrence should beobtained before submitting the file to Minister for approval.
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On attaining the age of superannuation, a Governmentservant will be retired even if he is placed under suspension. Hewill not get subsistence allowance but will draw provisional pension
under Rule 69 of CCS (Pension) Rule, 1972.
As per the instructions contained in Department of Personnel& Training O.M. No.11012/4/2003-Estrt.(A) dated 07.01.2004 thecases of suspension or deemed suspension shall have to bereviewed by the authority competent to modify or revoke thesuspension, on the recommendation of the Review Committeeconstituted for the purpose, and pass orders either extending orrevoking the suspension. Subsequent reviews shall also have to bemade before expiry of the extended period of suspension and in anycase the extension shall not be for a period exceeding 180 days at a
time. Rule 10 of CCS(CCA) Rules, 1965 has also been amended byincorporating sub-rule (6) & (7) to this effect.
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PROCEDURE FOR IMPOSING MAJOR PENALTIES(Rules 14 of the CCS (CCA) Rules, 1965)
Rule 14
1. No order imposing any of the penalties specified in clause (V)to (IX) of rule 11 shall be made except after an inquiry held, as faras may be, in the manner provided in this rule and rule 15, or in themanner provided by the Public Servants (Inquiries) Act, 1850(37 of1850), where such inquiry is held under that Act.
2. Whenever the disciplinary authority is of the opinion thatthere are grounds for inquiring into the truth of any imputation of
misconduct or misbehavior against a Government servant, it mayitself inquire into, or appoint under this rule or under the provisionsof the Public Servants (Inquiries) Act, 1850, as the case may be, anauthority to inquire into the truth thereof.
Explanation: Where the disciplinary authority itself holds theinquiry, any reference in sub-rule (7) to sub rule (20) and in sub-rule(22) to the inquiring authority shall be construed as a reference tothe disciplinary authority
3. Where it is proposed to hold an inquiry against a Governmentservant under this rule and rule 15, the disciplinary authority shalldraw up or cause to be drawn up-
(i) the substance of the imputations of misconduct ormisbehavior into definite and distinct articles ofcharges;
(ii) a statement of the imputations of misconduct ormisbehavior in support of each article of charge, whichshall contain-
(a) a statement of all relevant facts including anyadmission or confession made by theGovernment servant;
(b) a list of documents by which, and a list ofwitnesses by whom, the articles of charge are proposed to be sustained.
4. The disciplinary authority shall deliver or cause to bedelivered to the Government servant a copy of the articles of charge,
the Statement of imputations of misconduct or misbehavior and alist of documents and witnesses by which each article of charges is
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proposed to be sustained and shall require the Government servantto submit, within such time as may be specified, a writtenstatement of his defence and to state whether he desires to beheard in person.
5.(a) On receipt of the written statement of defence, thedisciplinary authority may itself inquire into such of the articles ofcharge as are not admitted, or, if it considers it necessary to do so,appoint, under sub-rule(2), an inquiring authority for the purpose,and where all the articles of charge have been admitted by theGovernment servant in his written statement of defence, thedisciplinary authority shall record its findings on each charge aftertaking such evidence as it may think fit and shall act in the mannerlaid down in Rule 15.
(b)
If no written statement of defence is submitted by theGovernment servant, the disciplinary authority may itself inquireinto the articles of charge or may, if it considers it necessary to doso, appoint, under sub-rule(2) an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any articleof charge or appoints an inquiring authority for holding an inquiryinto such charge, it may, by an order, appoint a Governmentservant or a legal practitioner, to be known as the “Presentingofficer” to present on its behalf the case in support of the articles of
charge.
52. The disciplinary authority shall, where it is not the inquiringauthority, forward to the inquiring authority :
(i) a copy of the articles of charge and the statement of theimputations of misconduct or misbehavior;
(ii) a copy of the written statement of defence, if any,submitted by the Government servant;
(iii)
a copy of the statements of witnesses, if any, referredto in sub-rule (3);
(iv) evidence proving the delivery of the documents referredto in sub-rule (3) of the Government servant; and
(v) a copy of the order appointing the “Presenting Officer”
53. The Government servant shall appear in person before theinquiring authority on such day and at such time within ten working
days from the date of receipt of the articles of charge and thestatement of the imputations of misconduct or misbehavior, as the
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inquiring authority may, by a notice in writing, specify in thisbehalf, or within such further time, not exceeding ten days, as theinquiring authority may allow.
8 (a) The Government servant may take the assistance of any other
Government servant posted in any office either at his headquartersor at the place where the inquiry is held, to present the case on hisbehalf, but may not engage a legal practitioner for the purpose,unless the Presenting Officer appointed by the disciplinaryauthority, is a legal practitioner or, the disciplinary authority, havingregard to the circumstances of the case, so permits;
Provided that the Government servant may take theassistance of any other Government servant posted at any otherstation, if the inquiring authority having regard to the
circumstances of the case, and for reasons to be recorded inwriting, so permits.”
Note: The Government servant shall not take the assistanceof any other Government servant who has three pending disciplinary cases on hand in which he has togive assistance.
(b) The Government servant may also take the assistance of aretired Government servant to present the case on his behalf,subject to such conditions as may be specified by the President from
time to time by general or special order in this behalf.
9. If the Government servant who has not admitted any of thearticles of charge in his written statement of defence or has notsubmitted any written statement of defence, appears before theinquiring authority, such authority shall ask him whether he isguilty or has any defence to make and if he pleads guilty to any ofthe articles of charge, the inquiring authority shall record the plea,sign the record and obtain the signature of the Government servantthereon.
10.
The inquiry authority shall return a finding of guilt in respectof those articles of charge to which the Government servant pleadsguilty.
11. The inquiry authority shall, if the Government servant fails toappear within the specified time or refuses or omits to plead,require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the caseto a later date not exceeding thirty days, after recording an orderthat the Government servant may, for the purpose of preparing his
defence :
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(i) inspect within five days of the order or within such further time not exceeding five days as the inquiringauthority may allow, the documents specified in thelist referred to in sub-rule (3);
(ii)
submit a list of witness to be examined on his behalf;
Note : If the Government servant applies orally or inwriting for the supply of copies of the statements ofwitness mentioned in the list referred to in sub-rule (3),the inquiry authority shall furnish him with such copiesas early as possible and in any case not later thanthree days before the commencement of examination ofthe witness on behalf of the disciplinary authority.
(iii)
give a notice within ten days of the order or within such further time not exceeding ten days as the inquiringauthority may allow for the discovery or production ofany documents which are in the possession ofGovernment but not mentioned in the list referred to insub-rule(3)
12. The inquiring authority shall, on receipt of the notice ofdiscovery or production of documents, forward the same or copiesthereof to the authority in whose custody or possession thedocuments are kept, with a requisition for the production of
documents by such date as may be specified in such requisition :
Provided that the inquiring authority may, for reasons to berecorded by it in writing, refuse to requisition such of the documentsas are, in its opinion, not relevant to the case.
13. On receipt of the requisition referred to in sub-rule(12) everyauthority having the custody or possession of the requisitioneddocuments shall produce the same before the inquiring authority :
Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons tobe recorded by it in writing that the production of all or any of suchdocuments would be against the public interest or security of theState, it shall inform the inquiring authority accordingly and theinquiring authority shall, on being so informed, communicate theinformation to the Government servant and withdraw the requisitionmade by it for the production or discovery of such documents.
14. On the date fixed for the inquiry, the oral and documentaryevidence by which the articles of charge are proposed to be proved
shall be produced by or on behalf of the disciplinary authority. Thewitnesses shall be examined by or on behalf of the Presenting
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20. If the Government servant to whom a copy of the article ofcharge has been delivered, does not submit the written statementof defence on or before the date specified for the purpose or does notappear in person before the inquiring authority or otherwise fails or
refuses to comply with the provisions of this rule, the inquiringauthority may hold the inquiry ex-parte.
21. (a) Where a disciplinary authority competent to impose any ofthe penalties specified in clause(i) to (iv) of Rule 11(but notcompetent to impose any of the penalties specified in clauses (v) to(ix) of Rule 11), has itself inquired into or caused to be inquired intothe articles of any charge and that authority, having regard to itsown findings or having regard to its decision on any of the findingsof any inquiring authority, appointed by it, is of the opinion that the
penalties specified in clauses(v) to (ix) of rule 11 should be imposedon the Government servant, that authority shall forward the recordsof the inquiry to such disciplinary authority as is competent toimpose the last mentioned penalties.
(c) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is ofthe opinion that further examination of any of the witnesses isnecessary in the interests of justice, recall the witnesses andexamine, cross-examine and re-examine the witnesses and mayimpose on the Government servant such penalty as it may deem fit
in accordance with these rules.
22. Whenever any inquiry authority, after having heard andrecorded the whole or any part of the evidence in an inquiry ceasesto exercise jurisdiction therein, and is succeeded by anotherinquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on theevidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.
Provided that if the succeeding inquiry authority is of theopinion that further examination of any of the witnesseswhose evidence has already been recorded is necessary inthe interest of justice, it may recall, examine, cross-examineand re-examine any such witnesses as herein before provided.
23. (i) After conclusion of inquiry, a report shall be prepared and itshall contain-
(a)
the articles of charge and the statement of theimputation of misconduct and misbehavior;
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(b) the defence of the Government servant in respect ofeach article of charge;
(c) an assessment of the evidence in respect of each articleof charge;
(d) the findings on each article of charge and the reasontherefor.
Explanation: If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings insuch article of charge:
Provided that the finding on such article of charge shall not berecorded unless the Government servant has either admitted the
facts on which such article of charge is based or has had areasonable opportunity of defending himself against such articles ofcharge.
(ii) the inquiring authority, where it is not itself the disciplinaryauthority, shall forward to the disciplinary authority therecords of inquiry which shall include :-
(a) the report prepared by it under clause (i);
(b) the written statement of defence, if any, submitted by
the Government servant;
(c) the oral and documentary evidence produced in thecourse of inquiry;
(d) written briefs, if any, filed by the Presenting Officer orthe Government servant or both during the course of theinquiry; and
(e) the orders, if any, made by the disciplinary authorityand the inquiring authority in regard to the inquiry.
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Rule 14 of the CCS (CCA) Rules, 1965 provides forappointment of an Inquiry Officer for conducting inquiry against
delinquent Government servants. Conduct of this inquiry is ofquasi-judicial in nature. Very few people in Government service getsuch an opportunity to perform quasi-judicial functions. Though onthe face of it, it may appear to be a thankless job, alwaysremember that you have been bestowed upon a pious responsibilityin the process of imparting justice. Remember that the fate of thecharged employee rests to a large extent on the conclusions whichyou may arrive at after holding the inquiry. You will have to ensurethat in the process of conducting the inquiry any of the principles ofnatural justice are not violated.
Well then, here is a step-by-step guide for you on how toconduct the inquiry:-
On your appointment as IO
1. Ensure from the order that you have been properly appointed.
2. Check whether you have received the following documents fromthe Disciplinary Authority
• Articles of charge.
• Statement of imputations of misconduct or mis-behaviour
• List of witnesses by whom the articles of charges are proposed to be sustained
• List of documents by which the charges are to be proved
• Statements of witness if any recorded during theinvestigation
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3. If you have not received any of the above documents, ask forthese from the authority which has appointed you as I.O.
4. Go through the charge sheet and documents to understand thecase thoroughly.
5.
Immediately inform the authority which has appointed you.
• If you happen to be interested in any manner in the subjectmatter of the inquiry.
• If you have also been listed as one of the witnesses
• If you have at an earlier stage, expressed your opinion aboutthe merits of the case.
• If your are not sufficiently senior to the charged officer,and wait for further instructions.
6. Open a Daily Order sheet.
7. Fix a date, place and time for preliminary hearing.
8. Issue notice to the C.O.
• to present himself for preliminary hearing
•
to intimate the name and designation of his DefenceAssistant and his controlling authority.
• To obtain and bring a copy of the permission from thecompetent authority for the appointment of the DefenceAssistant, if he is a legal practitioner .
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• bring all the listed documents and statements if any of the
listed witness.
Preliminary Hearing
10. At the Preliminary hearing
• ask the C.O if he has understood the charges and if not,
explain these to him.
• Ask the C.O if he pleads guilty and whether he has anydefence to make.
11. If the C.O pleads guilty of any charges unconditionally ,record the fact and obtain this signatures thereon.
12. If the C.O refuses to plead, omits to plead or pleads notguilty to any of the charges, record an order that the C.O for the purpose of preparing the defence may
• inspect listed documents within a maximum period of 10days and if he desires take extracts or copies, if photocopies of the documents have not already beensupplied to him alongwith the charge-sheet.
• submit a list of witnesses, he wishes to examine on hisbehalf, indicating the issues the each witness will help inclarifying.
•
submit a list of additional documents he wishes to be produced during the inquiry, indicating the relevance ofeach documents to the presentation of his case within 10days. (This can be extended further by another 10 days)
13. Copies of the above order may be given to the CO and PO in person or may be delivered by Registered Post.
14. After the C.O has given you the list of additional documentsand witness, decide whether these are really relevant to the
defence of C.O. If after careful consideration, you think that any ofthese are wholly irrelevant, record clear reasons and refuse to
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requisition these documents/witness. Think judiciously beforetaking a decision. Consider the issue from the defence point ofview. Give benefit of doubt in favour of the C.O. Remember,there is no appeal against your orders. (The authority having possession or custody of the additional documents can refuse to
produce the documents in view of the public interest or security ofthe state)
15. After the C.O has inspected the documents including anyadditional documents and received extracts/copies, fix a date,time, place for regular hearing.
16. Send notices for regular hearing to C.O, P.O and thewitnesses .
17.
If a witness refuses to accept the notice or refuses to participate in the inquiry inform his controlling officer.
18. Do not insist on the C.O to produce his defence witnesses.
Regular Hearing
19. On the date of regular hearing
•
Ask the P.O. to present the listed documents.
• Take the documents which are admitted as genuine by theC.O, on record and mark them exhibits, as Ex. S-1, Ex- S2 and so on.
• If any documents are not admitted, ask the P.O. to produce witness to introduce these documents and thenmark them as above.
20.
Ask the P.O. to introduce the state witnesses one by one.
21. The witnesses may be numbered as SW-1, SW-2 and so on.
22. During examination – in - chief ask the witness to introducehimself and let the P.O examine him to bring out his knowledgeabout the charges or the circumstances relating to the charges.
23. Record the statement of the witness in narrative form.
24. Do not allow any leading questions to be asked during
examination-in-chief by the P.O. Leading questions are those which
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are suggestive of expected answers and which can be answered inyes and no.
25. After the examination in chief is over, ask the C.O or hisDefence Assistant to cross-examine the witness.
26. Leading questions can be allowed during cross-examination.
27. You can put questions, if necessary, to the witness to bringout the truth.
28. Do not allow any questions to be asked if these appear to beintended to insult or annoy or are otherwise offensive in form.
29. After the cross-examination is over, allow the P.O. to re-
examine the witness with a view to clarify any doubts that mighthave arisen during the cross-examination.
30. Do not allow re-examination on any new fact , not broughtout during examination-in-chief. If you consider it necessary in theinterest of justice to allow any new facts during re-examination, youhave to allow cross-examination of the witness, on the new facts.
31. Read over the testimony to the witness and take thesignature of the witness , P.O, CO and DA thereon and affix yoursignature also. If any of these refuse to sign, record this fact and
your observation thereon.
32. Use separate sheets for the testimony of each witness.
33. After the closure of the case for the disciplinary authority askthe C.O to state his defence.
34. If CO submits his defence orally , it will be recorded and gotsigned from him. Give a copy of the statement to the PO.
35. Ask the CO if he would like to be his own witness. In case he prefers to do so, he will be examined like any other witness.
36. Take the Defence documents produced/requisitioned by theCO on record, marking them as Exhibits D-1, D-2, and so on.
37. The defence witnesses may be marked as DW-1, DW-2 andso on and examined like state witnesses
38. Defence witness will first be examined by CO or his DA inexamination in chief.
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39. Thereafter the PO will cross-examine the Defence Witnesses.Thereafter, the CO or DA would re-examine his witness, ifnecessary, to clarify any points or doubts that may have arisenduring cross-examination.
40.
After the CO has concluded his case and if he had notexamined himself as a witness generally question him on thecircumstances appearing against him in the evidence, to enable himto explain the position.
41. After the evidence has been recorded as above, ask the PO toargue his case. Thereafter, ask the CO to present his case.
42. You can permit the PO and CO to submit their written briefswithin prescribed time limits. PO has to give his brief first, with a
copy to the CO. Thereafter, CO will give his written brief.
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APPOINTMENT, ROLE AND FUNCTIONS OF PRESENTINGOFFICER.
Rule 14(5) (c) of the CCS(CCA) Rules, 1965 provides for theappointment of a Presenting Officer to present the case ofdisciplinary authority before the Inquiry Officer. It lays down thatwhere a disciplinary authority itself inquires into any article ofcharge or appoints an inquiring authority for holding an inquiry intosuch charge, it may, by an order, appoint a Government servant ora legal practitioner, as the Presenting officer, to present on itsbehalf the case in support of the articles of charge. From the above provisions it is clear that disciplinary authority alone is competent toappoint the Presenting Officer and that too where it is decided to
hold an inquiry into the articles of charge leveled against aGovernment servant.
WHO MAY BE APPOINTED AS A PRESENTING OFFICER ?
2. The disciplinary authority can appoint a Presenting Officer from two categories of persons. These are
(i) a Government servant, and
(iii) a legal practitioner.
This means a retired Government servant can not beappointed as a Presenting Officer unless he happens to be a legal practitioner. If a government servant who is functioning asPresenting Officer retires before the proceedings are completed, anew Presenting officer will have to be appointed as a retiredGovernment servant cannot function as Presenting officer. This alsoshows that a non-government servant other than a legal practitionercannot be appointed as the Presenting Officer. Generally thedisciplinary authority appoints a Government servant from withinthe Department or from the same wing of the Department to which
the charged Government servant belongs. This is beneficial becausethe Presenting Officer in such a case would be fully conversant withthe rules, regulations and procedures of working of the office of theCharged Officer and hence would be in a better position to presentthe case before the Inquiry Officer. Where the disciplinary proceedings have been initiated on the basis of investigationscarried out by the Central Bureau of Investigations(CBI), a nomineeof the CBI is appointed as the Presenting Officer because of his familiarity with investigation techniques and methods ofPresentation of evidence.
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INVESTIGATING OFFICER NOT TO BE APPOINTEDPRESENTING OFFICER
3. The Investigating Officer should not be appointed asPresenting Officer as it would amount to loosing an important
prosecution witness. Punjab High Court has opined that the two functions of investigation and presentation should not be assignedto one person. This recommendation of the Court has been acceptedby the Govt. of India. It is for this reason that in cases investigatedby CBI., the investigating inspector is not nominated as thePresenting Officer.
PROSECUTION WITNESS NOT TO BE APPOINTEDPRESENTING OFFICER
4. Presenting Officer should not be a person who is to be called
as a witness from the side of the disciplinary authority. The functions of the witness and Presenting Officer should not becombined in one person. There is, however, no bar to the PresentingOfficer being called as a Defence witness. In the event of PresentingOfficer being called as a Defence Witness, another PresentingOfficer should be nominated to cross examine him. Thereafter, theoriginal Presenting Officer can continue with the case.
DOCUMENTS TO BE SENT TO THE PRESENTING OFFICER BYTHE DISCIPLINARY AUTHORITY
5.
The disciplinary authority has to send the followingdocuments to the Present Officer appointed by it :
(i) copy of the charge sheet;
(ii) written statement of defence, if any, submitted by thecharged officer;
(iii) a clear statement that the Charged Government servant hasnot submitted a written statement of defence within thespecified time;
(iv) listed documents(in original) by which the articles of chargeare to be proved;
(v) earlier recorded statements of listed witness, if any;
(vi) proof of receipt of documents by the Charged GovernmentServant; and
(vii) Orders appointing the Inquiry Officer and the PresentingOfficer.
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6. The function of the Presenting Officer is to show why chargeshould be deemed to be established on the basis of preponderanceof probability, by leading oral and documentary evidence(direct or
circumstantial) and by drawing logical inference therefrom. Toachieve the above objective, the Presenting Officer should collect from the investigating Officer all the statements of witnesses takenduring investigation whether or not they have been listed aswitnesses in Annexure IV of the charge sheet. He should alsocollect all the documents seized during investigation.
7. The Presenting officer is, so to say, the advocate of thedisciplinary authority for presenting his case before the Inquiringauthority. As such he must
•
study all the documents and statements of witnesses(whetherlisted or not) to plan out his own strategy to present his casebefore the Inquiry Officer.
• anticipate the possible lines of defence that the Charged Officercan take and devise ways and means of effectively meetingthem.
• reconstruct in his mind each step of the event or the transactioninvolved. For each such step, he should see which of the oral ordocumentary evidence is relevant, necessary and adequate to present his case. While doing so, he should examine the part played by the Charged Officer and what he was actuallyexpected to do.
• Acquire the knowledge of rules and regulations and the working practices of the office where the Charged Officer was workingwhen the misconduct occurred.
• not hesitate to consult the investigating officer to find outwhether additional evidence would be necessary.
• co-relate each item of oral or documentary evidence to see whatit is likely to prove or disprove.
All this, the Presenting Officer should do before the PreliminaryHearing, to be able to assist the Inquiry Officer at the PreliminaryHearing.
ROLE OF PRESENTING OFFICER DURING PRELIMINARYHEARING
8.
At the Preliminary Hearing, it is the duty of the PresentingOfficer-
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“Whether he (the Inquiry Officer) can decide the case either waywithout taking into consideration the new evidence?”
If the answer is ‘YES’ the new evidence proposed to be producedwould be in the nature of filling up a gap. However, if the Inquiry
Officer finds that he would not be able to decide the case withouttaking into consideration the new evidence, in that event, this willbe in the nature of removing an inherent lacuna.
…………….
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Having recorded the evidence, the Inquiring Authority isrequired to sift and evaluate the evidence before him and satisfythat the reasonable conclusion that in the context of the criterion of preponderance of probability, the suspected Public Servant isguilty of the misconduct alleged against him.
GENRAL PRINCIPES OF EVALUATING EVIDENCE
3. The evidence adduced during the inquiry is of two typesnamely oral and documentary. Oral evidence includes all
statements which the Inquiring Authority permits to be made it bywitnesses, in relation to matters of fact under inquiry. Thedocumentary evidence includes all documents produced forinspection and admitted in the Inquiry. Before the InquiringAuthority embarks upon the assessment of the evidence, it isessential for him to understand certain general principles which hewould be required to apply to this task.
(i) The first principle is that the standard of proof in a departmentalinquiry is preponderance of probability and not proof beyond
reasonable doubt required in Criminal trials. This principles hasbeen enunciated by the Supreme Court in the following words :
“A disciplinary proceedings is not a Criminal case and thestandard of proof is that preponderance of probability and not proofbeyond reasonable doubt”
(ii) The second principle is that the burden of proof rests on thedisciplinary authority, i.e. it would be the responsibility of thePresenting Officer to establish the charge, first and then only theDefendant would be required to controvert the same. It is not for the
SPS to prove his innocence or absolve himself from the charges.While evaluating evidence, it is the duty of the Inquiry Officer to seethat the charges have been established by the Presenting Officer onbehalf of the Disciplinary authority first by adducing evidencebefore him during the course of Inquiry. If the P.O fails to bringhome the charges, no duty is cast on the SPS to prove hisinnocence.
(iii) A further requirement is that the conclusion must be rested onthe evidence and not on matters outside that record. And, when itis said that the conclusion must be rested on the evidence, it goes
without saying that it must not be based on a misreading ofevidence.
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These requirements are basic and cannot be whittled down in adepartmental inquiry. Similarly, mere suspicion cannot take the place of evidence or proof. Suspicion, however, strong, has noevidentiary value whatsoever. Conjectures or surmises cannot take
the place of proof or evidence.
(iv) While drawing inferences and conclusion, the Inquiry Officeris required to assess the evidence which has been produced beforehim during the inquiry. He is not permitted to refer to the materialswhich have not been produced during the inquiry and for which theGovernment servant had no opportunity to examine and torebut/explain the same. It has also been held that Inquiry Officercannot be a witness against the suspected public servant and theInquiry Officer must in particular, avoid, giving any weight,
however minute, to personal knowledge of any matter against theSPS.
It will thus be seen that the Inquiry Officer cannot rely on his personal knowledge of facts, and only the evidence producedduring the inquiry is to be considered and the Inquiry Officershould not refer to the materials which have not been producedduring the inquiry and for which the Government servant did nothave the opportunity to examine, refute or explain the same.Moreover, no conclusion should be arrived at arbitrarily, withoutevidence or on misreading of evidence.
3. All these principles are to be applied by the Inquiry Officer toreport to the disciplinary authority whether in the context of theevidence adduced before him, the Articles or charge have been proved, disproved or not proved. It is, therefore essential to explainthese terms. The Indian Evidence Act defines them as :-
PROVED : A fact is said to be proved when, afterconsidering the matters before it, the Court either believes it toexist, or considers its existence so probable that a prudent manought under the circumstances of the particular case to act upon thesupposition that it exists.
DISPROVED : A fact is said to be disproved when, afterconsidering the matters before it, the Court either believes that itdoes not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case,to act upon the supposition that it does not exist.
NOT PROVED : A fact is said to be not proved when it is neither proved nor disproved.
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4.1 In order that the articles of charge may be held as proved or otherwise there is always material evidence which maybe oral or documentary, the production or non-production of which in
the inquiry is of crucial importance. If material evidence is not produced, during the inquiry, the articles or charge cannot be heldas proved.
4.2 Material Evidence differs from case to case and it is not possible to give an exhaustive list. However, the following fewexamples may explain the importance of material evidence :
(i) Where the allegation is that the employee was found to besleeping during duty hours, the persons who actually saw him
sleeping and reported the matter, is material evidence.
(ii) An eye witness to an incident is always a materialwitness, but a person reaching the place of occurrence after theevent is not a material witness. The reason is that the latter gathershis information from other persons and hence his evidence is merelyhere say evidence.
(iii) In the case of insubordination, the officer with whom theemployees misbehaved is a material witness.
4.3
In the evaluation of evidence, the Inquiry Officer shouldgive more weightage to the material evidence adduced during theenquiry. The material witness or documents where the allegationsare based on documents, reveal the story. Hence scanning ofmaterial evidence with care will help in the correct appreciation ofthe circumstances of the case.
5. HEARSAY EVIDENCE
The Supreme Court has held that hearsay evidence isadmissible in departmental inquiries. It has observed that there isno allergy to hearsay evidence provided it has reasonable nexusand credibility, but departmental authorities and administrationtribunals should not swallow what is strictly speaking not relevantunder the Indian Evidence Act.
6. STATUS OF THE WITNESS
While evaluating evidence of the various witnesses producedon behalf of the disciplinary authority and the charged officer, thegolden rule is that “ ALL WITNESSES ARE EQUAL’ irrespective of
their rank or status in the Government. A higher value cannot beattached to a piece of evidence for the only reason that the witness
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holds a status higher than the one deposing to the contrary.However, the evidence of an independent witness is to be givenhigher weightage than an interested witness.
7. VALUE OF EVIDENCE WHICH CANNOT BE SUBJECTEDTO CROSS EXAMINATION
The right of cross examination is a valuable right given to thecharged officer in departmental inquiries and denial of the samevitiates the inquiry. Hence, any evidence which cannot be subjectedto cross examination should not be accepted. For examplestatements of witnesses recorded during preliminary investigationwho are not produced during the inquiry are not to be relied upon.Similar is the fate of the affidavits. The person swearing to the
affidavit may be called for cross examination and the value to beattached to an affidavit should be decided in each case on merit ofthe cross examination.
8. VALUE OF TAPE RECORDED EVIDENCE
The tape recorded evidence can be relied upon during adepartmental inquiry. In one case the Supreme Court has ruled thatthe mere fact that there is a possibility of certain kind of evidence tobe tampered with does not preclude it from being considered sincealmost all kinds of evidence can be tampered with. The court,
however, ruled that while considering such evidence, it should beevaluated in the context of the total circumstances of the case.
9. VALUE OF THE EVIDENCE OF THE INVESTIGATINGOFFICER
Whereas it is a fact that the evidence of the investigatingOfficer is important as it helps in unfolding of the story, but sincehe cannot be a material witness or an eyewitness of the incident,his evidence alone cannot be the basis of holding of the articles ofcharge as proved.
10. ASSESING THE VALUE OF ORAL EVIDENCE PRODUCEDON BEHALF OF DISCIPLINARY AUTHORITY AND SUSPECTEDPUBLIC SERVANT
It is common knowledge that both parties in a departmental proceedings come up with different versions which are at timesdiametrically opposed, of the incident or happening. Whileassessing the value of their respective evidence, the Inquiry Officershould give more weight, to the one which is probable, coherent
and consistent. The evidence which is apparently improbable and full of discrepancies should be totally discarded.
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The evaluation of documentary evidence is easier than theevaluation of oral evidence. Since the departmental inquiries are
basically fact-finding inquiries, the value of documentary evidencein such inquiries is slightly higher than the value of oral evidence forthe simple reason that such evidence by its very nature is moreexact and precise. Further such evidence is more reliable. This isnot meant, in any way, to depreciate the value of oral evidence.Where the oral evidence is direct, unequivocal and emphatic, it hasthe same value as accorded to the documentary evidence.
12. EFFECT OF NON-PRODUCTION OF MATERIALDOCUMENTS
The function of Inquiring Authority is to find out the truth in acase and the Presenting Officer and the Assisting Officers are thereto assist him in every way to achieve his object. Hence, if somedocument material to the fact of the case is in the possession of one party, it would be its duty to produce it before the Inquiry Officer.Failure to do so would raise a presumption adverse to the party possessing it.
13. EVIDENTIARY VALUE OF FIR/ORIGINAL COMPLAINT
The original complaint/F.I.R is important document since itthrows light on the circumstances of the case. It, however does notby itself, constitute a substantive evidence. The evidentiary valueof a complaint/F.I.R would depend on whether the complainant, the person who lodged the F.I.R is examined during the enquiry andsubjected to cross-examination by the accused. The non- examination of the complainant would not make the complainttotally inadmissible in departmental enquiries. In a case wheredisciplinary proceedings were initiated on receipt of a complaint byan authority and the complainant was not examined, the complaintwould be admitted on the testimony of the authority who received it.In such case, the evidentiary value of the complaint is not muchunless it is corroborated in material details by other evidence oral,documentary or circumstantial. But, where the complaint itself is ofa hearsay character, it has no evidentiary value.
14. DOCUMENTARY EVIDENCE IN SUPPORT OF HANDWRITTING
OF ACCUSED
In the case of the documentary evidence where thehandwriting of the suspected person is in doubt, it is always better
to obtain the advice of the experts rather than to believe thetestimony of the ordinary person who have received no training to
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compare handwritings. If the experts appears before the InquiryOfficer, he must state reasons for his opinion expressed during the proceedings. The Inquiry Officer should evaluate the opinion of theexpert on the basis of overall picture emerging from the depositionand cross examination like any other witness. But, where the
opinion of the expert contained in the report or certificate and thedocument has not been challenged, then the evidentiary value of thereport will depend on the grounds mentioned for holding the opinion.Opinion expressed is not to be accepted mechanically. It is the dutyof the Inquiry Officer to apply his mind to such opinion in the contextof the circumstances of the case and reach independent conclusions.
15. CIRCUMSTANTIAL EVIDENCE
Circumstantial evidence is the evidence which does not provethe existence or non-existence of the principal fact by direct evidencebut which establishes by direct evidence a circumstance or a chainof circumstances by which he existence or otherwise of the principal fact may be inferred.
In criminal proceedings, the accused can be held guiltyon circumstantial evidence provided the followingconditions are satisfied:
(i) the Primary facts or circumstances from which inference of guilt
is drawn are duly proved by direct, oral or documentary evidence.
(ii) there is no missing link in the circumstantial evidence and the
inferential links are accurately based on legal presumptions, and
(iii) the chain of the circumstances must exclude a hypothesis of
innocence to a reasonable mind.
But in the departmental proceedings, the rigors of the procedure of criminal are
not applicable as the standard of proof demanded in departmental enquiries is
that of pre-ponderance of probability. The inquiry Officer should ensure that the
principles laid down in (i) and (ii) above are complied with. As regards (iii)
above, the Inquiry Officer should see that the criterion of preponderance of probability is satisfied before coming to a conclusion on the basis of
circumstantial evidence.
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An oral enquiry is held to ascertain the truth orotherwise of the allegations levelled against the delinquentgovernment servant. The report of the Inquiry Officer is the basis onwhich the disciplinary authority has to take a decision as towhether or not the Government servant is guilty and deservesimposition of any penalty. It is, therefore, obligatory on the part ofthe Inquiry Officer to clearly bring out in the report the entireevidence adduced during the enquiry. The report should reflect the fact that the Inquiry Officer has taken into consideration all thecircumstances and facts of the case, as a rational and prudentman, and drawn his conclusions as to whether the charges are proved or not. Each conclusion should be based on cast iron logic.The Inquiry Officer should submit his report in writing, duly signedby him.
REPORT SHOULD CLEARLY INDICATE ALL THE EVIDENCEADDUCED DURING THE INQUIRY
1.2 It is now an established principle that the Inquiry Officerwhile writing his report, should rely only on the evidence adducedduring the inquiry and that he should not make use of any material
which is not brought to his notice during the course of the enquiry.In this context, the Supreme Court of India has observed as under :
“ It is highly improper for an Inquiry Officer during the conduct ofinquiry to attempt to collect any materials from outside source andnot make that information so collected, available to the delinquentofficer and, further make use of the same in the inquiry proceedings. There may also be cases where a very clever andastute Inquiry Officer, may collect outside information behind theback of the delinquent officer and without any apparent referenceto the information so collected, may have been influenced in the
conclusion recorded by him against the material behind the backdelinquent officer has been collected during the enquiry and suchmaterial has been relied on by Inquiry Officer, without its havingbeen disclosed to the delinquent officer it can be stated that theInquiry proceedings are vitiated”
PERSONAL KNOWLEDGE OF INQUIRY OFFICER SHOULD NOTBE USED
1.3 The next question that arises is whether the Inquiry Officer
can make use of his personal knowledge and whether his reportshould be influenced by it. Since the accepted principle in
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disciplinary proceedings is that the Inquiry Officer should consideronly that evidence which has been produced during the enquiry, it follows that no material from personal knowledge or the InquiringAuthority bearing on the facts of the case which has not appearedeither in the articles of charge or the statement of imputations or in
the evidence adduced during the enquiry and against which thedelinquent Government servant has had no opportunity to defendhimself should be imported into the case.
1.4 It is incumbent on the Inquiry Officer to consider all thematerial brought on record. He cannot afford to omit any materialswhich have been produced during the course of the enquiry from hisconsideration. The report of the Inquiry Officer has to be based onthe evidence adduced during the enquiry and anything happeningbefore or after the enquiry has no relevance. It is the duty of the
Inquiry Officer to ensure that no part of evidence which the accusedGovernment Servant was not given an opportunity to refute,examine, explain or rebut has been relied on against him.
REPORT SHOULD NOT CONTAIN RECOMMENDATIONS ONQUANTUM OF PUNISHMENT
1.5 The CCS (CCA) Rules, 1965 lay down that the InquiringAuthority is required to give a finding on the articles of charge,whether or not the same are proved, not proved or partially proved.The power to decide the quantum of punishment is vested in the
disciplinary authority under Rule 15 of the above said rules, TheInquiry Officer is, therefore, not empowered to giverecommendations as to the quantum of punishment in his report.The Inquiry Officers should avoid this. However, if the InquiryOfficer recommends the quantum of punishment in his repot, it willnot vitiate the enquiry since it amounts only to a recommendationwhich the disciplinary authority is not bound to accept. In thisregard, the Supreme Court in a case has observed as follows :
“ Unless the statutory rule or the specific order under which anofficer is appointed to hold an enquiry so requires, enquiry officerneed not make any recommendation as to the punishment whichmay be imposed on the delinquent officer, in case the charges framed against him are held proved at the enquiry, if however, theenquiry officer makes any recommendations like his findings on themerits, are intended merely to supply appropriate material for theconsideration of the government. Neither the findings nor therecommendations are binding on the government vide A.N.D SilvaVs Union of India, AIR, 1962 SC 1130.”
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1.6 The disciplinary proceedings have been declared as quasi- judicial proceedings by the Supreme Court. It is a characteristics ofsuch proceedings that conclusions should not only be based on
reasons, but the reasons should be made known. Disclosure ofreasons guarantees consideration. The condition to give reasonsminimizes arbitrariness, it gives satisfaction to the party againstwhom the report is made and it also enables the disciplinaryauthority to come to an independent decision of his own regardingthe guilt of the charged official. It also helps the appellate authorityto remove any imbalances in the inquiry report while deciding theappeal. It has also been held that if an order does not give anyreasons, it does not fulfill the elementary requirements of a quasi- judicial process. Both the above cases highlight the need for a
reasoned report by the Inquiry Officer.
Steps for Preparation of Inquiry Report
1.1 Prepare your Inquiry Report in a narrative form.
1.2 First paragraph of the report should mention about the fact of your
appointment as an inquiry officer. Please also indicate here the dates and places
where you concluded the inquiry.
1.3 State the case under inquiry including the articles of charges and statement
of imputation of misconduct or a gist thereof.
1.4 ndicate the charges admitted or not pressed during preliminary hearing.
1.5 Indicate the charges that were denied and actually inquired into.
1.6 Indicate any salient point regarding inspection of documents, indicating the
documents which were admitted.
1.7 Give brief statement of the case of disciplinary authority in respect of thecharges and gist of the evidence produced.
1.8 Give brief statement of the defence and the gist of the evidence in
defence.
1.9 Bring out the points which emerge for determination.
1.10 Give your objective analysis of the evidence adduced by both sides and
your assessment thereof in respect of each point for determination and your
finding thereon.
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1.11 Give your findings on each articles of charge with reasoning.
1.12 Sign the Inquiry Report.
2. Forward the following documents to the Disciplinary Authority:
• Report of Inquiry with spare copies equal to the number of Cos
• Folder containing the list of exhibits and the documents produced
during the inquiry by the PO and the CO.
• Folder containing the list of witnesses and their testimonies,
separately for state and defence witnesses.
• Folder containing written statement of defence, if any, and written
briefs filed by both sides, if any.
• Folder containing daily order sheet and applications, if any, moved
by the two sides during inquiry and orders passed thereon including
those passed by the disciplinary authority.
WHETHER INQUIRY OFFICER SHOULD RECORD HIS FINDINGON ADDITIONAL CHARGE?
1. Normally the Inquiry Officer should restrict his findings to
the articles of charge communicated to the accused officer.However, an Inquiry Officer can record a finding on a charge notincluded in the charge sheet served on the government servant inview of the explanation under Rule 23(i) of CCS (CCA) Rules, 1965.The Rules provide that if the Inquiry Officer is of the opinion that the proceedings of the enquiry establish any article of charge different from the original articles of charge, he may record his findings onsuch articles of charge provided that the findings on such article ofcharge shall not be recorded unless the government servant haseither admitted the facts on which such articles of charge is basedor he has had a reasonable opportunity of defending himselfagainst such article of charge. Therefore, if he is of the opinion thata charge other than those included in the charge sheet isestablished, he can record his findings on such additional chargeonly if any of the following two conditions are fulfilled.
(i) that the charged officer has admitted the facts on which sucharticles of charge is based or,
(ii) that the charged officer was given reasonable opportunity todefend himself against such charge during the course of the
enquiry.
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The Disciplinary Authority, if it is not itself theInquiring Authority may, for reasons to be recorded by itin writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authorityshall thereupon proceed to hold the further inquiryaccording to the provisions of Rule 14 as far as may be.
15.2 The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any,held by the Disciplinary Authority or where theDisciplinary Authority is not the Inquiring Authority acopy of the report of the Inquiring Authority, togetherwith its own tentative reasons for disagreement, ifany, . with the findings of the Inquiring Authority onany Article of Charge to the Government Servant whoshall be required to submit, if he so desires, his writtenrepresentation or submission to the DisciplinaryAuthority within fifteen days, irrespective of whetherthe report is favourable or not to the Governmentservant.
15.2-A The Disciplinary Authority shall consider therepresentation, if any, submitted by the Governmentservant before proceeding further in the mannerspecified in sub-rule (3) to (4).
15.3 If the Disciplinary Authority having regard to its findings on all or any of the Articles of Charge is of theopinion that any of the penalties specified in clauses (i)to (iv) of Rule 11 should be imposed on the Governmentservant, shall, notwithstanding anything contained inRule 16, make an order imposing such penalty;
Provided that in every case where it is necessary toconsult the Commission, the record of the inquiry shallbe forwarded by the Disciplinary Authority to theCommission for its advice and such advice shall betaken into consideration before making any orderimposing any penalty on the Government servant.
15.4 If the Disciplinary Authority having regard to its findings on all or any Article of Charge and on thebasis of the evidence adduced during the inquiry, is of
the opinion that Any of the penalties specified inclauses (v) to (ix) of Rule 11 should be imposed on the
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• However in certain deserving cases, some relief in the formof Compassionate Allowance may be sanctioned.
Note: (A) Now there is no limit or restriction of period in the case of penalty of
recovery from pay of the pecuniary loss. Now, any amount of loss can berecovered from the delinquent official during his service.
(B) In case a Government servant absorbed in Bharat SancharNigam Limited is proposed to be removed or dismissed fromservice for any subsequent misconduct after his absorptionsuch a proposal is required to be sent to DOT for a reviewunder the provisions of Rule 37-A of CCS(Pension) Rules,1972.
……………
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16.1 Subject to the provisions of sub-rule (3) of Rule 15, no orderimposing on a Government servant any of the penaltiesspecified in clause(i) to (iv) of Rule 11 shall be made exceptafter:
(a) informing the Government servant in writing of the
proposal to take action against him and of theimputation of misconduct or misbehavior on whichaction is proposed to be taken, and giving himreasonable opportunity of making such representationas he may wish to make against the proposal;
(b) holding an inquiry in the manner laid down in sub-rule(3) to (23) of Rule 14, in every case in which thedisciplinary authority is of the opinion that such inquiryis necessary;
(c)
taking the representation, if any, submitted by theGovernment servant under clause (a) and the record ofinquiry, if any, held under clause (b) intoconsideration;
(d) recording a finding on each imputation of misconduct ormisbehavior; and
(e) consulting the Commission where such consultation isnecessary.
16(1-A) Notwithstanding anything contained in clause(b) of sub- rule(I), if in a case it is proposed after considering therepresentation, if any, made by the Government servant underclause(a) of the sub-rule, to withhold increments of pay and suchwithholding of increments is likely to affect adversely the amount of pension payable to the Government servant or to withholdincrements of pay for a period exceeding three years or to withholdincrements of pay with cumulative effect for any period, an inquiryshall be held in the manner laid down in sub-rule (3) to (23) of Rule14, before making any order imposing on the Government servantany such penalty.
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Notwithstanding anything contained in this part, noappeal shall lie against-
(i) any order made by the President;
(ii) any order of an interlocutory nature or of the nature ofa step-in-aid for the final disposal of a disciplinary proceeding, other than an order of suspension;
(iii) any order passed by an inquiry authority in the courseof an inquiry under Rule 14.
23. Orders against which appeals lies
Subject to the provisions of Rule 22, a governmentservant may prefer an appeal against all or any of the following orders, namely:
(i)
an order of suspension made or deemed to have beenmade under Rule 10;
(ii) an order imposing any of the penalties specified in Rule11 whether made by the disciplinary authority or byany appellate or revising authority;
(iii) an order enhancing any penalty, imposed under Rule11;
(iv)
an order which-
(a) denies or varies to his disadvantage his pay,allowances, pension or other conditions of serviceas regulated by rules or by agreement, or
(b) interprets to his disadvantage the provisions ofany such rule or agreement;
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(a) stopping him at the efficiency bar in the time- scale of pay on the ground of his unfitness tocross the bar;
(b) reverting him while officiating in a higher service,grade or post, to a lower service, grade or post,otherwise than as a penalty,
(c) reducing or withholding the pension or denyingthe maximum pension admissible to him underthe rules;
(d) determining the subsistence and other
allowances to be paid to him for the period ofsuspension or for the period during which he isdeemed to be under suspension or for any portion thereof;
(e) determining his pay and allowances :-
(i) for the period of suspension, or
(ii) for the period from the date of hisdismissal, removal, or compulsory
retirement from service, or from the date ofhis reduction to a lower service, grade, post, time-scale or stage in a time-scale of pay, to the date of his reinstatement orrestoration to his service, grade or post; or
(f) determining whether or not the period from thedate of his suspension or from the date of hisdismissal, removal, compulsory retirement orreduction to lower service, grade, post, time-scaleof pay or stage in a time-scale of pay to the dateof his retirement or restoration to his service,grade or post shall be treated as a period spenton duty for any purpose.
Explanation. - In this rule-
(i) the expression ‘Government servant’ includes a person whohas ceased to be in Government service;
(ii) the expression ‘pension’ includes additional pension, gratuity
and any other retirement benefits.
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1. A Government servant, including a person who has ceased tobe in Government service, may prefer an appeal against all or any
of the orders specified in Rule 23 to the authority specified in thisbehalf either in the Schedule or by a general or special order of thePresident or, where no such authority is specified.
(i) Where such Government servant is or was a member ofa Central Service Group A or Group B or holder of aCentral Civil Post, Group A or Group B,
(a) to the appointing authority , where the orderappealed against is made by an authority
subordinate to it; or
(b) to the President where such order is made byany other authority;
(ii) where such Government servant is or was a member ofa Central Civil Service, Group C or Group D or holder ofa Central Civil Post, Group C or Group D, to theauthority to which the authority making the orderappealed against is immediately subordinate.
2.
Notwithstanding anything contained in sub-rule (1)
(i) an appeal against an order in a common proceedingheld under Rule 18 shall lie to the authority to whichthe authority functioning as the disciplinary authority for the purpose of that proceeding is immediatelysubordinate;
(ii) where the person who made the order appealedagainst becomes, by virtue of his subsequentappointment or otherwise, the appellate authority inrespect of such order, an appeal against such ordershall lie to the authority to which such person isimmediately subordinate.
Provided that where such authority is subordinate to thePresident in respect of a Government servant for whom President isthe appellate authority in terms of sub-clause (b) of clause (i) of sub- rule (1), the appeal shall lie to the President.
3. A Government servant may prefer an appeal against an order
imposing any of the penalties specified in Rule 11 to the President,where no such appeal lies to him under sub-rule (1) or sub-rule (2), if
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such penalty is imposed by any authority other than the President,on such Government servant in respect of his activities connectedwith his work as office-bearer of an association, federation or union, participating in the Joint Consultation and Compulsory ArbitrationScheme.
25. Period of limitation of appeals
No appeal preferred under this part shall be entertainedunless such appeal is preferred within a period of forty-five days from the date on which a copy of the order appealed against isdelivered to the appellant.
Provided that the appellate authority may entertain theappeal after the expiry of the said period, if it is satisfied that theappellant had sufficient cause for not preferring the appeal in time.
26. Forms and contents of appeal.
1. Every person preferring an appeal shall do so separately andin his own name.
2. The appeal shall be presented to the authority to whom theappeal lies, a copy being forwarded by the appellant to the
authority which made the order appealed against. It shall containall material statements and argument on which the appellant relies,shall not contain any disrespectful or improper language, and shallbe complete in itself.
3. The authority which made the order appealed against shallon receipt of a copy of the appeal, forward the same with itscomments thereon together with the relevant records to theappellate authority without any avoidable delay and withoutwaiting for any direction from the appellate authority.
27.
Consideration of appeal.
1. In the case of an appeal against an order of suspension, theappellate authority shall consider whether in the light of the provisions of Rule 10 and having regard to the circumstances of thecase, the order of suspension is justified or not and confirm orrevoke the order accordingly.
2. In the case of an appeal against an order imposing any of the penalties specified in Rule 11 or enhancing any penalty imposed
under the said rules, the appellate authority shall consider –
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(a) whether the procedure laid down in these rules hasbeen complied with and if not, whether such non- compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b)
Whether the findings of the disciplinary authority arewarranted by the evidence on the record; and
(c) Whether the penalty or the enhanced penalty imposedis adequate, inadequate or severe; and pass orders-
(i) confirming, enhancing, reducing or setting asidethe penalty; or
(ii) remitting the case to the authority which imposed
or enhanced the penalty or to any other authoritywith such direction as it may deem fit in thecircumstances of these cases;
Provided that –
(i) the Commission shall be consulted in all cases wheresuch consultation is necessary;
(ii) if such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in
clauses (v) to (ix) of Rule 11 and an inquiry under Rule14 has not already been held in the case, theappellate authority shall, subject to the provisions ofRule 19, itself hold such inquiry or direct that suchinquiry be held in accordance with the provisions ofRule 14 and thereafter, on a consideration of the proceedings of such inquiry make such orders as it maydeem fit;
(iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified inclauses (v) to (ix) of Rule 11 and an inquiry under Rule14 has already been held in the case, the appellateauthority shall make such orders as it may deem fitafter the appellant has been given a reasonableopportunity of making a representation against the proposed penalty; and
(iv) no order imposing an enhanced penalty shall be madein any other case unless the appellant has been given areasonable opportunity, as far as may be, in
accordance with the provisions of Rule 16, of making arepresentation against such enhanced penalty.
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4. In an appeal against any other matter specified in Rule 23 theappellate authority shall consider all the circumstances of the caseand make such orders as it may deem just and equitable.
28.
Implementation of orders in appeal.
The authority which made the order appealed against shallgive effect to the orders passed by the appellate authority.
29. Revision
1. Notwithstanding anything contained in these rules;
(i)
the President, or
(ii) the Comptroller and Auditor-General, in the case of aGovernment servant serving in the Indian Audit andAccounts Department, or
(iii) the Member(Personnel) Postal Service Board in the caseof a Government servant serving in or under the PostalServices Board and Adviser(Human ResourceDevelopment) Department of Telecommunications incase of a Government servant serving in or under the
Telecommunications Board, or
(iv) the Head of a Department directly under the CentralGovernment, in the case of a Government servantserving in a department or office ( not being theSecretariat or the Posts and Telegraph Board), underthe control of such head of a department, or
(v) the appellate authority, within six months of the dateof the order proposed to be revised, or
(vi)
any other authority specified in this behalf by thePresident by a general or special order, and withinsuch time as may be prescribed in such general orspecial order,
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made underthese rules or under the rules repealed by Rule 34 from which anappeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the
Commission where such consultation is necessary, and may –
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(b) confirm, reduce, enhance or set aside the penaltyimposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order orto any other authority directing such authority to makesuch further enquiry as it may consider proper in thecircumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penaltyshall be made by any revising authority unless the Government
servant concerned has been given a reasonable opportunity ofmaking a representation against the penalty proposed and where itis proposed to impose any of the penalties specified in clauses (v) to(ix) of Rule 11 or to enhance the penalty imposed by the ordersought to be revised to any of the penalties specified in thoseclauses, and if an inquiry under Rule 14 has not already been heldin the case no such penalty shall be imposed except after an inquiryin the manner laid down in Rule 14 subject to the provisions of Rule19, and except after consultation with the Commission where suchconsultation is necessary:
Provided further that no power of revision shall be exercisedby the Comptroller and Auditor-General, Member (Personnel),Postal Service Board, Advisor( Human Resource Development),Department of Telecommunications or the Head of department, asthe case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority, to which an appeal would lie, where noappeal has been preferred, is subordinate to him.
2.
No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation of an appeal,
(ii) the disposal of the appeal, where any such appeal hasbeen preferred.
3. An application for revision shall be dealt with in the samemanner as if it were an appeal under these rules.
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The President may, at any time, either on his own motion orotherwise, review any order passed under these rules, when anynew material or evidence which could not be produced or was not
available at the time of passing the order under review and whichhas the effect of changing the nature of the case, has come or hasbeen brought, to his notice:
Provided that no order imposing or enhancing any penaltyshall be made by the President unless the Government servantconcerned has been given a reasonable opportunity of making arepresentation against the penalty proposed or where it is proposedto impose any of the major penalties specified in Rule 11 or toenhance the minor penalty imposed by the order sought to bereviewed to any of the major penalties and if an inquiry under Rule
14 has not already been held in the case, no such penalty shall beimposed except after inquiring in the manner laid down in Rule 14,subject to the provisions of Rule 19, and except after consultationwith the Commission where such consultation is necessary.
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• Where two or more Government servants are involved in acase
(transaction) and are to be proceeded on the same charge onthe
same evidence.
WHO:-
• President or the highest authority competent to impose the penalty of dismissal make an order with the consent ofothers directing that disciplinary action may be takenagainst all of them in a common proceeding (Proforma 13)
• Such order shall specify
(i) which authority shall function as the Disciplinary for the purpose
of such common proceedings.
(ii) the penalties specified in Rule 11 which such authority shallbe
competent to impose
(iii) whether the procedure laid down under Rule 14 and Rule 15
shall be followed
• Annexure – II, II, III &IV are common in all charge sheets
• Common proceedings should not be held in the cases in whichthe Government servants accuse each other
• Common proceedings should not be held when the employeesinvolved are governed under different set of disciplinary rules
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• If there is a representation of bias from one accused theninvited representation from other accused also in order toavoid delay
• Common proceedings should not be held when one of the
persons involved is a Central Government employee andanother person is a State Government employee
• Common proceedings should not be held when one of the persons involved is a working Government servant andanother person is a retired Government servant
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• Conduct which led to his conviction on a criminal charge
• Onus lies on the Government servant to give intimation abouthis conviction
• May be placed under suspension, if already not done
• No wait for appeal or decision on his appeal in the higher
court
• Action to be initiated even if the court an appeal has been filed in a higher court and the sentence has beenstayed/suspended after admission of an appeal
• Skeleton inquiry – no formal charge sheet
• Show cause notice indicating the proposed penalty
• Not necessary to award the penalty of removal/dismissal
• Penalty must be proportionate
• CVC/UPSC to be consulted, wherever applicable
• Binding down for good behaviour under Cr. PC does notamount to conviction
• When appeal succeeds – automatic review of the case to bemade
•
Departmental Action on conviction is not double jeopardy
Rule 19 (ii) NOT REASONABLY PROCTICAL TO HOLD INQUIRY
• Reasons are invariably to be recorded in the file
• Such a stage can crop up at any stage
• Absconds after committing a criminal act
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• I.O.may put such questions to the witnesses as he thinks fit
• I.O. to rocord reasons as to what steps he has taken to askthe C.O. to take part in the inquiry and to avail theopportunities available to him under Rule 14
• I.O.to record treasons as to why he is proceeding ex-parte
• Copy of Daily Order Sheet and depositions to be sent to theC.O. at his last known address
• C.O. can participate at any time in the inquiry
• Not necessary to transact the whole business onces again ifthe C.O. participates in the inquiry midway
•
Copy of PO”s brief to be furnished to the C.O. even in ex-parte
• Copy of I.R. to be furnished to the C.O. even in ex-parte toelicit representation from him
• Copy of final order to be furnished to the C.O.
• If possible, charge sheet, copy of notice for furnishing I.R.and final and final order to be published in the major localdailies
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(1) (a) Future good conduct shall be an implied condition of everygrant of pension and its continuation under these rules.
(b) The appointing authority may, by order in writing,withhold or withdraw a pension or a part thereof, whether
permanently or for a specified period, if the pensioner isconvicted of a serious crime or is found guilty of gravemisconduct.
Provided that where a part of pension is withheld or withdrawn,the amount of such pension shall not be reduced below theamount of rupees one thousand two hundred seventy five permensem.
(2) Where a pensioner is convicted of a serious crime by a Court ofLaw, action under sub-rule (1) shall be taken in the light of the
judgement of the court relating to such conviction.
(3) In a case not falling under sub-rule (1), if the authority referredto in sub-rule (1) considers that the pensioner is prima facieguilty of grave misconduct, it shall before passing an orderunder sub-rule (1),
(a) serve upon the pensioner a notice specifying theaction proposed to be taken against him and theground on which it is proposed to be taken andcalling upon him to submit , within fifteen days of
the receipt of the notice or such further time notexceeding fifteen days as may be allowed by theappointing authority such representation as he maywish to make against the proposal; and
(b) take into consideration the representation, if any,submitted by the pensioner under Clause (a).
(4) Where the authority competent to pass an order under sub-rule(1) is the President, the UPSC shall be consulted before the order
is issued.
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(5) An appeal against an order under sub-rule (1) passed by anyauthority other than the President, shall lie to the President andthe President shall, in consultation with the UPSC, pass suchorders on the appeal as he deems fit.
Explanation: In this rule, -
(a) the expression ‘serious crime’ includes a crime involving anoffence under the Official Secrets Act, 1923 (19 of 1923).
(b) the expression ‘grave misconduct’ includes the communication ordisclosure of any secret official code or password or any sketch, plan, model, article, note, document or information, such as ismentioned in Section 5 of the Official Secrets Act, 1923, (which
was obtained while holding office under the Government) so asto prejudicially affect the interests of the general public or thesecurity of the state.
Rule 9: Right of the President to withhold or withdraw pension
(1) The President reserves to himself the right of withholding a pension or gratuity, or both, either in full or in part, orwithdrawing a pension in full or in part, whether permanently or for a specified period, and of ordering recovery from a pension or
gratuity of the whole or part of any pecuniary loss caused to theGovernment, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligenceduring the period of service, including service rendered upon re- employment after retirement:
Provided that the UPSC shall be consulted before any finalorders are passed:
Provided further that where a part of pension is withheld orwithdrawn the amount of such pension shall not be reduced
below the amount of rupees one thousand two hundred seventy five per mensem.
(2) (a) The departmental proceedings referred to in sub- rule (1), if instituted while the Government servant wasin service whether before his retirement or during hisre-employment, shall, after the final retirement of theGovernment servant, be deemed to be proceedingsunder this rule and shall be continued and concludedby the authority by which they were commenced in the
same manner as if the Government servant hadcontinued in service:
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Provided that where the departmental proceedings areinstituted by an authority subordinate to the President, thatauthority shall submit a report recording its findings to thePresident.
(b) The departmental proceedings, if not institutedwhile the Government servant was in service, whetherbefore his retirement, or during his re-employment,-
(i) shall not be instituted save with the sanction ofthe president,
(ii) shall not be in respect of any event which took place more than four years before suchinstitution, and
(iii)
shall be conducted by such authority and in such place as the President may direct and inaccordance with the procedure applicable todepartmental proceedings in which an order ofdismissal from service could be made in relationto the Government servant during his service.
(3) Deleted.
(4) In the case of Government servant who has retired onattaining the age of superannuation or otherwise and against whom
any departmental or judicial proceedings are instituted or wheredepartmental proceedings are continued under sub-rule(2), a provisional pension as provided in (Rule 69) shall be sanctioned.
(5) Where the President decides not to withhold orwithdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rateexceeding one-third of the pension admissible on the date ofretirement of a Government servant.
(6) For the purpose of this rule,-
(a) departmental proceedings shall be deemed to beinstituted on the date on which the statement ofcharges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on suchdate; and
(b) judicial proceedings shall be deemed to be instituted-
(i) in the case of criminal proceedings, on the date
on which the complaint or report of a police
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officer, of which the Magistrate takes cognizance,is made, and
(ii) in the case of civil proceedings, on the date the plaint is presented in the court.
Note: The normal Disciplinary Authority of the retired official hasnow no authority to drop the charges even when the gravemisconduct is not proved against the retired official in thedisciplinary proceedings continued against him after retirement.Every case of disciplinary proceedings continued after retirementhas now to be finally decided by the President.
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The purpose of the departmental proceedings is to punish the guilty
officials to show the Govt’s commitment to eliminate corruption and other
malpractices. The punishment of guilty also serves as a deterrent for others.
Elaborate procedures have been laid down in the Rules to ensure that justice isdone, the innocent is not punished and the guilty does not escape. The delays in
departmental proceedings add to the agony of the charged Government servant
who may ultimately be proved to be innocent. On the other hand, the delays also
result in preventing the Govt from getting rid of the guilty persons at the earliest
and the guilty persons continue to enjoy the fruits of Government service at
considerable cost to the Govt. It has to be remembered that justice delayed is
justice denied. It is therefore, essential that all necessary steps are taken to
avoid delay in Departmental proceedings.
Common reasons for delays in the departmental proceedings can be
attributed to the Disciplinary authority, Inquiry Officer and the charged official.
Delay attributable to Disciplinary authorities.
(1) Delay in preparation of charge-sheet:
The decision to charge-sheet an officer is taken on the basis of the documentary
and oral evidence already collected during investigation. Therefore, once the
decision to charge sheet an official is taken, charge sheet should be prepared
and served at the earliest. Unjustified delay in serving charge-sheet have some
times led to allegations of malafide, resulting in quashing of the departmental
proceedings.
(2) Preparation of a defective charge-sheet:
Sometimes a charge–sheet has to be cancelled because of defectsand a fresh charge-sheet has to be issued. Charge-sheet is themost important document in departmental proceedings and utmostcare should be taken while preparing it.
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Sometimes all the documents referred to in Rules 14(6) viz copies ofthe charge-sheet etc are not sent to the I.O, along with his order ofappointment. All the prescribed documents should invariably be
sent to the I.O along with the order of appointment.
(4) Appointment of P.O
Sometimes P.O is not appointed simultaneously with the I.O. Order for appointment of P.O should issue simultaneously.
(5) Delay in inspection of documents:
Since the documents are already in possession of the DA, theseshould be allowed to be inspected by the CO at the prescribed time.It would be preferable, if possible, if copies of listed documents aresupplied to the C.O along with the charge-sheet itself.
Delay attributable to I.O
(1) Delay in fixing date of Preliminary hearing
Preliminary hearing should be fixed by the I.O as far as possiblewithin 10 days of the receipt of the orders of appointment. Noadvance preparation is necessary for fixing the preliminary hearing
as it is only for planning future course of the inquiry.
(2) Delay in production and inspection of additionaldocuments
Most of delays in departmental inquiries are on this account. Assoon as the C.O has given the list of additional documents, I.Oshould decide their relevance. If necessary, he can fix a hearing todecide this question. Once a decision on relevance has been taken,I.O should not lose any time in writing to the controlling authority for production of the additional documents. He can seek the assistanceof Disciplinary Authority also in procuring the additional documents.
(3) Delay in regular hearing
As soon as possible after inspection of documents by the C.O, IOshould fix the date of regular hearing. Notice should be sent to theCO, PO, witnesses well in time to avoid request for adjournments.As far as possible, the regular hearing should be held from day today continuously. Any adjournment, should be allowed only onmedical grounds supported by necessary medical certificates.
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The IO should prepare his report as soon as possible after thesubmission of written briefs by the CO. Any undue delay in writingthe report may sometimes vitiate the proceedings.
Delays attributable to the charged officers:
(1) Submission of written statement
The CO frequently asks for inspection of listed and additionaldocuments before submitting his written statement of defence.Strictly speaking, it is not necessary to allow inspection ofdocuments at this stage. He can be told to either admit or deny thecharge. He can inspect the desired documents during the inquiry.
However, if possible, copies of the listed documents can besupplied along with the charge-sheet itself.
(2) Allegation of bias
Inquiry proceedings have to be stayed once a representationalleging bias against the IO is made by the CO. In common proceedings, the CO tend to give such representation one after theother. In such case, once one of the COs gives a representation,other COs may be asked whether they want to make any suchrepresentation and all these representation may be decided.
(3) Delay in nominating the Defence Assistant
Sometimes the CO comes for preliminary hearing without his DA onthe excuse that he is looking for a suitable officer to act as his DAand ask for an adjournment. The nature of formalities to becompleted at PH are not such as would necessitate the presence ofDA. Therefore PH cane be held even if the DA of the CO is not present.
(4) Inspection of documents
The CO may insist on copies of bulky documents. He can beinformed that he take extracts and there is no provision for givinghim copies of documents. The CO may also give ambiguous list ofadditional documents and witness. He may be asked to givecomplete details of the documents and witness and the authoritiescontrolling them alongwith the reasons justifying their relevance.Relevance of the additional documents/witness should be decidedexpeditiously, if necessary, by fixing a hearing instead of enteringinto protracted correspondence.
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Sometimes the CO submits the name of his DA without ascertainingthe willingness of the concerned Government servant. When thenotice is issued to him, he shows his unwillingness to act as DA.
The proceedings are, therefore, delayed. To avoid this, it wouldbe desirable that at the time of issuing notice fo PH, the IO shoulddirect the CO to give the name of his DA and his controllingauthority alongwith written consent from the DA. Also, if the COwant a legal practitioner as his DA, he should produce the permission to do so from the Competent authority.
(6) Regular hearing
CO can try to delay the proceedings by seeking adjournments on
flimsy grounds. IO should be reasonable but firm in dealing withsuch requests. CO may raise objection to the manner in which IOuses his discretion for conducting the proceedings. The IO shoulddecide matters on merit. However, he should firmly enforce hisorders. The CO has a right to reasonable opportunity to defendhimself. However, he cannot be allowed any unreasonableopportunity to delay the proceedings.
(7) Submission of written briefs
IO should prescribe a definite time limit for the submission of
written briefs, so that the CO or his DA are not able to delay thematter unreasonably.
(8) Filling of Court cases
Some COs would try to delay the proceedings by going toCourts time and again raising various issues. IO should continuethe hearings, unless of course a stay has been granted by anyCourt.
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COMMON DEFECTS WHICH VITIATE THEDISCIPLINARY PROCEEDINGS
CCS(CC&A) Rules, 1965 prescribe a detailed procedure whichshould be followed meticulously while handling disciplinary cases.Failure to observe the laid down procedure vitiates the proceedingsas disciplinary proceedings are quasi judicial in nature. Somecommon defects which vitiate the disciplinary proceedings are asunder:-
1. Charge Sheet has been prepared in the language which the Charged
officer does not understand .
2.
There is an unreasonable and unexplained delay in issuing the ChargeSheet.
3. Charges are vague i.e. language is ambiguous or date, time, location of
the incident not mentioned.
4. Charge Sheet is signed by an authority who is not competent to impose any
penalty.
5. Ex-parte proceedings are held without serving the Charge Sheet on the
Charged officer.
6. Inquiring authority is appointed before expiry of the time allowed for
replying the Charge Sheet.
7. Copies of listed documents are not provided to the Charged Officer.
Charged Officer is not allowed to inspect the listed documents and take
notes.
8. Additional documents asked for by the Charged Officer are denied without
assigning any reason.
9. Ex-parte proceedings held when charged officer is not able to attend the
proceedings due to non –receipt of subsistance allowance.
10. Inquiry held without associating Charged Officer.
11. Copies of relied upon statements of witnesses recorderd during the
course or preliminary investigation are not provided to the Charged
Officer.
12. Officer who conducted preliminary investigation is appointed as Inquiring
Authority.
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Shri ‘X’ a locally officiating DE was granted leave w.e.f.1.3.91 for a period of 30 days. On expiry of this leave, he applied for
extension of his leave by another 30 days, which was granted. On1st May, 1991, another application for grant of leave for 40 dayswas received, but the request was not accepted and the officer wasordered to resume duty forthwith. However, the officer failed toresume his duties and remained unauthorisedly absent from office.
He was served with a charge sheet by the CGM of the Circle,as Disciplinary Authority on 7.11.1991 on the allegation of willfulabsence from duty under Rule 16 of the CCS(CCA) Rules ,1965 andsimultaneously an order of suspension was also issued by theCGM. The charge sheet was accompanied by the statement of
imputations of misconduct on the basis of which action was proposed to be taken against him . He represented against thecharge sheet and demanded that an oral inquiry should be heldagainst him. The Disciplinary Authority accepted the request anddecided to hold an oral inquiry as per Rule 14 of the CCS (CCA)Rules, 1965.
On 19.7.1993, an Inquiry Officer was appointed under Rule14 (2) of the CCS (CCA) Rules, 1965. The Presenting Officer wasappointed vide an order dated 8.12.1993. On 1.3.1994 in
supersession of the charge sheet dated 7.11.1991, another chargesheet under rule 14 of the CCS (CCA) Rules, 1965 based on thesame allegation of willful absence from duty and the fact that hehad not reported for duty till date was served on Shri X. InquiryOfficer already appointed was asked to expedite the inquiry.
In pursuance if his order of appointment dated 19.7.93 Shri‘A’ the Inquiry Officer prepared the inquiry report dated 8.10.95. He felt convinced, on the basis of the evidence brought before him
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