No.DOPT-1711452233125
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel and Training
ESTT.(Estt. A-III)
******
Dated 26 March, 2024
OFFICE MEMORANDUM
Handling of Disciplinary Proceedings in respect of Central Civilian employees.
(I) Procedural aspects during the course of inquiry under Rule 14 of the CCS (CCA) Rules.
(II) Clarification/ Interpretation of penalties under CCS (CCA) Rules, 1965
(III) Simultaneous action of prosecution and initiation of departmental proceedings
(IV) Sharing of advice of UPSC with the Charged Officer
(V) Special Procedure in Disciplinary Action
(VI) Disciplinary Jurisdiction of CAT/Election Commission of India
(VII) Suspension
(VIII) Sealed Cover Procedure
(IX) Vigilance Clearance for obtaining passport
(I) PROCEDURAL ASPECTS DURING THE COURSE OF INQUIRY UNDER RULE 14 OF THE CCS (CCA) RULES
Department of Personnel and Training has issued several executive instructions on the various matters concerning procedural aspects during the course of inquiry under CCS (CCA) Rules, 1965. These instructions, usually in the form of Office Memorandum, are circulated amongst the stakeholders for facilitating them in the proper implementation of the rules/procedures regarding handling disciplinary proceedings with a view to provide easy access to the stakeholders. The essence of these instructions in the matter has been summarized in the following paras for guidance and better understanding: –
2. Inquiring Authority (Inquiry Officer)-
2.1 Rule 14(2) of the CCS (CCA) Rules, 1965:
(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.
Provided that where there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the Complaints Committee established in each Ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
Explanation.—
(i) Where the disciplinary authority itself holds the inquiry, 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 to the disciplinary authority.
(ii) Where the disciplinary authority appoints a retired Government servant as inquiring authority, any reference in sub-rule (7) to subrule (20) and in sub-rule (22) shall include such authority.
[Rule 14(2) of the CCS (CCA) Rules, 1965]
2.1.1 Department of Personnel and Training has issued several instructions, in the past, for streamlining of conduct of Disciplinary Proceedings in order to reduce delay and to ensure expeditious disposal of Disciplinary cases. Besides, this Department has been emphasizing upon the need for conforming with the procedures prescribed in the Central Civil Services (Classification, Control and Appeal) Rules, 1965 {CCS(CCA) Rules, 1965}, as amended from time to time, while handling disciplinary proceedings conducted in Ministries/Departments. It is imperative that the inquiry is conducted strictly in accordance with the procedures prescribed for this purpose. However, it has been observed that, many a time, Hon’ble Administrative Tribunals and Courts have held the proceedings, concluded by the Inquiry Officer, as non-est for not being in conformity with the laid down procedure. Moreover, in several cases, referred to this Department by the Administrative Ministries/Departments for advice, it has been noticed that Inquiring Authorities/Inquiry Officers sometimes inadvertently miss the essential steps while conducting inquiry, in most of cases, due to lack of thorough knowledge of the procedures prescribed for conducting departmental proceedings; thereby committing avoidable lapses, which result in setting aside of inquiry by the Tribunals/Courts.
In order to avoid such a situation and with a view to strengthening the knowledge base and skill of IAs/IOs in handling a Departmental Inquiry, it has been decided that, in future, it may be ensured that IAs/IOs are mandated to clear a course related to procedural steps for holding Disciplinary Proceedings/ Departmental Inquiries, on iGOT Platform (https://igotkarmayogi.gov.in/ OR iGOT Karmayogi App). One such course available on the iGOT Platform is “Conduct of Enquiry in Disciplinary Matters”.
[OM No. 11012/36/2023-PP.A-III dated 11.10.2023]
2.2 Rule 14(5) of the CCS (CCA) Rules, 1965:
“5 (a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under subrule (2), an inquiring authority for the purpose.
(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the “Presenting Officer” to present on its behalf the case in support of the articles of charge.
Explanation- For the purposes of this rule, the expression ‘Government servant’ includes a person who has ceased to be in Government service.”
[Rule 14(5) of the CCS (CCA) Rules, 1965]
2.3 The following measures had been suggested to the various Ministries/Departments in regard to the appointment of Inquiry officers in the context of avoiding delays in departmental proceedings caused by excessive preoccupation of the Inquiry Officer and his unfamiliarity with the prescribed procedures:-
(i) In each Ministry/Department, a specified officer(s) of appropriate rank shall be nominated and earmarked for the purpose of conducting all the departmental enquiries arising within that Ministry/Department.
(ii) As soon as an occasion arises for taking up such an enquiry, the nominated officer will be relieved of his normal duties to such an extent as may be necessary to enable him to devote full and careful attention to the completion of the enquiry and the submission of his report. During this time, the work of which the officer is to be relieved may be distributed amongst other officers.
(iii) The nominated officers should familiarize themselves with the rules and essential procedural requirements and appreciate the difference between departmental enquiries and trials in the criminal courts. The maintenance of close personal contact with the Ministry of Home Affairs (now Deptt. of Personnel) will enable them quickly to resolve any doubts or difficulties which may arise.
[Para 2 of the OM No. 39/3272-Ests.(A) dated 13.12.1972]
(iv) Where, the volume of work in connection with the departmental inquiries is so large as to justify the appointment of a whole-time officer for the purpose of conducting departmental inquiries, Ministries/ Departments may consider the question of appointing a whole-time officer, fully trained in conducting disciplinary proceedings for a department or a group of offices or for a region.
[Para 3 of the OM No. 39/3272-Ests.(A) dated 13.12.1972]
2.4 Only disinterested officers should be appointed as Inquiry Officers in departmental proceedings. There is no bar to the immediate superior officer holding an inquiry but, as a rule, the person who undertakes this task should not be suspected of any bias in such cases. The authorities concerned should bear this in mind before an Enquiry Officer is appointed in a disciplinary case.
[Para 4 of the OM No. 6/26/60-Ests (A) date 16.02.1961]
2.5 Inquiries in disciplinary proceedings against gazetted officers of all grades involving lack of integrity or an element of vigilance are alone entrusted to Commissioner for Departmental Inquiries under the Central Vigilance Commission and other cases of disciplinary proceedings involving purely administrative or technical lapses, are not referred to the said Commissioner. It was also not possible to entrust the departmental inquiries against non-Gazetted employees to the Commissioner for Departmental Inquiries in view of the very large number of disciplinary cases of such employees coming up every year. It was further pointed out that the existing instructions contained in Ministry of Home Affairs (now Department of Personnel) O.M. No.6/26/60-Ests (A) dated 16th February 1961 already emphasize the desirability of only disinterested officers being appointed as Inquiry officers in departmental proceedings. It is also provided therein that while there is no bar to the immediate superior officer holding an inquiry, as a rule, persons who undertake this task should not be suspected of any bias in such cases and that the authorities concerned should bear this in mind before an Inquiry Officer is appointed in a disciplinary case.
[Para 2 of OM No. 39/40/70-Ests.(A) dated 09.11.1972]
2.6 Where a representation by the delinquent official against the appointment of a particular Inquiry officer on grounds of bias, is rejected by the disciplinary authority, it should be open to the delinquent official, to prefer an appeal to the appellate authority. It was pointed out that though there was no provision in the CCS (CCA) Rules for filing an appeal against an order appointing a person as Inquiry Officer in a disciplinary proceeding, such an order could, nevertheless, be reviewed under the said Rules. The Staff Side desired that in view of this position, the Inquiry officer should stay the proceedings if an application for review is filed by the delinquent official. It was agreed that obviously this should be done and the attention of the competent authorities could be drawn to the need for staying the proceedings once a review petition was submitted in such cases.
[Para 3 of the OM No. 39/40/70-Ests.(A) dated 09.11.1972]
2.7 Bias Petition against IO: It has accordingly been decided that whenever an application is moved by a Government Servant against whom disciplinary proceedings are initiated under the CCS (CA) Rules against the inquiry officer on grounds of bias, the proceedings should be stayed and the application referred, alongwith the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon.
[Para 4 of the OM No. 39/40/70-Ests.(A) dated 09.11.1972]
2.8 According to Rule 14(5) of the CCS (CCA) Rules, 1965, the disciplinary authority may itself inquire into the charges against the accused Government servant or appoint an Inquiry officer for the purpose. However, it should be possible in a majority of cases, and the more serious ones at any rate, to ensure that the disciplinary authority himself does not conduct the inquiry. It may still be not practicable to ensure in all cases that the disciplinary authority himself would not be the Inquiry Officer. Such a course may be necessary under certain circumstances particularly in small field formations where the disciplinary authority as well as the Inquiry officer may have to be one and the same person. It has accordingly been decided that unless it is unavoidable in certain cases as mentioned above, the disciplinary authority should refrain from being the Inquiry Officer and appoint another officer for the purpose.
[Para 3 of the OM No. 35014/1/76-Estt.(A) dated 29.07.1976]
2.9 IO senior from the CO: DoPT, vide OM No. 7/1/70-Est.(A) dated 06.01.1971, requested all the Ministries/ Departments to note the observations of the Committee on Subordinate Legislation (Fourth Lok Sabha), which examined the question of appointment of inquiry officers to conduct oral inquiry into the charges leveled against delinquent officer under CCS (CCA) Rules, 1965. The Committee observed that though they agree that it may not be possible to entrust always inquires against delinquent officer to gazette officers the inquiries should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into as inquiry by a junior officer cannot command confidence which it deserves.
[OM No. 7/1/70-Est.(A) dated 06.01.1971]
3. Examination, Cross examination and re-examination of Witnesses-
3.1 Rule 14(14) of the CCS (CCA) Rules, 1965:
“(14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to reexamine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.”
[Rule 14(14) of the CCS (CCA) Rules, 1965]
3.2 Whether statements made by the witnesses during the preliminary inquiry/investigation can be straightway taken on record as evidence in examination-in-chief at oral inquiries–
(i) On considering the observations made by the Supreme Court in certain cases it may be legally permissible and in accord with the principles of the natural justice to take on record the statements made by witnesses during the preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recording the evidence of the prosecution witnesses de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should however, be made available to the delinquent officer sufficiently in advance to at least three days before the date on which it is to come up at the inquiry.
(ii) As regards the statements recorded by the Investigating Officers of the C.B.I., which are not signed, it has been decided that the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded there under that it had been read out to the person concerned and had been accepted by him.
[Para 2 & 3 of the OM No. 134/7/75-AVD-I dated 01.06.1975]
3.3 Witnesses produced by or on behalf of the disciplinary authority in a disciplinary proceeding shall be examined by or on behalf of the presenting officer and may be cross-examined by or on behalf of the Government servants, and the presenting officer would also be entitled to re-examine the witnesses on any points on which they have been leave of the inquiring authority. Doubts have been expressed in some quarters if cross-examination by or on behalf of the Government servant could be allowed after the presenting officer has re-examined the witnesses. It is hereby clarified that if re-examination by the presenting officer is allowed on any new matter not already covered by the earlier examination/cross-examination, a cross-examination on such new matters covered by the re-examination may also be allowed to meet the ends of natural justice.
[OM No. 7/11/70-Est.(A) dated 24.09.1970]
4. Supply of Documents to the Charged Officer
4.1 Rule 14(11) of the CCS (CCA) Rules, 1965:
“(11) The inquiring authority shall, if the Government servant fails to appear 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 case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence:
(i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3);
(ii) submit a list of witnesses to be examined on his behalf;
NOTE- If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses 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 inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).
NOTE.- The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government.”
[Rule 14(11) of the CCS (CCA) Rules, 1965]
4.2 Hon’ble Supreme Court in the matter of Raizada Trilok Nath Vs. the Union of India, decided that failure to furnish copies of documents such as the First Information Report, and statements recorded during investigation amounts to a violation of Article 311(2) of the Constitution.
[Para 1 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.3 The right of access to official records is not unlimited and it is open to the Government to deny such access if in its opinion such records are not relevant to the case, or it is not desirable in the public interest to allow such access. The power to refuse access to official records should, however, be very sparingly exercised. The question of relevancy should be looked at from the point of view of the defence and if there is any possible line of defence to which the document may, in some way be relevant, though the relevance is not clear to the disciplinary authority at the time that the request is made, the request for access should not be rejected. The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer. Cases of the latter type are likely to be very few and normally occasion for refusal of access on the ground that it is not in public interest should not arise if the document is intended to be used in proof of the charge and if it is proposed to produce such a document before the Inquiry Officer, if an enquiry comes to be held. It has to be remembered that serious difficulties arise when the Courts do not accept as correct the refusal by the disciplinary authority, of access to documents. In any case, where it is decided to refuse access, reasons for refusal should be cogent and substantial and should invariably be recorded in writing.
[Para 2 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.4 Government servants involved in departmental enquiries often ask for access to and or supply of copies of –
1) documents to which reference has been made in the statement of allegations;
2) documents and records not so referred to in the statement of allegations but which the Government servant concerned considers are relevant for the purposes of his defence;
3) statements of witnesses recorded in the course of –
i. a preliminary enquiry conducted by the department; or
ii. investigation made by the Police.
4) Reports submitted to Government or other competent authority including the disciplinary authority by an officer appointed to hold a preliminary inquiry to ascertain facts;
5) reports submitted to Government or other competent authority including the disciplinary authority, by the Police after investigation.
[Para 3 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.5 A list of the documents which are proposed to be relied upon to prove the charge and the facts stated in the statement of allegations should be drawn up at the time of framing the charge (This will incidentally reduce the delay that usually occurs between the service of the charge-sheet and the submission of the written statement). The list should normally include documents like the First Information Report if there is one on record. Anonymous and pseudonymous complaints on the basis of which inquiries were started need not be included in the list. The list so prepared should be supplied to the officers either along with the charge-sheet or as soon thereafter as possible. The officer should be permitted access to the documents mentioned in the list if he so desires.
[Para 4 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.6 If the officer requests for any official records other than those included in the list, the request should ordinarily be acceded to in the light of what has been stated in para 4.3 above.
[Para 5 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.7 While there is no doubt that the Government servant should be given access to various official records like documents to which reference has been made in the statement of allegations and documents and records which the Government servant concerned considers are relevant for the purposes of his defence though the relevancy is not clear to the disciplinary authority, doubts very often arise whether official records include the documents mentioned at items, 4 and 5 in para 4.4 above. Reports made after a preliminary enquiry, or the report made by the Police after investigation, other than those referred to in clause (a) of Sub-Section 1 of Section 173 of the Code of Criminal Procedure, 1898, are usually confidential and intended only to satisfy the competent authority whether further action in the nature of a regular departmental inquiry or any other action is called for. These reports are not usually made use of or considered in the inquiry. Ordinarily even a reference to what is contained in these reports are not made in the statement of allegations. It is not necessary to give access to the Government servant to these reports. (It is necessary to strictly avoid any reference to such reports in the statement of allegations as, if any reference is made, it would not be possible to deny access to these reports; and giving of such access to these reports will not be in public interest for the reasons stated above).
[Para 6 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.8 The only remaining point is whether access should be given to the statements of witnesses recorded in the course of a preliminary enquiry conducted by the department or investigation made by the Police and if so, whether the access should be given to the statements of all witnesses or to the statements of only those witnesses who are proposed to be examined in proof of the charges or of the facts stated in the statement of allegations. These statements can be used only for the purposes of cross-examination and the Government servant is called upon to discredit only those witnesses whose statements are proposed to be relied upon in proof of the charges or of the facts stated in the statement of allegations. As such the Government servant concerned need not be given access to the statements of all witnesses examined in the preliminary enquiry or investigation made by the Police and access should be given to the statements of only those witnesses who are proposed to be examined in proof of the charges or the facts stated in the statement of allegations. In some cases, the Government servant may require copies of the statements of some witnesses on which no reliance is proposed to be placed by the disciplinary authority on the ground that he proposes to examine such witnesses on his side and that he requires the previous statement to corroborate the testimony of such witnesses before the inquiring authority. Previous statements made by a person examined as a witness is not admissible for the purposes of corroboration and access to such statements can safely be denied. However, the law recognises that if the former statement was made at or about the time when the fact took place and the person is called to give evidence about such fact in any proceedings, the previous statement can be used for purposes of corroboration. In such cases, it will be necessary to give access to the previous statements.
[Para 7 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.9 The further point is the stage at which the Government servant should be permitted to have access to the statements of witnesses proposed to be relied upon in proof of the charges or of the facts stated in the statement of allegations. As stated earlier, the copies of the statements of the witnesses can be used only for the purpose of cross-examination and, therefore, the demand for copies must be made when witnesses are called for examination at the oral enquiry. If such a request is not made, the inference would be that the copies were not needed for that purpose. The copies cannot be used at any subsequent stage as those statements are not to be taken into consideration by the disciplinary authority also. Copies should be made available within a reasonable time before the witnesses are examined. It would be strictly legal to refuse access to the copies of the statements prior to the evidence stage in the departmental enquiry. However, if the Government servant makes a request for supply of copies of statements referred to at (3) of para 4.4 above before he files a written statement, the request, shall be acceded to.
[Para 8 of the OM No. 30/5/61-AVD dated 25.08.1961]
4.10 It is not ordinarily necessary to supply copies of the various documents and it would be sufficient if the Government servant is given such access as is permitted under the rules referred to above. Government servants involved in departmental proceedings when permitted to have access to official records sometimes seek permission to take photostat copies thereof. Such permission should not normally be acceded to especially if the officer proposes to make the photostat copies through a private photographer as thereby third parties would be allowed to have access to official records which is not desirable. If, however, the documents of which photostat copies are sought for are so vitally relevant to the case (e.g., where the proof of the change depends upon the proof of the hand-writing or a document the authenticity of which is disputed), the Government should itself make photostat copies and supply the same to the Government servant. In cases which are not of this or similar type (the example given above is only illustrative and not exhaustive), it would be sufficient if the Government servant is permitted to inspect the official records and take extracts therefrom as is provided for in the provision of the Central Civil Services (Classification Control and Appeal) Rules.
[Para 9 of the OM No. 30/5/61-AVD dated 25.08.1961]
5. Defence Assistant-
5.1 Rule 14(8) of the CCS (CCA) Rules, 1965:
“(8) (a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits;
Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.
Note: The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.
(b) The Government servant may also take the assistance of a retired 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.”
[Rule 14(8) of the CCS (CCA) Rules, 1965]
5.2 When on behalf of the disciplinary authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or a Government Law Officer (such as Legal Adviser, Junior Legal Adviser), there are evidently good and sufficient circumstances for the disciplinary authority to exercise his discretion in favour of the delinquent officer and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court as arbitrary and prejudicial to the defence of the delinquent Government servant.
[OM No. 11012/7/83-Estt.(A) dated 23.07.1984]
5.3 A Govt. servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Govt. servant or the place of inquiry. Accordingly, in all cases where the inquiring authority rejects the request of the charged Govt. servant for engaging a defence assistant, from any station other than the headquarters of such Govt. servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Govt. servant to enable him to make a representation against the order, if he so desires, to the disciplinary authority. On receipt of the representation from the charged Govt. servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the inquiring authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in–aid of the Inquiry, no appeal shall/lie against that order.
[Para 4 of the OM No. 11012/3/86-Estt.(A) dated 29.04.1986]
5.4 In terms of rule 14 (8) (b) of the CCS (CCA) Rules, 1965, the Government servant concerned may take the assistance of a retired Government servant subject to the following conditions :-
i) The retired Government servant concerned should have, retired from service under the Central Government.
ii) If the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, contained in Rule 14 (8) of the CCS (CCA) Rules, 1965 would apply.
iii) The retired Government servant concerned should not have, in any manner, been associated with the case at investigation stage or otherwise in his official capacity.
iv) The retired Government servant concerned should not act as a defence assistant in more than seven cases at a time. The retired Government servant should satisfy the inquiring officer that he does not have more than seven cases at hand including the case in question.
[OM No. 11012/11/2002-Estt.(A) dated 05.02.2003]
5.5 The government servant (defence assistant) who has been permitted to assist the accused official should be permitted to examine, cross examine and re-examine witnesses and make submission before the Inquiry Officer on behalf of the accused official, if the accused official makes a request in writing in this behalf.
[Para 1(4) of the OM No. 6/26/60-Ests.(A) dated 08.06.1962]
6. Written brief by the Presenting Officer:
6.1 Rule 14(19) of the CCS (CCA) Rules, 1965:
“(19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire.”
[Rule 14(19) of the CCS (CCA) Rules, 1965]
6.2 It will be seen from the phraseology of rule 14(19) that the inquiring authority has to hear arguments that may be advanced by the parties after their evidence has been closed. But he can, on his own or on the desire of the parties, take written briefs. In case he exercises the discretion of taking written briefs, it will be but fair that he should first take the brief from the Presenting Officer, supply a copy of the same to the Govt. servant. In case the copy of the brief of the Presenting Officer is not given to the Govt. servant, it will be like hearing arguments of the Presenting Officer at the back of the Govt. servant. In this connection, attention is also invited to the judgement of the Calcutta High Court in the case of Collector of Customs Vs. Mohd. Habibul [SLR 1973)(1) Calcutta, 321] in which it is laid down that the requirement of rule 14(19) of the CCS(CCA) Rules, 1965 and the principles of natural justice demand that the delinquent officer should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief.
[Para 2 of the OM No 11012/18/77-Estt(A) dated 02.09.1978]
7. General Examination
7.1 Rule 14(18) of the CCS (CCA) Rules, 1965:
“(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.”
[Rule 14(18) of the CCS (CCA) Rules, 1965]
7.2 Rule 14(18) of CCS (CCA) Rules, 1965, provides that, “the inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him”. This is a formal action required to be taken by the inquiry officer before closing the inquiry. It has been seen that many a times this is not formally recorded and the inquiry gets vitiated. It is imperative that the inquiry is conducted strictly in accordance with the procedures prescribed.
[Para 3 of the OM No. 11012/3/2015-Estt.A-III dated 18.02.2015]
8. Ex-parte proceedings
8.1 Rule 14(20) of the CCS (CCA) Rules, 1965:
“(20) If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.”
[Rule 14(20) of the CCS (CCA) Rules, 1965]
8.2 In the case of Ghanshyam Das Srivastava Vs. State of Madhya Pradesh (AIR 1973 SC 1183), the Supreme Court had observed that where a Government servant under suspension pleaded his inability to attend the enquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him exparte would be in violation of the provision of Article 311(2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings.
[Para 1 of the OM No. 11012/10/76-Estt.(A) dated 06.10.1976]
8.3 The judgment of the Supreme Court referred to in para 8.2 above indicates that in that case, the disciplinary authority proceeded with the enquiry exparte notwithstanding the fact that the Government servant concerned had specifically pleaded his inability to attend the enquiry on account of financial difficulties caused by non-payment of subsistence allowance. The Court had held that holding the enquiry exparte under such circumstances would be violative of Article 311(2) of the Constitution on account of denial of reasonable opportunity of defence. This point may also be kept in view by all authorities concerned before involving the provisions of rule 14(20) of the CCS (CCA) Rules, 1965.
[Para 3 of the OM No. 11012/10/76-Estt.(A) dated 06.10.1976]
9. Personal hearing by the Appellate Authority
Rule 27 of the CCS(CCA) Rules, 1965 does not specifically provide for the grant of a personal hearing by the appellate authority to the Government servant before deciding the appeal preferred by him against a penalty imposed on him. The principle of right to personal hearing applicable to a judicial trial or proceeding even at the appellate stage is not applicable to departmental inquiries, in which a decision by the appellate authority can generally be taken on the basis of the records before it. However, a personal hearing of the appellant by the appellate authority at times will afford the former an opportunity to present his case more effectively and thereby facilitate the appellate authority in deciding the appeal quickly and in a just and equitable manner. As Rule 27 of the CCA Rules does not preclude the grant of personal hearing in suitable cases, it has been decided that where the appeal is against an order imposing a major penalty and the appellant makes a specific request for a personal hearing, the appellate authority may after considering all relevant circumstances of the case, allow the appellant, at its discretion, the personal hearing.
[Para 2 of the OM No. 11012/20/85-Estt.(A) dated 28.10.1985]
10. Circumstances for holding detailed inquiry under Rule 16 (Minor penalty proceeding):
Rule 16(1-A) of the CCS(CCA) Rules, 1965 provides for the holding of an inquiry even when a minor penalty is to be imposed in the circumstances indicated therein. In other cases, where a minor penalty is to be imposed, Rule 16(1) ibid leaves it to the discretion of disciplinary authority to decide whether an inquiry should be held or not. The implication of this rule is that on receipt or representation of Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could, after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice.
[OM No. 11012/18/85-Estt.(A) dated 28.10.1985]
11. Need for issuing speaking orders by competent Authority in disciplinary cases:
11.1 As is well known and settled by courts, disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under their corresponding rules, are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as disciplinary/appellate/reviewing authorities under the relevant rules and the orders issued by such authorities should have the attributes of a judicial order. The Supreme Court, in the case of Mahavir Prasad Vs State of U.P.( AIR 1970 SC 1302) observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy, or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.
[Para 1 of the OM No. 134/1/81-AVD-I dated 13.07.1981]
11.2 Where the final orders passed by the competent disciplinary/appellate authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached, such orders may not conform to legal requirements, and therefore they may be liable to be held invalid, if challenged in a court of law. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self-contained speaking and reasoned orders conforming to the aforesaid legal requirements.
[Para 2 of the OM No. 134/1/81-AVD-I dated 13.07.1981]
11.3 Instances have also come to notice where, though the decisions in disciplinary/appellate cases were taken by the competent disciplinary/appellate authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the disciplinary/appellate/reviewing authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is, therefore, essential that the decision taken by such authorities are communicated by the competent authority under their own signatures, and the order so issued should comply with the legal requirements as indicated in the preceding paragraphs. It is only in these cases where the President is the prescribed disciplinary/appellate/reviewing authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorised to authenticate orders in the name of the President.
[Para 3 of the OM No. 134/1/81-AVD-I dated 13.07.1981]
12. Where disciplinary proceedings are initiated against a Government servant who is officiating in a higher post on an ad-hoc basis
The question whether a Government servant appointed to a higher post on ad hoc basis should be allowed to continue in the ad hoc appointment when a disciplinary proceeding is initiated against him has been considered by this Department and it has been decided that the procedure outlined below shall be followed in such cases:-
(i) Where an appointment has been made purely on ad hoc basis against a short- term, vacancy or a leave vacancy or if the Government servant appointed to officiate until further orders in any other circumstances has held the appointment for a period less than one year, the Government servant shall be reverted to the post held by him substantively or on a regular basis, when a disciplinary proceeding is initiated against him.
(ii) Where the appointment was required to be made on ad hoc basis purely for administrative reasons (other than against a short term vacancy or a leave vacancy) and the Government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him.
Appropriate action in such cases will be taken depending on the outcome of the disciplinary case.
[OM No. 11012/9/86-Estt.(A) dated 24.12.1986]
13 Disciplinary action for acts done by the Government servants in their previous or earlier employment:
An employee is not precluded from taking action against an employee in respect of misconduct committed before his employment if the misconduct was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service. A provision in the Discipline Rules that penalties can be imposed for ‘good and sufficient reasons’, as in rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, would be adequate authority for taking action in respect of misconduct of the nature referred to above. When such action is taken, the charge should specifically state that it renders him unfit and unsuitable for continuance in service.
[OM No. 39/1/67-Ests(A) dated 21.02.1967]
14. Consideration of past bad record for the purpose of imposition of penalty in disciplinary proceedings:
14.1 If previous bad record, punishment etc. of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the chargesheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the chargesheet, would vitiate the proceedings, and so should be eschewed.
[Para 1 of the OM No. 134/20/68-AVD dated 28.08.1968]
14.2 In this connection attention is invited to the following extract from the judgement of the Supreme Court in the State of Mysore Vs. K. Monche Gowda (AIR 1964 SC 506):-
“We……hold that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation…
In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the country, the said notice put him on the wrong scent, for it told him that it proposed to dismiss him from service as the charges proved against him were grave… indicate that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311(2) of the Constitution as interpreted by Court.”
[Para 2 of the OM No. 134/20/68-AVD dated 28.08.1968]
14.3 These observations were made by the Supreme Court in the context of the provisions of Article 311(2) of the constitution before its amendment by the Constitution (Fifteenth Amendment) Act, 1963. Under the amended Article, at the stage of show cause notice the Government servant has to be given a ‘reasonable opportunity’ of making representation on the penalty proposed, but only on the basis of evidence adduced during the enquiry. This would indicate that at the second stage, the procedure should be limited only to the proposed penalty on the basis of the proved charges and additional material in the form of past bad record etc. cannot be introduced. If such matter is to be introduced, the Government servant must have a right to make his representation on those matters and for that purpose to call for confidential record and even witnesses to establish mitigating circumstances like his subsequent good conduct. This will be contrary to amended Article 311(2) which clearly limits the right of representation “only on the basis of evidence adduced during such enquiry”. This cannot be one-sided restriction and pre-supposes that the penalty is proposed only on the basis of the charges inquired into, without any additional factors being taken into consideration. Accordingly if past bad record is proposed to be taken into account in determining the penalty to be imposed, it should be made subject matter of a specific charge in the charge-sheet itself. If it is not so done, it cannot be relied upon after the disciplinary authorities, and/or at the time of imposition of penalty.
[Para 3 of the OM No. 134/20/68-AVD dated 28.08.1968]
COMMENTS