1. HOW TO CONDUCT A
DEPARTMENTAL
INQUIRY
Shankar Bose
Inspector of Income-tax
MSTU, Puri
2. Organisation of the Presentation
• Examination of complaints
• Preliminary Enquiry/Investigation
• Drafting and issue of charge-sheet Memo.
• Minor penalty proceedings
• Major penalty proceedings
• Inquiry proceedings
• Consultation with CVC/UPSC
• Order imposing penalty or exonerating the CO
under the CCS (CCA) Rules, 1965
• Departmental proceedings under the Pension Rules
3. EXAMINATION OF
COMPLAINTS
Sources of complaint :-
(1) A colleague or jealous/inimical colleague or
acquaintance or any other person,
(2) Complaint received through M.P./MLA,
(3) Complaint received through CVC or CBI,
(4) Acts of omission and/or commission on the part of the
Govt. servant concerned referred to Vig./Disc. Cell by
by Estt./Admn. Branch. For example, irregularities in
LTC/TA claim, submission of false caste certificate,
penalty imposed by Chief Information Commissioner,
report of arrest of a Govt. servant in a criminal case
or his conviction by a court of law, etc.
4. (Contd.)
Sources of complaint :-
(4) Complaint of sexual harassment
(5) Complaint of discrimination, etc. by a member
of SC/ST category.
(6) Acts of omission and/or commission reported in
an Audit Report,
(7) Anonymous/pseudonymous complaint, etc.
5. (Contd.)
• No cognizance to be taken of
anonymous/pseudonymous
complaints – CVC’s instructions
• Identification of acts of
misconduct/ lapses alleged in the
complaint
6. PRELIMINARY
ENQUIRY/INVESTIGATION
• Departmental investigation by Vigilance Section or
Disc. Section or by an officer to be designated for the
purpose
• Reference to an outside agency for investigation
such as the CBI, police, etc.
• Consideration of the issue of suspension of the
employee in case of acts of moral turpitude, financial
scandal, criminal offence, etc.
7. (Contd.)
To avoid unnecessary harassment to the officials,
against whom frivolous complaints are received at
the time of their promotion/selection, the CVC, vide
its circular dated 31.8.2004 addressed to the CVOs
of all PSUs/PSBs, has decided that:
(a) As a rule, complaints/cases which are more than 5 years old
and no action has been taken till then, should not be
investigated. However, the limit of 5 years will not apply to
cases of fraud and other criminal offences; and
(b) No cognizance should be taken of any complaint which is
received 6 months prior to the initiation of selection process for
senior posts.
8. Drafting and issue of
charge-sheet Memo.
• CVC to be consulted wherever necessary for
their 1st stage advice
• Charges to be definite and specific, and not
general, vague or non-specific
• Format for minor or major penalty
proceedings is given in the CCS (CCA)
Rules, 1965
• An act reflecting on integrity will normally
warrant major penalty proceedings.
9. (from pre-page)
• Articles of Charge, Statements of Imputations of
Misconduct, List of Documents and List of Witnesses
to be drawn up carefully for major penalty action.
• Minor penalty charge-sheet Memo. to be issued with
Statement of Imputations of Misconduct only.
• Original documents to be collected as evidence as far
as possible and kept safely in Vig./Disc. Cell.
• Charge-sheet Memo. to be signed by the competent
disciplinary authority himself/herself or by an
authorized officer under the rules/regulations where
the President/Central Government is the Disciplinary
Authority
10. (Contd.)
WARNING, REPRIMAND,
ADVISORY, ETC.
Two types of warnings:-
(1)Non-recordable – A copy of it is not
placed in the ACR dossier.
(3)Recordable – A copy of it is placed in
the ACR dossier.
11. (Contd.)
VIGILANCE
CLEARANCE
The Government have issued revised
guidelines for issuing vigilance clearance,
vide Department of Personnel and Training’s
O.M. dated 14.12.2007 (copy is available
under the heading, “Conduct/Discipline
Rules” on the website, dtf.in.
12. (Contd.)
Penalties enumerated in Rule 11
Minor Penalties:-
(i) Censure; (ii) Withholding of promotion; (iii)
recovery from pay of the whole or part of any
pecuniary loss caused by him to the Government by
negligence or breach of orders; (iii a) Reduction to a
lower stage in the time scale of pay by one stage for
a period of not exceeding three years, without
cumulative effect and not adversely affecting the
pension; (iv) Withholding of increments of pay.
13. (Contd.)
Major Penalties:-
(v) Same as provided for in clause (iii) (a), lower stage in the time
scale of pay for a specific period, with further directions as to
whether or not the Government servant will earn increments of
pay during the period of such reduction and whether on the
expiry of such period, the reduction will or will not have the effect
of postponing the future increments of pay;
(vi) Reduction to lower time-scale of pay, grade, post of service
which shall ordinarily be a bar to the promotion of the
Government servant to the time-scale of pay, grade, post or
service from which he was reduced, with or without further
directions regarding conditions of restoration to the grade, or post
or service from the Government servant was reduced and his
seniority and pay on such restoration to that grade, post or
service;
15. Rule 16 – Minor penalty
proceedings
• Copies of the documents to be provided
to the charged official on request for
preparing his/her reply/statement of
defence
• Provision for holding full-fledged inquiry
under Rule 16 of the CCS (CCA) Rules
• Speaking Order to be passed by the
competent disciplinary authority
16. Rule 14 – Major penalty
proceedings
• Copies of the listed documents to be
provided to the charged officer for preparing
his/her reply/written statement of defence.
• Repeated requests for extension of time for
submitting reply may not be considered.
• Issue of common proceedings or
simultaneous proceedings is also to be
considered.
• On denial of charges, Inquiry Officer and
Presenting Officer are to be appointed.
17. Inquiry proceedings
(Preliminary Hearing)
- Admission/denial of charges by the CO before the IO.
Upon denial, regular oral inquiry will be conducted by
the IO.
- The CO to be provided an opportunity to engage a
Defence Assistant to assist him in the inquiry.
- IO will fix date and time for inspection of the listed
documents, normally in the office of the PO. IO will
give opportunity to the CO to submit a list of
additional documents and a list of defence
witnesses, indicating relevancy to the charges.
- After completion of inspection of documents, all the
prosecution and defence documents will be taken on
record by the Inquiry Officer and each document will
be assigned an Exhibit No.
19. Regular Hearings (RHs)
• Recording of daily order sheet by the IO
• Recording of evidence –Depositions of
witnesses
-- Examination-in-Chief
-- Cross-examination
-- Re-examination
-- Further cross-examination
-- Further re-examination
-- Questions, if any, by the IO
-- Questions – simple and leading
-- Copies of depositions to be provided to CO/PO
20. (Contd.)
* Submission of Statement of Defence by the CO on
conclusion of the prosecution case
* Defence to adduce evidence on its behalf by way of
examination of defence witnesses and documents
* After examination of all witnesses, the IO will give
opportunity to the CO to appear as a witness in his own
case or his/her general examination would be conduced by
the IO. (no cross-examination by IO).
* Questions by IO to the CO as witness.
* IO will direct the PO/CO to submit Briefs within such time as
may be specified by him
* Thereafter, IO will write his report and submit it to the
Disciplinary Authority.
21. (Contd.)
• PO’s Brief
• Defence Brief
• Inquiry Officer’s Report
- Background, details about hearings, witnesses, etc.,
- Prosecution case
- Defence case
- Analysis of evidence
- Findings
22. CONSULTATION WITH THE
CVC/UPSC
Obtaining the advice of CVC
• First Stage – before issuing charge-sheet
Memo.
Second Stage – after IO’s Report is
available
• Reference can be made for reconsideration
of CVC’s advice, in suitable cases.
UPSC to be consulted before imposition of
penalty, wherever necessary.
23. • EX PARTE INQUIRY
• REASONABLE OPPORTUNITY
• NATURAL JUSTICE
• BURDEN OF PROOF
24. Order imposing penalty or
exonerating the CO
• The Disciplinary Authority would consider the
nature of charges, facts and circumstances
of the case, evidence on record, Brief of PO
and submissions of the CO with regard to
findings of the IO.
• The penalty has to be commensurate with
the gravity of the misconduct. The CO to be
exonerated, if charges are held not proved.
• A speaking order imposing the penalty to be
issued under the signatures of the
Disciplinary Authority
25. DOPT’s O.M. dated 1.8.2007 – Simultaneous
action of prosecution and initiation of
departmental proceedings
• In serious cases involving
offences such as
bribery/corruption, etc., action
should be launched for
prosecution as a matter of
course.
Disciplinary proceedings – the question is
whether the respondent is guilty of such
conduct as would merit his removal from
service or a lesser punishment, as the case
may be.
Criminal proceedings – the question is
26. (Contd.)
• In serious nature of cases like
acceptance of illegal gratification, the
desirability of continuing the
concerned Govt. servant in service in
spite of the serious charges levelled
against him may have to be
considered by the Competent Authority
to proceed with departmental action.
• If the charge in the criminal case is of
a grave nature which involves
complicated questions of law and fact,
it would be desirable to stay the
27. (Contd.)
proceedings till the conclusion of the
criminal case. If the criminal case does not
proceed and its disposal is being unduly
delayed, the departmental proceedings, even
if they were kept pending on account of the
pendency of the criminal case, can be
resumed and proceeded with so as to
conclude them at an early date, so that if the
employee is found not guilty, his honour may
be vindicated and in case he is found guilty,
the administration may get rid of him at the
earliest, if the case so warrants.
28. (Contd.)
• Quoting the Apex Court’s judgment,
DOPT has clarified that stay of
disciplinary proceedings is not a must
in every case, where there is a
criminal trial on the very same charges
and the concerned authority may
decide on proceeding with the
departmental proceedings after taking
into consideration the facts and
circumstances of each case and the
guidelines given by the Hon’ble
Supreme Court.
29. Departmental proceedings
under the Pension Rules
• Rule 8 – Pension subject to future
good conduct
• Rule 9 – (i) Event or transaction
within 4 years before the
institution of departmental
proceedings will attract action
under the Pension Rules;
(ii) Sanction of the President
necessary for proceedings under
the Pension Rules
Editor's Notes
(1) If the complaint is forwarded by the CVC for necessary action. The Department can take necessary action and close it, if the allegations are not substantiated. If disciplinary action is required to be taken on vigilance charges, then consultation with CVC is necessary. In some cases, the CVC would ask for examination and report. In such a case, a report along with the preliminary enquiry/investigation report is to be submitted to the CVC for favour of their advice. In some cases, the CBI does not investigate the complaint, but forwards the complaint to the Department, along with a brief note. If on examination it is found that it calls for disciplinary action on vigilance charges, consultation with the CVC would be necessary. (2) I had dealt with a case where a lady belonging to general category had got appointed as LDC by submitting a false SC certificate. In course of time, she rose to the level of Assistant with the benefits of reservation. Eventually, she was caught and was charge-sheeted. The disciplinary proceedings ended in her dismissal from service. Particularly in some Southern States, it was learnt that the cases of false caste certificates were being referred to the Distt. Committees, where the cases remained pending for considerable periods. Another aspect to be taken care of is that some castes or tribes are de-notified and some castes or tribes are included in the list of reserved categories, from time to time. So, we must find out the status of the castes or the tribes of the employees at the time of recruitment as well as promotion. (3) We have not come across the actual cases where disciplinary action has been taken on the basis of imposition of fine/penalty by the CIC under the RTI Act. The common sense would dictate that the nature of disciplinary action in such a case would depend on the seriousness of the default on the part of the PIO/Officer in the organisation concerned. In case a report is received regarding arrest/conviction of the Government servant, a file will be opened and appropriate action would be taken. (5) COMPLAINTS FORWARDED BY THE ADMINISTRATIVE MINISTRY TO ITS PSU OR SUBORDINATE ORGANISATION :- As per the CVC’s circular dated 29.4.2005, the complaints against officials who within the purview of the Commission, can be closed only with the approval of the Commission. In all such cases where complaints are forwarded by the administrative Ministry to its PSUs and subordinate organistions, CVOs are required to endorse a copy of the Report being sent to the Ministry, to the Commission also and such complaints will be closed only with the approval of the Commission.
(Continued from above) (6) In regard to the complaint of sexual harassment, the lady employee should make a complaint with relevant details as soon as possible. The mention of time, date and location of the incident is a must. It is mandatory for the Department/organisation that such a complaint is referred to the Complaints Committee for enquiry. In terms of the proviso to Rule 14 (2) of the CCS (CCA) Rules, 1965, the Complaints Committee shall be deemed to be the inquiring authority for the purpose of the rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints for holding the inquiry into such complaints, the inquiry as far as practicable in accordance with the procedure laid down in these rules. (7) Discrimination against the SC/ST employees would be a criminal offence. It was heard that in a public sector organisation, a complaint against the CMD was made to the police by the office bearers of an SC/ST Employees’ Welfare Association to the effect that an appointment was not being given to them, because they belonged to the deprived class. The police initiated action on the complaint. The action was presumably dropped after the complaint was withdrawn. (8) In a case, the Audit reported that a judicial officer working under the Ministry of Finance had claimed house rent allowance (HRA) while residing in a rent-free accommodation for about 4 years. A show cause notice was issued to him under the relevant Act. In response, he deposited a sum of more than Rs.4 lakhs towards rent of the accommodation provided to him. Likewise, there may be several disciplinary cases based on the Audit Reports. (9) An anonymous complaint is normally unsigned and without any address of the complainant. A pseudonymous complaint is the one sent in the name of someone else, i.e. the signatory is not genuine.
In their circular dated 11.10.2002, the CVC has reiterated its instructions that no action is to be taken by the departments/organisations, as a general rule, on anonymous/pseudonymous complaints received by them. However, if any department/organisation proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the Commission, seeking its concurrence through the CVO or the head of the organisation, irrespective of the level of employees involved therein . In a case, a Section Officer was charged that he was not present in his seat at 5 P.M. on 2 consecutive dates. In the opinion of most of us, absence of ½ an hour from the Section of a Department is too trivial for the purpose of initiating major penalty action. Yet, from the administrative angle, such absence is serious enough to warrant major penalty proceedings. In that particular case, the charges could not be established in the inquiry and eventually, the case was dropped. In another case, cash withdrawals were made, when sufficient cash was available with the Cashier, it was made a major penalty charge. Delays in disposal of cases is made a major or minor penalty charge when the Disciplinary Authority so decides. Therefore, in practice, It is for the senior officers or Administration to decide as to which violation of instructions or procedure it to be taken cognisance of for the purpose of disciplinary action against the employee. In a particular case, the Department would issue charge-sheet to an employee for a minor mistake, while in other cases, more serious acts of the same nature may come to be ignored. Another example is the charge of unauthorised absence from duty. If the Department decides to regularise the absence on the part of an employee, no disciplinary action would be taken. On the other hand, if the Department does not regularise the period of absence by grant of leave, it may initiate administrative or disciplinary action against the employee. “Dies Non” and “Break in Service” would be administrative actions.
It is observed that in some cases, the preliminary enquiry is conducted by the CVO himself or it is entrusted to an officer of the Department or organisation. The officer so nominated is given a time frame for submitting his report. In such investigation, relevant documents are collected and scrutinized and statements of the witnesses would also be recorded, wherever required. Under the rules, suspension is an administrative action, and not a part of the disciplinary action. Suspension of an employee is considered in the cases of moral turpitude, financial scandal, etc. Under Government instructions, suspension is to be reviewed by a Committee after every three months. Extension of suspension shall not be for a period exceeding 180 days . The departmental Preliminary Enquiry Report will identify the delinquent officials and the allegations/lapses on their part, to enable the concerned Disciplinary Authority to initiate disciplinary action by issuing charge-sheet Memo. It is not mandatory on the part of the Department to issue a show cause notice to the concerned official so as to give him/her an opportunity to explain or give his version. CBI INVESTIGATION :- The CBI will register either a PE or an RC. An RC can lead to prosecution. A PE case will lead to departmental action. If, while investigating, the CBI feels that the PE case is fit for conversion into RC, it would do so. In some cases, they advise transfer of the official from the post held by him, pending investigation.
The period, date, time and place of the event must be mentioned in each Article of Charge. If there was any witness to the event, his or her name must be given. The charge should be related to the role of the CO. If the lapse is committed by an employee, his/her boss can not normally be charged for that lapse. The subordinate official would be charged for recommending a particular line of action, which led to financial loss to the organisation or was prejudicial to the interests of the Department/organisation. In such a case, it may be considered whether the boss can be charged for supervisory negligence or for not discharging overall responsibility.
The Report of Preliminary Enquiry/Investigation is not to be referred to in the articles of charge or the statement of imputations of misconduct/misbehaviour. If mentioned, a copy thereof will have to be provided to the CO, if he requests for it. Recently, in a case where the preliminary enquiry report of the CVO had to be supplied to the charged officer, the CVO was grilled for 3 ½ hours by the Defence Assistant on the basis of the illogical conclusions and observations contained in the CVO’s vigilance enquiry reports. I have come across a few cases departmentally handled, where the lists of witnesses did not contain any names. In every case, there will be witnesses and the Department must include the names of at least a few persons as prosecution witnesses in Annex-IV to the charge-sheet Memo. In another case, one of the Articles of Charge was framed on the basis of the statement of a Driver, recorded by the CVO during his investigation, but the Driver was not cited as a prosecution witness. In such a case, the statement of the Driver recorded during PE/Investigation lost its evidentiary value, because he was not produced as a witness to confirm the contents of his statement. In a case, photo copy of a document was produced by the CO, while the original was stated to be not available, when requisitioned by the CO for his defence. The situation was not desirable. Therefore, it is the duty of the Vigilance/Disc. Section to ensure that all the relevant documents/files pertaining to a disciplinary case are kept safety and securely. In a recent case of common proceedings, major penalty charge-sheet Memo. issued to a General Manager of a public sector undertaking, was signed by the Joint Secretary and CVO of the concerned Ministry, without realising that the President had no locus standi, because the CMD of the undertaking was the competent appointing and disciplinary authority under the rules. On being pointed out by the charge officer, the charge-sheet Memo. had to be withdrawn and a fresh charge-sheet Memo. duly signed by the CMD had to be issued. In CBI cases, draft charge-sheet Memo. is forwarded by the CBI, along with their report, to the concerned Department or organisation. In such cases, normally no modification of Articles of Charge or Imputations of Misconduct/Misbehaviour is considered by the Department or organisation. If any modification of charge is required to be made in a case, concurrence of the CBI would be necessary. Besides, consultation with the Central Vigilance Commission for their first stage advice before issue of charge-sheet Memo. is necessary in respect of the officers within their purview.
Warning is an administrative action, and is not a part of disciplinary action. For issuing recordable warning, it is necessary to issue a Memo. to the official concerned, seeking his explanation for the lapse/s committed by him/her. Recordable warning is almost as bad in effect as the recognised penalty of ‘Censure’. Issue of a recordable warning can be regarded as a ‘short-cut’ action vis-à-vis the disciplinary proceedings. While it can be said to save time, it would be advisable to take such action only in cases where it is considered that the proceedings, if initiated, may not result in a penalty higher than censure.
Under Govt. instructions, warning can not be given as a result of disciplinary proceedings. If, on conclusion of the proceedings, it is felt that the Government servant is not free from the blame, the recognised penalty of “censure” may be awarded. Withholding of promotion may be considered, when the official is likely to get promotion in the near future. If the promotion is not in sight for in the next few years, such a penalty would be meaningless. For the penalty of withholding of increments, the period of penalty would need to be specified. It would also be stated clearly whether the penalty would or would not have the effect of postponing the future increments. If the Govt. servant is going to reach the maximum of the pay-scale in the near future, such a penalty may be ineffective.
If the Govt. servant was appointed to an ex-cadre post and is holding the same post, it would not be possible to consider imposition of the penalty of reduction to the lower post in his case. An example of incumbents of such posts would be the Caretaker appointed in the pay-scale of LDC as a direct recruit.
Compulsory retirement is termination of service with all financial benefits, i.e. pension and other retirement dues. Nevetheless, the stigma of punishment would be there. Removal and Dismissal from service entail forfeiture of service. No pension, no gratuity, and no leave encashment.
Oral inquiries can be held in cases where the charges are based largely on oral evidence. Examples are abusing or physically assaulting a colleague. Drafting of penalty order in minor penalty cases is relatively more difficult, in that the competent authority is required to give his/her views on all the significant issues raised in the representation of the CO, because a speaking order is required to be issued by the disciplinary authority. In the case of major penalty proceedings, these is no need to dispose of the issues raised by the CO, because all such issues are already dealt with during the oral inquiry and the Disciplinary Authority encloses a copy of the Inquiry Report with his/her order.
The CO’s request for supply of copies of documents should be considered from the view point of defence and invariably be acceded to, to the extent possible. In some cases, orders appointing IO and PO are issued along with the charge-sheet Memo. or immediately thereafter, without waiting for the statement of defence/reply of the CO to the charge-sheet Memo. This is wrong and not in accordance with the laid down procedure as well the norms of natural justice. In some cases, common proceedings are ordered without due consideration. In one case, it was recently decided to issue charge-sheets by the highest of the disciplinary authorities in respect of 3 COs for holding a common proceeding. In the process, the mistake of signing of the charge-sheet in respect of an officer of a public sector undertaking by the Joint Secretary & CVO was committed. The experience shows that simultaneous proceedings are more desirable in place of common proceedings, because in simultaneous proceedings, the co-accused will be produced as a witness by the prosecution or the CO and thus the CO will have an opportunity to examine him/her in the inquiry. In vigilance cases, the CVC may nominate one of their Commissioners for Departmental Inquiries for being appointed as the Inquiry Officer/Inquiring Authority or advise the Department to appoint its own Officer as the Inquiry Officer. In CBI cases, the CBI may nominate one of their Officers for being appointed as Presenting Officer or advise the Department to appoint its own Officer as the Presenting Officer.
Conditional admission of the charges is not to be accepted. Under Central Government rules, another Government servant or a retired Government servant can be appointed as Defence Assistant. The provisions as to who can be appointed as Defence Assistant or Assisting Officer may vary in the rules of different public sector undertakings, including Banks. The IO will allow additional/defence documents and defence witnesses after due consideration of the relevancy of each document/witness as furnished by the CO. After inspection of the permitted defence documents, copies thereof would be supplied to the CO. Copies of the statements of the prosecution witnesses, if recorded during investigation, will have to be provided to the CO. The IO may not take on record the statement of a person, who is not included in the list of prosecution witnesses.
What is a simple question? What is a leading question? The prosecution case will be taken up first. The prosecution witnesses will be examined by the PO and thereafter they will be cross-examined by the Defence Assistant on behalf of the CO. During examination of a prosecution witness (PW), the PO is entitled to ask only simple questions. After the prosecution case is over, the defence witnesses will be examined by the DA by asking simple questions and then they will be cross-examined by the PO. The Inquiry Officer can also ask questions, but he should not cross-examine any witness. A leading question is a question which puts words in the mouth of the witness. That is, if the answer to a question is either yes or no, it would be termed as a leading question. Copies of the depositions of witnesses, recording during a hearing, would be provided to the PO, CO and DA. On conclusion of the proceedings on each day of hearing, a copy of the daily order sheet, recorded by the IO, would normally be provided to the PO and CO/DA. The witnesses, who have appeared in the inquiry and have to claim TA/DA from the Department, will be issued an attendance certificate by the IO.
When examination of all the prosecution cases is over, it means that the prosecution case is over. At that stage, the CO is required to submit a Statement of Defence stating whether he/she admits or denies the charges levelled against him/her. After examination of all the defence witnesses, the CO can, if he so desires, appear as a witness in his/her own case. As a witness, he/she would be examined by the DA and cross-examined by the PO. If the CO chooses not to appear as a witness in his/her own case, his/her general examination would be conducted by the IO. In general examination of the CO, the IO may ask him/her a few general questions – generally one or two –related to the charges. On conclusion of the inquiry, the IO may normally grant 10 days’ time or more to the PO to submit his brief, with a copy to the CO. Same period will be allowed to the CO for submission of his/her defence brief to the IO. Thereafter, IO will write his report and submit it to the Disciplinary Authority.
In writing his report, the IO would take into consideration the facts and circumstances of the case, documentary and oral evidence on record and any other relevant factor. The evidence adduced during the inquiry would be analysed objectively and dispassionately, in a way that his findings would naturally and logically emerge from his analysis. His/her findings in respect of each Article of Charge would be: “Proved” or “Unproved” or “Partly Proved”.
The Disciplinary Authority may agree or disagree with the findings of the IO. In case of disagreement, the points of disagreement, along with the IO’s Report, will be provided to the CO, to give him/her an opportunity to make a representation, if any. On the basis of the IO’s report and the representation, if any, of the CO in response to the disagreement Memo. (if issued), the Department will take a provisional decision in the case. After consultation with the CVC for their second stage advice, a final decision in the case will be taken by the Disciplinary Authority. If the CO is a Central Government Officee, the UPSC will be consulted, wherever necessary, before passing the final order.
Ex parte inquiry :- The IO may conduct ex parte inquiry, if the charged official does not participate in the inquiry in spite of a number of notices sent to him. In the case where the charged official is absconding and can not be contacted, a notice will be published in the newspapers. Reasonable opportunity is to be afforded to the CO to defend himself at every stage :- If the procedure laid down in Rule 14 is followed, it means that the reasonable opportunities including the opportunities for engaging a defence assistant, producing evidence in defence, inspection of documents, to appear as a witness in his own case, and for submitting representation in respect of the disagreement Memo., if any, have been provided to the CO. Natural justice :- The CO can not be held guilty without being heard. If the reasonable opportunity as per the prescribed procedure is provided to the CO in the inquiry, it means natural justice has been granted. What natural justice demands would depend on the prevailing circumstances. If the CO makes a reasonable request to recall a particular witness for further examination, it should be acceded to by the IO on merits. Such request from the PO would also be considered on merits. The PO has to endorse copies of all his applications made to the IO, to the CO. Similarly, whatever written applications/submissions are made by the CO to the IO, a copy each of such applications/submissions has to be provided to the PO. The findings of the IO and that of the Disciplinary Authority should be reasonable and logical. Burden of proof :- The rules of evidence as contained in the Evidence Act are not strictly applicable in departmental inquiries. The words, ‘burden of proof’ are a technical expression used in the Evidence Act. In departmental proceedings, the burden of proof lies on the Department or management, and not on the CO. In some situations, the onus of proof gets shifted to the CO. In a charge of theft, it was not the defence of the employee concerned that the cloth did not belong to him and on the other hand, the defence was that the cloth was brought by the watchman who said that it was stolen by him. This shows that the ownership was not claimed by the employee and, therefore, it was not necessary for the management to prove the ownership of the cloth. (Kesavlal Punjlal v. Vijay Mills, 1958 ICR 361) When the employee holds some money or goods on behalf of the employer and the money or the goods are not available, then it is for the employee to show how the goods have been disposed of and it is not for the employer to show how the goods have been disposed of. If, in a surprise check, the available cash is found short, it is for the cashier to show how it was short. Preponderance of probabilities :- The standard of proof required in departmental proceedings is preponderance of probabilities, and not standard of proof beyond reasonable doubt. Reasonable inferences are to be drawn from proved facts. For instance, when Mr. A was called by his boss, he left his mobile phone on his office table. On his return after 5 minutes, the mobile phone was found missing. On enquiry it was found that one Mr. Lal had entered his room when Mr. A was away. Nobody else had entered the room. It would be a reasonable inference that the mobile phone was taken away by Mr. Lal. The criterion is: How a person with a reasonable mind infers from the proved facts would be a reasonable inference.
Taking into consideration the facts and circumstances of the case, gravity of the charges, evidence on record and all other relevant factors, the disciplinary authority will take a decision as to the penalty to the imposed on the charged officer. The penalty should be commensurate with the gravity of the charges. No extraneous factors should be taken into account for this purpose. Likewise, personal knowledge should not be used in taking the decision in the disciplinary proceedings, since such proceedings are quasi-judicial in nature.
As per Rule 8 of the CCS (Pension) Rules, 1972, pension is granted subject to future good conduct of the Government servant. The disciplinary proceedings instituted under major penalty rule before retirement, will be deemed to have been continued after retirement under Rule 9 of the CCS (Pension) Rules. After retirement, departmental proceedings against a Govt. servant can be instituted with the approval of the President. Departmental action is permissible in respect of events/allegations that are not more than 4 years old from the date of issue of charge-sheet Memo. The case involving more than 4 years old allegation would become time-barred under the CCS (Pension) Rules, 1972. If the charges are proved in the inquiry, the competent authority has the power to impose the penalty of cut in the amount of pension, partly or completely. In the case of departmental proceedings in a vigilance case, the CVC would be consulted. Besides, in the cases involving Central Government pensioners, the UPSC will also be consulted.
