Transcript DISCIPLINARY PROCEEDINGS

HOW TO CONDUCT A
DEPARTMENTAL INQUIRY
By R.K. Sharma,
Dy. Secretary (Retd.), GOI
E-mails: [email protected]
Organisation of the Presentation
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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
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.
(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.
(Contd.)
• No cognizance to be taken of
anonymous/pseudonymous complaints
– CVC’s instructions
• Identification of acts of misconduct/
lapses alleged in the complaint
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.
(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.
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.
(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
(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.
(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.
(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.
(Contd.)
Major Penalties:(v) Save 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;
(Contd.)
(vii) Compulsory retirement;
(viii) Removal from service; and,
(ix) Dismissal from service.
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
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.
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.
(Contd.)
Specimen of document taken on record
Ex.P.1
Signature of IO with date
Ex.D.1
Signature of IO with date
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
(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.
(Contd.)
• PO’s Brief
• Defence Brief
• Inquiry Officer’s Report
- Background, details about hearings, witnesses, etc.,
- Prosecution case
- Defence case
- Analysis of evidence
- Findings
CONSULTATION WITH THE
CVC/UPSC
l 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.
• EX PARTE INQUIRY
• REASONABLE OPPORTUNITY
• NATURAL JUSTICE
• BURDEN OF PROOF
• PREPONDERANCE OF PROBABILITIES
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
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 whether the
offences registered against the Govt. servant are
established and if established, what sentence can be
imposed on him.
(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 departmental .. .. ..
(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.
(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.
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