Disciplinary proceedings

Disciplinary proceedings A recap

Deemed Suspension • (i) detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours, under suspension with effect from the date of detention.

Deemed Suspension • When a Government Servant is convicted for more than 48 hours, • When the major penalty imposed is set aside and the case is remitted for further inquiry by appellate authority, the order of suspension is deemed to have continued w.e.f. the date of original order of major penalty.

Deemed Suspension • Where a major penalty imposed is set aside or declared or rendered void by a decision of a Court of Law on technical grounds and the appointing/disciplinary authority, decides to hold a further inquiry on the basis of fresh materials which were not placed before the court , the Government servant shall be deemed to have been placed under suspension by the appointing authority from the date of the original order of major penalty imposed.

Responsibility of the official to intimate arrest • While the police should send prompt report on the arrest of the government servant, it is the duty of the Government servant to intimate about his being arrested with the particulars of the case. • If he does not intimate, non-intimation itself will be a case for disciplinary action.

HEADQUARTERS DURING SUSPENSION • HQswouldbe his last place of duty. If he seeks change of HQ, it may be considered if the change does not involve extra expenditure and difficulty in investigation.

Modification and Revocation • An order of suspension made or deemed to have been made may be modified or revoked at any time by the authority that made the order.

Appeal against suspension • The suspended official has a right to make an appeal under Rule 22 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965. • To make the appeal, the suspended official should be furnished with the reason for suspension. • He should be served with the charge sheet within three months. • If charge sheet could not be served within three months, the reason should be informed to him in writing.

Appeal against suspension • The date of furnishing of information would be the crucial date for determining the period of appeal viz. 45 days within which he should make appeal against the suspension.

Action on the appeal against suspension • On receipt of appeal, the appellate authority shall consider in the light of the provisions of Rule 10 and having regard to the circumstances of the case, whether the order of suspension is justified or not; and confirm or revoke the order accordingly.

DURATION OF ORDER OF SUSPENSION • When major penalty is imposed, the order of suspension will cease to exist automatically from the date from which the order takes effect.

Date of effect of suspension • Except in cases in which a Government servant is deemed to have been placed under suspension , an order of suspension can take effect only from the date on which it is made.

Date of effect of suspension • In such cases, the competent authority may direct that the order of suspension will take effect from the date of its communication to the Government servant concerned.

Date of effect of suspension when the official is on leave • An officer who is on leave, or who is absent from duty without permission, may be placed under suspension with immediate effect. • When a Government servant is placed under suspension while he is on leave, the unutilized portion of the leave should be cancelled by an order to that effect.

No retrospective effect for suspension • No order of suspension should be made with retrospective effect except in the case of deemed suspension.

REVOCATION OF SUSPENSION ORDER • An order of suspension should be revoked when no charge sheet is to be issued or he is exonerated of the charges or no major penalty was imposed.

REVOCATION OF SUSPENSION ORDER • Ii) the investigation does not show prima facie case or he is acquitted by the court of law and it is decided that no departmental proceeding is to be initiated.

Revocation of suspension • If suspension had been ordered on detention in police custody and if the police had released him without any case is being lodged in the court, the suspension should be revoked with effect from the date of detention.

Revocation of suspension • If the court case filed against the Government servant ends in acquittal and if appeal is filed, the case should be considered whether the suspension should be continued. • If not, the order of suspension should be revoked immediately.

CONTINUED SUSPENSION • If investigation is likely to take more time, it should be examined whether the suspension of the official is to be continued or revoked and if it is to be revoked the official could be posted to the same post or transferred to another post.

Review of suspension cases • A review has to be undertaken to see: • (i) whether the period of suspension is prolonged for reasons directly attributable to the government servant; • (ii) what steps could be taken to expedite the progress of the court trial/departmental proceedings;

Review of suspension cases • (iii) whether the continued suspension is needed on the circumstances of the case. • (iv) whether having regard to the guidelines for suspending an official, whether the suspension may be revoked and the Government servant concerned permitted to resume duty at the same station or at a different station.

Treatment of period on revocation • When the order of suspension is revoked pending finalization of Departmental/Court proceedings, the order on the arrears of pay and the treatment of the period of suspension would be made only after conclusion of the pending case.

Acceptance of resignation during suspension • If a suspended official presents resignation, it should not normally be accepted. • If the acceptance of resignation is considered necessary, it may be accepted with approval of Head of the Department in the case of Group ‘C ‘and ‘D’ and that of Minister in charge in r/o of Group ‘ A’ and ‘B’ under the certain conditions.

CONDITIONS FOR ACCEPTANCE OF RESIGNATION DURING SUSPENSION • (i) Where the alleged offences do not involve moral turpitude; or • (ii) Where the evidence is not strong that if the departmental proceedings were continued, the officer would not be removed or dismissed from service; or

CONDITIONS FOR ACCEPTANCE OF RESIGNATION DURING SUSPENSION • (iii) Where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.

NOTICE FOR VOLUNTARY RETIREMENT DURING SUSPENSION • If the official under suspension gives notice for voluntary retirement, the power to withhold permission can be exercised by the appropriate authority before the expiry of the notice.

PROMOTION OF AN OFFICER UNDER SUSPENSION • The following cases should be specifically brought to the notice of the Departmental Promotion Committee:- • (i) Government servants under suspension;

PROMOTION OF AN OFFICER UNDER SUSPENSION • (ii) Government servants in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending; and • (iii) Government servants in respect of whom prosecution for a criminal charge is pending.

Sealed cover procedure • The promotion committee will follow the procedures for sealed cover. The same procedure would be followed by the subsequent Departmental Promotion committees also. • When the case is finalized the sealed cover would be opened. • If he is exonerated, he will be promoted with reference to the position assigned to him in the findings kept in the sealed cover/covers and with reference to the date of promotion of his next junior on the basis of such position

Sealed Cover Procedure • If any penalty is imposed on the Government servant as a result of the disciplinary proceedings or if he is found guilty in the criminal prosecution against him, the findings of the sealed cover/covers shall not be acted upon. • His case for promotion may be considered by the next DPC in the normal course and having regard to the penalty imposed on him.

Applicability of ‘sealed cover’ procedure to officers coming under cloud after holding of DPC but before promotion: • If an official is suspended after receipt of recommendations of DPC but before promotion , the case would be treated as a case of Sealed cover procedure. • He shall not be promoted until he is completely exonerated of the charges against him and the provisions relating to sealed cover will be applicable in his case also.

GRANT OF LEAVE WHILE UNDER SUSPENSION – MARKING OF ATTENDANCE BY A SUSPENDED EMPLOYEE • It is not permissible to grant leave to a Government servant under suspension under FR 55. • Direction to the employee during the period of suspension, to attend office and mark attendance at the office daily during working hours is illegal

Disciplinary Proceedings • Typical CASES

Major Penalties …justification.. • (viii) removal from service which shall not be a disqualification for future employment under the Government; • (ix) dismissal from service which shall ordinarily be a disqualification for future employment under the Government

Nature of offences that warrant penalties in Clause (viii) & (ix) • 1. The charge of possession of assets disproportionate to known-source of income • 2. The charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act

What shall not amount to penalty • (i) withholding of increments of a Government servant for his failure to pass any departmental examination if it is a condition for such an examination. • (ii) non-promotion of a Government servant, whether in a substantive or officiating capacity, to which he is eligible.

What shall not amount to penalty • (iii) reversion of a Government servant officiating in a higher Service to a lower Service on the ground of unsuitability or on any administrative ground unconnected with his conduct; • (iv) reversion of a Government servant, appointed on probation to his permanent Service at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation;

What shall not amount to penalty • (v) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement; • (vi) termination of the services of a Government servant appointed on probation

Officers performing current duties of a post cannot exercise Statutory powers under the Rules • An officer appointed to perform the current duties can exercise administrative or financial power vested in the full-fledged incumbent of the post but he cannot exercise statutory powers • Note: The officer on current duty can suspend an official.

PART VI - PROCEDURE FOR IMPOSING PENALTIES : • Rule 14: Already known • Rule 15: Already known • Rule 16:Already known

Rule 14 Post Enquiry action

General principles • Amendment to the charge-sheet - During the course of enquiry, if it appears necessary to amend the charge-sheet, it is permissible to do so provided that a fresh opportunity be given to the accused public servant in respect of amended charge-sheet.

General principles • The Inquiry Officer may hold the enquiry again from the stage considered necessary so that the accused public servant should have a reasonable opportunity to submit his defence or produce his witnesses in respect of amended charge-sheet.

General principles • If there is a major change in the charge-sheet, it would be desirable to draw fresh proceedings on the basis of the amended charge-sheet.

General principles • Whatever the Inquiry Officer does should be “lawful” but it should not be “legalistic”. • The legal principles with which Inquiring Authorities are primarily concerned are only the principles of natural justice.

General principles • The standard of proof required in a departmental oral inquiry differs materially from the standard of proof required in a criminal trial.

General principles • The Supreme Court has given clear rulings to the effect that a disciplinary proceedings is not a criminal trial and that the standard of proof required in a disciplinary enquiry is that of preponderance of probability and not proof beyond a reasonable doubt

Ex-parte proceedings • 1. 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 Inquiry Officer or • otherwise fails or refuses to comply with the provisions of the C.C.A. Rules, • the Inquiry Officer may hold the inquiry ex parte.

Ex-parte proceedings • 2. If the Government servant does not take advantage of the opportunity given to him to explain any facts or circumstances which appear against him he has only to blame himself and the Inquiry Officer has no choice but to proceed ex parte.

Disciplinary proceedings