Handbook for Inquiry Officers and Disciplinary authorities

Handbook for Inquiry Officers and Disciplinary authorities released by DOPT for conducting enquiry and disciplinary proceedings against Central Government Employees

Personnel Ministry’s Institute of Secretarial Training Management has published a handbook containing procedure and conduct codes to be followed during enquiry.
Umesh Kumar

Director

INSTITUTE OF SECRETARIAT TRAINING & MANAGEMENT

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES & PENSIONS

(GOVERNMENT OF INDIA)

Administrative Block, J.N.U Campus (Old)

FOREWORD

In pursuance of the recommendations of the Committee of Experts which was set up to review the procedure of Disciplinary/Vigilance Inquiries, the Department of Personnel and Training (DOPT) had directed the Institute of Secretariat Training and Management to bring out an updated Handbook for Inquiry Officers and Disciplinary Authorities. Shri Sethu Ramalingam an Ex-Faculty of ISTM in vigilance matters who was entrusted with this work submitted the draft of the handbook well in time. Though every care has been taken to ensure the accuracy and correctness of the contents in the handbook, yet, in case the readers come across any errors or omissions, they may kindly bring the same to the notice of this Institute. Any comments or suggestions for the improvement of this handbook will be gratefully appreciated.

2. I am very happy to place this handbook in the hands of various users and readers. This Institute is thankful to the consultant and concerned divisions of DOPT for guiding the process of preparation of the handbook.

(Umesh Kumar)
Director
New Delhi

Chapter – 1

DISCIPLINARY PROCEEDINGS: CONTEXT AND OVERVIEW

1.        Human   resource   is   perhaps   the   most   valuable   asset   of   any organisation. It is the human resource which exploits other resources in the organisation so as to achieve the organisational objectives.   The aim of the Human  Resource  Department,  by  whatever  name  it  is  known  such  as Personnel  Department,  P&IR,  etc,  is  to  get  the  best  out  of  the  human resource of the organisation. For achievement of this purpose, there are many sub-systems   in   the   Human   Resource   Department   such   as   Grievance Handling, Counseling, Performance Appraisal, Career Planning, Training & Development, etc. Reward and Punishment system is one of the sub-systems under the Human Resource System. It is essential that every organisation, whether government or semi-government or private,   should have a well established   reward and punishment system to ensure that the people   are made to work towards the fulfillment of the organisational  goals. While the reward system will encourage the employees to work better towards the achievement of organisational  goals, punishment system is used to prevent people from working against the organisational goals.

2.        Misconduct,  or non-conforming  behaviour,  as it is sometimes  called, can be tackled in many ways such as counseling,  warning, etc. In extreme cases such as, criminal breach of trust, theft, fraud, etc. the employer is also at liberty to initiate action against the employee, if the misconduct of the latter falls within the purview of the penal provisions of the law of the land. However such proceedings generally conducted by the State agencies, are time consuming and call for a high degree of proof. In addition to the above option, the employer also has an option to deal with the erring employee within the terms of employment. In such an eventuality, the employee may be awarded any penalty which may vary from the communication  of displeasure,  to the severance of the employer-employee  relationship i.e. dismissal from service. Disciplinary authorities play a vital role in this context. Efficiency of the disciplinary authorities is an essential pre-requisite for the effective functioning of the reward and punishment function, more specifically the latter half of it.

3.        There was a time when the employer was virtually free to hire and fire the employees.   Over a period of time, this common law notion has gone. Today an employer can inflict punishment on an employee only after following some  statutory  provisions  depending  upon  the  nature  of  the  organisation. Briefly, the various statutory provisions which govern the actions of different types of organisation are as under:

(a)  Government: Part XIV of the Constitution relates to the terms of employment  in respect  of persons  appointed  in connection  with  the affairs  of the State. Any action  against  the employees  of the Union Government and the State Governments should conform to these Constitutional   provisions,   which  confer  certain  protections   on  the Government servants. These provisions are applicable only to the employees  of the various  Ministries,  Departments  and Attached  and Subordinate Offices.   Further, the employees, being citizens of the country also enjoy Fundamental Rights guaranteed under Part III of the Constitution and can enforce them though the Writ jurisdiction of the Courts.   In addition to the constitutional  provisions,  there are certain rules which are applicable to the conduct of the proceedings for taking action  against  the  erring  employees.  Central  Civil  Services (Classification, Control, and Appeal) Rules 1965 cover a vast majority of the Central Government employees. Besides, there are also several other Rules which are applicable to various sections of the employees in a number of services.

(b)    Semi  Governmental  Organisations:  By  this,  we  mean  the  Public Sector Undertakings and Autonomous Bodies and Societies controlled by the Government.   Provisions of Part XIV of the Constitution do not apply  to the  employees  of  these  Organisations.  However,  as  these organisations can be brought within the definition of the term ‘State’ as contained  in  Article  12 of  the  Constitution,  the  employees  of  these organisations are protected against the violation of their Fundamental Rights by the orders of their employer. The action of the employer can be challenged by the employees of these organisations on the grounds of arbitrariness, etc. These organisations  also have their own sets of rules   for   processing   the   cases   for   conducting   the   disciplinary proceedings against their employees.

(c)   Purely private organisations: These are governed by the various industrial  and labour laws of the country and the approved  standing orders applicable for the establishment.

4.        Although the CCS (CCA) Rules 1965 apply only to a limited number of employees  in the Government,  essentially  these are the codification  of the Principles of Natural Justice, which are required to be followed in any quasi judicial proceedings.  Even the Constitutional protections which are contained in Part XIV of the Constitution  are the codification  of the above Principles. Hence, the procedures  which are followed in most of the Government  and semi-governmental  organisations  are more or less similar.  This handout  is predominantly based on the CCS (CCA) Rules 1965.

5.        Complexity  of  the  statutory  provisions,  significance  of  the  stakes involved,  high proportion  and frequency  of the affected employees  seeking judicial intervention, high percentage of the cases being subjected to judicial scrutiny, huge volume of case law on the subject – are some of the features of this    subject.  These,  among  others  have  sparked  the  need  for  a  ready reference material on the subject. Hence this handbook.

Chapter -2

ROLE OF DISCIPLILNARY AUTHORITIES

1.  Who is Disciplinary Authority?

The term Disciplinary  Authorities  refers to such authorities  who have been entrusted with powers to impose any penalty on the employees. In respect of the organizations  falling under the purview  of CCS (CCA) Rules 1965, the term Disciplinary Authority is defined in Rule 2 (g) of the CCA Rules as the authority competent to impose on a government servant any of the penalties specified in Rule 11. In this Handbook, CCS (CCA) Rules 1965 is henceforth referred to as “the Rules”

Disciplinary  authority  is  defined  with  reference  to  the  post  held  by  the employee.  Various  Disciplinary  authorities  are  specified  in  Rule  12  of  the Rules. Thus there may be more than one disciplinary authority in every organization.

2.  What are the kinds of Disciplinary Authorities?

Normally, there are two categories of Disciplinary Authorities viz. those who can  impose  all  penalties  on  the  employees  and  the  authorities  who  can impose only minor penalties.

3.  What are the powers and responsibilities of the Disciplinary Authorities?

Although it is not explicitly stated anywhere, main responsibility of the Disciplinary Authority is to ensure discipline in the organization. Towards this, the disciplinary authorities are required to identify acts of indiscipline and take appropriate remedial action such as counseling, cautioning, admonition, imposition of penalties, criminal prosecution, etc.

4.  What is the relationship between Appointing Authority and Disciplinary

Authority?

Appointing Authorities are empowered to impose major penalties. It may be recalled that Article 311 clause (1) provides that no one can be dismissed or removed from service by an authority subordinate to the Authority which appointed him. In fact under most of the situations, the powers for imposing major penalties  are generally  entrusted  to the Appointing  Authorities.  Thus Appointing  Authorities  happen  to be disciplinary  authorities.  However  there may be other authorities who may be empowered only to impose minor penalties.   Such   authorities   are  often   referred   to  as  lower   disciplinary authorities for the sake of convenience.

In this handbook, the term Disciplinary Authority has been used to signify any authority who has been empowered to impose penalty. Thereby the term includes appointing authorities also.

5.  How to decide the Appointing Authority, when a person acquires several appointments in the course of his/her career?

CCA  Rule  2(a)  lays  down  the  procedure  for  determining  the  Appointing Authority in respect  of a person by considering  four authorities.  Besides, it must also be borne in mind that Appointing Authority goes by factum and not by rule. i.e. where an employee has been actually appointed by an authority higher than the one empowered to make such appointment as per the rules, the former shall be taken as the Appointing Authority in respect of such employee.

6.  What should be the over-all approach of the Disciplinary Authority?

Disciplinary authorities are expected to act like a Hot Stove, which has the following characteristics:

Advance warning – One may feel the radiated heat while approaching the Hot stove. Similarly, the Disciplinary Authority should also keep the employees informed of the expected behavior and the consequences  of deviant behavior.

Consistency:  Hot stove always, without exception, burns those who touch it.  Similarly,   the  disciplinary   authority   should   also  be  consistent   in approach. Taking a casual and lenient view during one point of time and having rigid and strict spell later is not fair for a Disciplinary Authority

 

Impersonal: Hot stove treats all alike. It does not show any favouritism or spare   anybody.   Similarly,   the   disciplinary   authority   should   treat   all employees alike without any discrimination. [You may feel that past good conduct of the delinquent employee is taken into account while deciding the  quantum  of  penalty.  This  is  not  in  contravention  of  the  rule  of impersonal approach. Even past conduct has to be taken into account in respect of all the employees, without discrimination.]

Immediate  action: Just as the hot stove burns the fingers of those who touch it without any time lag, the disciplinary authority is also expected to impose penalty without delay. This will make the delinquent employee link the misconduct to the penalty; besides it also sends a message that misconduct will be appropriately dealt with.

[The  rule  is attributed  to  Douglas McGregor who  is better known  for his ‘X’  and  ‘Y’

theories  of Management]

7.  How to find out who is the Disciplinary Authority?

Firstly, it must be remembered  that the Disciplinary authority is determined with reference to the employee  proceeded against.   Schedule to the Rules

1965 lay down the details of the disciplinary authorities in respect of various grade of employees in different services in the Government.   The President, the Appointing Authority, the Authority specified in the Schedule ot the Rules (to the extent specified therein) or by any other authority empowered in this behalf by any general or special order of the President may impose any fo the Penalties specified in Rule 11.

Appointing Authority as mentioned in the Schedule must be understood with reference to rule2 (a) of the Rules. The question as to who is the appropriate disciplinary  authority  must  be raised  and  answered  not  only  while  issuing charge sheet but also at the time of imposing penalty because there might have been some change in the situation due to delegation of powers, etc. in the organization.

8.  What are the functions of the Disciplinary Authority?

Disciplinary authority is required to discharge the following functions: (a) Examination of the complaints received against the employees

(b) Deciding as to who is to be appointed as the investigating authority

 

(c) Taking  a view as to whether  there is any need to keep the delinquent employee under suspension

(d) Taking a view on the preliminary investigation report and deciding about the future course of action thereon, such as warning, training, counseling, initiation of major or minor penalty proceeding, prosecution, discharge simpliciter, etc.

(e) Consultation   with   the   Central   Vigilance   Commission   (CVC)   where necessary

(f)  Deciding whether there is any need to issue of charge sheet or   penalty may be imposed  dispensing with inquiry under the appropriate provision

(g) Issue of charge sheet where necessary  – Rule 14(3)

(h) In the case of minor penalty proceedings,  deciding,  either suo motu or based on the request of the delinquent employee, as to whether it is necessary to conduct a detailed oral hearing.

(i)  In the case of minor penalty proceedings, forming tentative opinion about the quantum of penalty based on the representation of the delinquent employee,   if  any,   and   ordering   for  a  detailed   oral   hearing   where necessary.

(j)  After issue of charge sheet, deciding as to whether there is any need to conduct  inquiry,  or  the  matter  may  be  closed,  or  the  penalty  can  be imposed, based on the unambiguous, unconditional and unqualified admission by the delinquent employee.

(k) Passing final order imposing penalty or closing the case, based on the response of the delinquent employee

(l)  Appointment of Inquiry Authority and Presenting Officer,  where necessary

(m)Taking a view on the request, if any, of the delinquent employee for engagement of a Legal Practioner as Defence Assistant

(n) Making  originals  of all the listed documents  available  to the Presenting Officer so that the same could be presented during the inspection of documents.

(o) Examination of the  inquiry report to decide as to whether the same needs to be remitted back to the inquiry authority – Rule 15(1)

(p) Deciding  as  to  whether  the  conclusion  arrived  at  by  the     Inquiring Authority is acceptable and to record reasons for disagreement  if any – Rule 15(2)

 

(q) Consultation with CVC or UPSC where necessary

(r) Forward the inquiry report to the delinquent employee together with the reasons for disagreement,  if any and the recommendations  of the CVC where applicable – Rule 15(2)

(s) Considering the response of the delinquent employee to the inquiry report and the reasons for disagreement  and taking a view on the quantum of penalty or closure of the case. Rule 15(2)A

(t)  Pass final order in the matter – Rule 15(3)

(u) On receipt of copy of the appeal from the penalized employee,  prepare comments on the Appeal and forward the same to the Appellate Authority together with relevant records. – Rule 26(3)

9.  What happens if any of the functions of the Disciplinary Authority has been   performed   by   an   authority   subordinate   to   the   disciplinary authority?

Where a statutory function has been performed by an authority who has not been empowered to perfrom it, such action without jurisdiction would be rendered null and void. The Hon’ble Supreme Court in its Judgment dated 5th

September 2013, in Civil Appeal No. 7761 of 2013 (Union of India & Ors. Vsd. B V Gopinathan) has held that the statutory power under Rule 14(3) of the CCA rule has necessarily to be performed by the Disciplinary Authority. as under:

“49.    Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents,  we deem  it  appropriate  not to opine  on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non est in the eye of law.”

10. What knowledge is required for the efficient discharge of the duties in conducting disciplinary proceedings?

Disciplinary Authority is required to be conversant with the following:

Constitutional provisions under Part III (Fundamental Rights) and Part XIV (Services Under the Union and the States) ………..

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