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

(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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Download Handbook for Inquiry Officers and Disciplinary authorities released by DOPT