CHAPTER- 1

CONSTITUTIONAL PROVISION AND CONDITIONS OF SERVICE

(1)The article 309 of Part XIV of the constitution of India lays down the power to legislate for methods of recruitment and conditions of service for the employees of the Union or States. It reads as follows:

“Recruitment and conditions of service of persons serving the Union or a State Subject to the provisions of this Constitution, Acts of the appropriate Legislature may regulate the recruitment, and conditions of service of persons appointed, to public services and posts in connection with the affairs of the Union or of any State: Provided that it shall be competent for the President or such person as he may direct in the case of services and posts in connection with the affairs of the Union, and for the Governor of a State or such person as he may direct in the case of services and posts in connection with the affairs of the State, to make rules regulating the recruitment, and the conditions of service of persons appointed, to such services and posts until provision in that behalf is made by or under an Act of the appropriate Legislature under this article, and any rules so made shall have effect subject to the provisions of any such Act”

(2) Simply put Article 309 of the constitution states: Subject to the provisions of the constitution, Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to the public services and posts in connection with the affairs of the Union or of any State. Provided that it shall be competent for the President or such persons as he may direct to make rules regulating the recruitment and conditions of service of persons appointed to such services and posts until provision in that behalf is made by or under any Act of appropriate Legislature.(3) Though the Parliament is empowered to make laws regulating the recruitment and conditions of service of central government servants, yet parliament has not so far passed any such law. The President, under the proviso to the above article has made a number of Rules like The Railway Servant (Discipline & Appeal) Rules 1968, CCS (Temporary Service Rules) 1965, but reference is made here for

(a) CCS (Conduct) Rules 1964(b) CCS (CCA) Rules 1965

These rules have the force of law and are justiciable. However, if an Act is passed by the Parliament, it would supersede any rule made by the President. Article 309 is expressly made subject to the provisions of the Constitution. It means that the provisions or rules made under this article will be subject to

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the Art. 310(1) as also Art.311 and other provisions like Art 14,16, 19 299 etc.(4) Article 310 deals with the ‘pleasure doctrine’.(5) Art. 311 (1) enjoins that no civil servant under the Union or State shall be dismissed or removed by an authority subordinate to that which he was appointed.

Clause (2) of the said Art. states that no person as aforesaid (Civil servant under the Union or State) shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges. The proviso to the Art. 311 further provides that this clause shall not apply(a) where a person is dismissed or removed or reduced in rank

on the ground which led to his conviction in Criminal Court(b) Where authority empowered to dismiss or remove or reduce

in rank is satisfied that for some reason, to be recorded in writing, it is not reasonably practicable to hold such inquiry; or

(c) Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of State it is not expedient to hold such inquiry.

Let us consider the each proviso:(a) the rationale behind this exception is that when the Government

servant has been convicted by a court after a fair trial, where he had ample opportunity to defend himself. Further the applicability of the Law of Evidence is much more rigorous than applied in departmental proceedings. However it should be noted that the clause applies for conviction under criminal charge involving moral turpitude or without it. Thus conviction under Police Act for drunkenness is also conviction under court of law.

The conviction contemplated under this proviso means conviction by a competent Court of Law against which no further appeal or review is permitted. This means conviction by the last court. However, it is open for the disciplinary authority to pass an order of penalty immediately after the trial court records conviction. But if conviction is set aside by the appellate court the punishment awarded can not stand.IS IMPOSITION OF PENALTY IS A MUST ON CONVICTION

An impression prevails that conviction of an employee would automatically entail his dismissal, removal or reduction in rank.

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The Supreme Court has stated in judgments that penalty is not necessary on conviction. It is up to the disciplinary authority to apply his mind to come to a conclusion based on its impact on administration or the whether the conviction was purely on technical ground.EFFECT OF CONVICTION BEFORE JOINING THE SERVICE

Disciplinary authority is empowered to take action under proviso to the rule if the fact of conviction was not known to appointing authority at the time of appointment. However, if it was known to the appointing authority but it ignored it the rule can not be invoked.WHEATHER DEPARTMENTAL PROCEEDINGS AND CRIMINAL TRIAL CAN PROCEED SIMULTANEOUSLY

There is no bar to the disciplinary proceedings and the criminal trial being held simultaneously provided

(a) the two do not cover the same fact or allegation(b) if the case is of simple nature not involving question of fact or law

i.e. there is no relationship between criminal trial and departmental proceedings

It will not amount to contempt of court unless the proceedings have been stayed by the court by an injunction.

WHETHER DEPARTMENTAL ACTION IS PERMISSIBLE AFTER ACQUITTAL BY CRIMINAL COURT

It is well known that standard of proof required in a criminal court is of much high standard than required in departmental proceedings. In fact in departmental proceedings it is preponderance of probability. The proof required is not beyond reasonable doubts. BUT many a times court acquits the person on technical grounds. Acquittal in a criminal trial may on account of –(i) lack of sufficient evidence(ii) lack of sanction for prosecution or technical defect(iii) irregularity committed by trial court(iv) defect of technical nature in proceedings(v) honorable acquittal on merits

In respect of grounds (i) to (iv) it is open to the disciplinary authority to proceed departmentally against the delinquent Government servant and the person can punished. Madras High Court in a judgment held that penalty imposed on a teacher by the departmental authority valid despite the fact that he was acquitted of the charge of rape against a girl student in the court case. The departmental authority punished him for grave impropriety in his relationship with the girl student and the conduct of the delinquent was such as to bring down the reputation of the organization.

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Proviso clause (b) clearly states thatInquiry can be dispensed with only by the competent authority empowered to dismiss or remove or reduce in rank For the reasons to be recorded in writing that it is not reasonably practicable to hold inquiry as per the provision of the CCS(CCA) Rules 1965 Art.311(3) further provides that decision of the competent authority not to hold inquiry shall be final and shall not subject to any appeal, or review but can be a subject of judicial review. Further the situation which makes the holding of inquiry not reasonably practicable should exist at the time the decision was taken.

MEANING OF THE TERM ‘REASONABLY PRACTICABLE’

(1) The term has been used in relation to holding of enquiry and it is no way related to the articles of charge i.e. inquiry can not be dispensed with on the ground that it would be difficult to prove the charge. (2) there should be physical or legal impediment to the holding of inquiry and the reasons should be assessed objectively.(3) mere expediency or desire to take quick drastic action can not be termed as reasons for not holding the inquiry.(4) holding of inquiry may become practicable at any stage of the inquiry, say after the service of the charge sheet or during the course of inquiry. The test is that a reasonable person take a reasonable view of the prevailing situation.(5) Reason for not holding of inquiry may or may not be informed to the employee. The requirement is that reasons should be recorded in writing before taking the decision.

PROVISO CLAUSE ©

(1) The decision of the President or Governor regarding in the interest of the state is final and can not be challenged in the Court of law.(2) Security of State does not mean the security of the entire state. It includes security of the part of the state also. Passing of secret information to another country, links with terrorists or terrorists’ organization are the examples of invoking this clause.

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CHAPTER- 2PRINCIPLES OF NATURAL JUSTICE

Introduction

The expression ‘Natural Justice” is derived from the old expression ‘Jus naturale’ i.e. justice which comes naturally to man or which is part of his nature. Lord Asher has defined it as ‘Natural sense of what is right or wrong’. As is well known the elements of jurisprudence which are now regarded as the hallmark of the judicial system in civilized society have been generally enforced or regarded as proper since times immemorial. The justice of Vikramaditya is proverbial and so was the case in the recent past during the reign of Jahangir commonly known as Jahangiri Insaf. In England, the principles of British justice were based on the principles of fair play and just procedure. In America these principles have been read into the phrase “Due Process” included in the American Constitution. ‘That no man should be condemned unheard’ was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered. In old times the concept of natural justice was a concept embedded in religion and philosophy. Now it is a concept of practical utility in the dispensation of justice whether by a Court of Law or a quasi-judicial tribunal or authority. The concept has, of late, permeated to the field of Administrative decision-making also to some extent. Before we proceed further, let us trace the historical development of the principles of natural justice.Historical Development of the Principles of Natural Justice

The principles of natural justice are as ancient as man himself. Bible tells us the story of Adam and Eve when they ate the fruit of knowledge while they were living in paradise. The story goes that God had forbidden Adam and eve, the first man and woman, to eat the fruits of a particular tree in paradise. The Satan, however, induced them to taste the fruit which they did. When this fact came to the knowledge of God, he did not condemn them and pass sentence. God, it is so said, called upon both Adam and Eve to explain. God said to Adam, “Where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat”. This clearly shows that even God who is all pervasive and who knows all things did not think it proper to condemn without giving a chance to Adam and Eve to state before him their defence. This principle “No one should be condemned unheard” is derived from the action of God himself. Certainly there can be no better authority in the world than God. Keeping the above authority in mind, the most eminent judges of 17 th

Century upheld the supremacy of natural justice over the Statutory Law. In Calvin’s case (1608)—7 Co Rep la (121) : 77 ER 377 (391-392) it was held that the law of nature is immutable as it came before any judicial or Municipal law. It was also held that the law of nature was infused into the heart of man by God at the time of the creation of the nature of man for his preservation and direction and this was therefore eternal and moral law

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since it was written with the finger of God in the heart of man before the law was written by his prophet i.e. Moses. The view held was that even the Acts passed by Parliament, if there were repugnant to the law of nature, would be void. According to this interpretation even an Act of Parliament made against natural justice and equity, as to make a man judge in his own cause was held as void as the laws of nature were considered immutable.

This position, however, underwent a radical change in the 19th Century when the Courts in England held that the general principles of natural justice cannot modify the statutory law and no court can countenance a view that an Act of Parliament is not binding if it is contrary to reason or principles of natural justice. In the case of Logan Vs Burslem in 1842, it was held that a court of justice cannot itself be above the Legislature. Further in the historical case of Local Government Board Vs Alridge (1915-AC 120), it was conclusively laid down that the authority of the courts is purely statutory and if an Act of Parliament expressly authorizes a procedure in consistent with the principles of natural justice, then that has to be followed, because the law of Parliament is Supreme. A distinction has however, to be made in as much as that the principles of natural justice are applicable where the statutory law as made by Parliament is silent about the procedure to be adopted. Thus even in England where the view was held that the principles of natural justice are Supreme and above the laws of the land, the position has been reversed. The position now prevailing is that the principles of natural justice are not construed to override statutory laws. In India, which is also a common law country, the position is slightly different. The principles of natural justice are not treated as fundamental rights and hence there is no constitutional protection like the “Due process” in America. Article 21 of the Constitution provides that no person shall be deprived of his life or liberty except according to the procedure established by law. The position as it prevails at present is that a law can be passed by the Indian Parliament violating the principles of natural justice and such law shall not be void. In India any law which is repugnant to the express provisions of the constitution alone is struck down as void. Thus the law providing for preventive detention without trial is valid law in India. The correct position of the principles of natural justice has been admirably stated by the Supreme Court in case of A K Kariapak Vs the Union of India (AIR 1970 SC 150). The Supreme Court has observed, “the aim of rules of natural justice is to secure justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.” The position that, therefore, emerges is that legislative enactment cannot be declared as void except on the basis of the express constitutional provision limiting legislative power and controlling the temporary will of a majority by permanent and paramount law settled by society in its deliberate wisdom and opinion. Any assumption of authority beyond this would be to place in the hands of the Judiciary powers too great and too indefinite either for its own security or for the protection of private rights. The above position was stated by our Supreme Court in the case of AK Gopalan Vs State of Madras (AIR 1950 SC 27) immediately after the enactment of our Constitution. The view then expressed holds good even today after the

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Constitution has been in operation for over 60 years. However, a note of caution is necessary at this stage. Whereas it is the duty of the Courts to follow the law as enacted by the legislature, they are not debarred from reading into it, the principles of natural justice if these can be read in consonance with the provision of the law. If, however, the law provides for a procedure which excludes the principles of natural justice either by a specific provision or by implication, these principles cannot be read into the law by the Courts. Having examined the historical developments of the principles of natural justice we must now state these principles.Basic Principles of Natural Justice

There are two main principles of natural justice:(1) AUDI ALTEREM PARTEM (Hear the other party) means no person

shall be condemned unheard. Reasonable opportunity should be given to the party to prove his innocence and defend himself.

(2) NEMO DEBET ESSE JUDEX IN PROPRIA CAUSA The second principle is that no one shall be a judge in his own cause. This necessarily implies the judge must be impartial and without bias. Judges like Ceaser’s wife or like the wife of Mandan Mishra be above suspicion. It is of the fundamental importance that justice not only be done but manifestly and undoubtedly seen to be done. The judge must be free from any kind of bias.

There are three kinds of biases:(i) Pecuniary bias(ii) Personal bias(iii) Bias in the subject matter or official bias

(3) The Third Principle: (a) Decision must be made in good faith. This

principle has been derived from the principle no one should be a judge in his own cause. The decision must be made in good faith implies that the judge has bestowed due consideration to the facts and evidences adduced during the trial or inquiry. He should arrive at the decision without favour to any of the parties.

(4) The Fourth Principle: The fourth principle of natural justice demands that the final order should be a speaking order. A speaking order contains the reasons for the conclusion reached.

In order that the above two principles may be applied effectively, a number of other principles shall have to be enunciated. For example, the first principle that no one shall be a judge in his own cause necessarily implies that the tribunal or the judge must be impartial and unbiased. The judicial or quasi-judicial authority should not only himself not be a party, but also not be interested as a party in the subject matter of dispute which he has to decide. “Judges like Ceaser’s wife should be above suspicion. It is of fundamental importance that justice should not only be done, but should

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manifestly and undoubtedly be seen to be done. It is, therefore, clear that a decision of a tribunal is vitiated by the mere fact that an interested person sat at the hearing. In the case of AK Kariapak Vs. the Union of India, the Supreme Court accepted the plea of the petitioner that the selection was vitiated because one of the persons on the Selection Board was himself a candidate for the post for which the Selection was held. In such a case the bias of the Selection Board was obvious. In order that a judge or quasi-judicial authority should be impartial, it must be free from bias of any kind. Now bias is of three kinds, namely (i) pecuniary bias; (ii) personal bias and (iii) bias in the subject matter official bias.

A pecuniary interest, however, slight will disqualify the person to be a judge in the case. Thus, in the case of Air Corporation Employees Union Vs. Vyas the proceedings were held void by the Supreme Court because it was shown that the chairman of the arbitrators had accepted the hospitality of the Air Corporation on an inaugural flight. Similarly, shareholders in a Railway Company were held to be disqualified from hearing charges against ticket-less passengers even though the interest of each shareholder was less than ¼th of pence. However, mere trusteeship of a friendly society would not constitute a pecuniary interest to disqualify a trustee.

A judge may sometime have personal bias towards a party owing to relationship and the like or he may be hostile to a party as a result of events happening either before or during the trial. Whenever there is an allegation of personal bias, it should be seen whether there is in the mind of accused a reasonable apprehension that he would not get a fair trial. The test, therefore, is that there should be a reasonable likelihood of bias. The phrase reasonable likelihood has been defined by the Supreme Court in the case of R. Parthasarthy Vs. State of Ahdhra Pradesh (AIR 1973 - SC 2701) by observing that reasonable likelihood be assumed if in the mind of a reasonable man there is a suspicion that there is a likelihood of bias.

The bias is the subject matter of official bias must be specific. Thus a judge should not try a case in which he has examined himself as a witness. In the case of State of U.P. Vs. Mohd. Noor (AIR 1958 SC 88) the facts were that Shri Mohd. Noor was proceeded against departmentally. The Inquiry Officer appointed to inquire into the truth of the allegations acted as a witness. The Supreme Court held that he could not be a judge and the witness at the same time. The mere general interest in the general object to be pursued would not disqualify the judge. Thus in the case of R. Vs. Deal Justices (1881) 45 L. T. 439 (441) it was held that a Magistrate who subscribed to the Society for Prevention of cruelty to animals was not thereby disqualified from trying a charge brought by that body of cruelty to a horse.

In all the above cases of bias, the party is required to raise the objection of bias at the earliest possible opportunity. Thus if a party, who with full knowledge of the facts constituting bias, does not raise the objection, it will be assumed that the party has expressly or impliedly waived

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his right. In these circumstances, the objection if raised later has to be over-ruled. The second basic principle of natural justice, i.e. “Audi alteram partem” (hear the other party) means that no one shall be condemned unheard. A natural corollary of this principle is that the party against whom the proceedings are launched should have a reasonable notice of the case he is called upon to meet. The reasonableness of the notice is a question of fact to be ascertained in each case. However, notice implies that the person concerned is not informed of the allegations against him but also the evidence supporting the allegations. The other requirement is that the person should be given a fair chance of being heard and allowed to rebut or explain the allegations leveled against him. This he can do only if he is allowed to cross-examine the witness produced in support of the allegations, produce witnesses and documents in his own defence. In short, he should have a fair opportunity to state his case and to meet the allegations made against him. This principle of natural justice also imposes another restriction that no evidence shall be recorded at the back of the party. But, if a party fails to avail of the opportunity afforded to it of fair hearing because of its own willful commission or neglect, then it is debarred from pleading that the principle of natural justice has been violated in its case. In T. R. Verma’s case, the Supreme Court has laid down the following three conditions, which, if satisfied, would amount to reasonable opportunity having been afforded:

(i) The adjudicator should receive all the relevant material which a party wishes to submit in his support.

(ii) The evidence of the opponent whether oral or documentary should be taken in his presence. (iii) Each party should have the opportunity of rebutting the

evidence of the other by cross-examination or explanation.

If the above conditions are met, the principles of natural justice are deemed to be complied with substantially. In addition to the above mentioned two principles, which are basic, the following two principles are a natural and logical consequence of the above principles:

(i) The decision must be made in good faith.(ii) The final order must be speaking order.The principle that the decision must be made in good faith is derived

directly from the principle that no one shall be a judge in his own cause. This pre-supposes the impartiality of the judge and that he should be without any bias. The decision must be made in good faith implies that the judge has bestowed consideration to the facts and evidence adduced during the trial or enquiry. That he has arrived at the decision without favour to any of the parties.

Now whether the judge has considered the evidence before him can only be ascertained, if the final order is a speaking order. A speaking order

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means that it should contain the reasons for the conclusions reached. In the case of Bhagat Raja Vs. Union of India — (1967) Z SCR 302, it has been held that if an order does not give any reasons, it does not fulfill the elementary requirements of a quasi-judicial process. In the case of M. P. Industries Vs. Union of India (AIR 1966 SC 671) a plea was taken before the court that giving reasons might involve delay. Rejecting this contention, the Court observed: “The least a tribunal can do is to disclose its mind as disclosure guarantees consideration. The condition to give reasons minimizes arbitrariness, it gives satisfaction to the party against whom the order is made and it also enables an appellate or supervisory court to keep the tribunals within bounds”.Applicability of the Principles of Natural Justice –

Applicability to Courts and Quasi Judicial Proceedings

To begin with, it should be pointed out that the doctrine of natural justice was initially applicable to the Courts in respect of judicial functions and it is from that sphere that the doctrine has been extended to statutory authorities or tribunals exercising quasi-judicial functions. The next question that arises is what is a quasi-judicial function? In the words of Scott L.J., an authority obliged to make a quasi-judicial approach meant “exercising nearly judicial functions through not tied to ordinary judicial procedure.”Difference between Judicial, Quasi-Judicial and Administrative Functions

1. The quasi-judicial function is one which stands between a judicial and a purely administrative function.

2. A purely administrative act does not decide any rights of private parties though it may affect them, but the quasi-judicial act determines the rights of private parties with a binding force.

3. An administrative act may be non-statutory such as transfer of Govt. servant, but a quasi-judicial act can be performed only under a statutory authority.

4. A purely administrative body has no procedural obligation unless so required by a statute or law. On the contrary, the moment a function becomes quasi-judicial; it implies the application of the principles of natural justice.

5. Administrative function can be delegated but a judicial or quasi-judicial function cannot be delegated unless permitted by law or statute.

6. The judicial function is exercised by courts of law and the decision has to be objective. The quasi-judicial function can be exercised by a statutory or administrative authority so empowered. The function though judicial lacks the trapping of the Court. For example, the Indian Evidence Act is not applicable in quasi-judicial proceedings. It is applicable only to judicial proceedings before a Court of Law.

The above discussions leads us to the conclusion that whenever an authority whether administrative or statutory is required to decide

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objectively, his decision is said to be quasi judicial. (Gopal Krishna Vs. State of M. P. AIR 1968 SC 240). The essential test for a quasi judicial tribunal is that it has only to follow the judicial approach in determining the questions of fact involved in the case or matter before it. There should be a statutory obligation to follow the judicial approach on an authority to be called quasi-judicial authority. It has been held that the disciplinary proceedings are quasi-judicial in nature (Union of India Vs. HC Goel, AIR 1964 SC 364).Application to Administrative Functions

The principles of natural justice shall not apply to purely administrative decisions or orders as judicial approach, which is the quintessence of the quasi-judicial function, is not required to be followed while arriving at purely administrative decisions or passing such orders. However, where there is an indication that the administrative authority is required to decide objectively, the principles of natural justice shall come into play. In the recent past, the Supreme Court of India has laid down the functional test in a number of cases. For example, it has been held that following functions would attract the principles of natural justice:

(i) An appellate function even if the appeal is from the administrative order and the appellate power is vested in another administrative authority (Nagendra Vs. Commissioner, AIR 1958 SC 388).

(ii) Disciplinary proceedings against students which may seriously affect their career or render them liable to criminal prosecution (Shri Bhagwan Vs. Ram Chand, AIR 1965 SC 1767).

(iii) Determining the age of a Govt. employee (State of Orissa Vs. Binapani, AIR 1967 SC 1269).

(iv) Fixing the pay of a Govt. servant on reinstatement under F. R. 54 (Gopal Krishna Vs. State of M. P. AIR 1968 SC 240).

It would be seen that court decisions are setting a trend that more administrative decisions and orders should be brought under the purview of the principles of natural justice, particularly where the interests of a party are prejudicially affected. This is despite the fact that at one time there was a consensus on the proposition that the doctrine of natural justice is applicable only to judicial and quasi-judicial proceedings and not to purely administrative proceedings. This is, however, being steadily whittled down and a stage is fast approaching when it would be difficult to state where the administrative ends and the judicial begins. The result is that more and more areas of administrative decision making are progressively being brought under the purview of the doctrine of natural justice.Applicability to Disciplinary Proceedings

Let us now examine the position of disciplinary proceedings against Govt. servants and imposition of penalties as a result of such proceedings. Article 311 of the Constitution enjoins that a Govt. servant cannot be dismissed or removed from service by an authority lower in rank than his

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Appointing Authority. It further provides that no Govt. servant shall be dismissed, removed or reduced in rank unless he has been given a reasonable opportunity of being heard in respect of the charges brought against him. These provisions in the Constitution place an obligation on the authority competent to dismiss, remove or reduce a Govt. servant in rank to have a judicial approach. Article 311(2) of the Constitution provides for reasonable opportunity which has, however, not been defined in the Constitution and hence the principles of natural justice are imported into the definition of ‘reasonable opportunity’ and become applicable to these proceedings by virtue of the provisions of the Constitution. Under Article 309, the President of India has framed rules called CCS (CCA) Rules, 1965 and other comparable Rules such as All India Civil Services Rules etc., which inter alia lay down the procedure to be followed in disciplinary proceedings against Govt. servants. Hence, when the procedure laid down in the statutory rules is followed, the principles of natural justice are generally deemed to have been followed. However, where the rules are either silent or their operation involves fair consideration or use of discretion in a judicial manner, the principles of natural justice become applicable. But, if the statute or rules made thereunder be specific provision or by necessary implication rules out the application of a certain principle of natural justice, such principle shall have no application. Thus, where a Govt. servant requests for permission to have a legal practitioner as his defence assistant, the question has to be decided by taking into consideration the facts of the case. The discretion in such a case has to be applied judicially and the principles of natural justice come into play.

REASONABLE OPPORTUNITYReasonable opportunity means and include

(i) an opportunity to deny his guilt and establish his innocence which he can do if he is told what the charges are leveled against him

(ii) an opportunity to defend himself by cross- examination of the witnesses produced against him and examining himself or any other witness in support of his defence

Hence the authority should:(a) frame specific charges with full particularity(b) intimate those charges to the Government servant concerned(c) give him an opportunity to answer those charges(d) take a decision after considering his answers(e) the principles of natural justice should be observed in coming to the

decisionConclusion To sum up, the principles of natural justice are applicable to judicial and quasi-judicial proceedings generally unless their operation is ruled out by the specific and positive provisions of a statute or law or by its necessary implication. These rules are not applicable in respect of purely administrative orders which are rested on subjective discretion, but may be applied where the administrative authority is called upon to decide

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objectively or where its decision is likely to affect the other party prejudicially to great extent. These principles are intended to ensure fair play and justice or to avoid miscarriage of justice. Some of the commonly recognized principles of natural justice are: 1. No one shall be judge in his own case.

2. Hear the other party or no one should be condemned unheard.3. The decision must be made in good faith.4. The final order must be a speaking order.

The requirements of natural justice have been summed up admirably by the Madras High Court in the case of G. Gabriel Vs. State of Madras (1959) 2ML 15 (Mad HC) in the following terms:

“All enquiries, judicial, departmental or other into the conduct of individuals must conform to certain standards. One is that a person proceeded against must be given a fair and reasonable opportunity to defend himself. Another is that a person charged with the duty of holding the enquiry must discharge that duty without bias and certainly without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of the enquiry, but also in dealing with the evidence and the materials on record when drawing up the final order. A further requirement is that the conclusions must be rested on the evidence and not on matters outside the record. And when it is said that the conclusions must be rested on the evidence, it goes without saying that it must not be based on the misreading of the evidence. These requirements are basic and cannot be whittled down whatever be the nature of the enquiry whether it be judicial, departmental or other. However, where the enquiry is judicial, we insist that yet another requirement should be complied with, that is contained in the familiar statement that it is not sufficient that justice is done but that justice should also manifestly appear to be done.”

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CHAPTER- 3CONDUCT RULES IN PUBLIC SERVICE - WHAT IS

MISCONDUCT ? If you search the "Indian Penal Code" or the "Code of Criminal Procedure", you will not find the definition of the word "corruption". It is also not found in the "Prevention of Corruption Act". Similarly the word "misconduct" and the word "unbecoming conduct" have not been meaningfully defined in any of the Conduct Regulations. Various dimensions of misconduct are now considered here.The dictionary meaning of "misconduct" is given as "bad management", "mis-management", "malfeasance or culpable neglect of an official in regard to his office" (Murray's Dictionary)."Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand. It is a violation of definite law, a forbidden act"(Ballentine's Law Dictionary).It implies a wrongful intention and not a mere error of judgment (Law Lexicon)Misconduct As Defined in Judicial Pronouncements Thought not defined in any enactment, the legal content of this word is vividly brought out in judicial pronouncements. All these judicial decisions stress the importance for cleanliness and purity both in public and private life of public servants, while dealing with this termThe word "misconduct" is a sufficiently wide expression and covers any conduct which in any way renders a man unfit for his office or is likely to tamper or embarrass the administration. In this sense grossly improper or unbecoming conduct in public life may also become misconduct and may render an officer liable for disciplinary action therefore.[Gulam Mohiuddin vs. State of W.B., A.I.R 1964 Cal.503]It is not necessary that the alleged act or omission by a member of service should be committed in the course of discharge of his duties as a servant of the Government of India, in order that it may form the subject matter of disciplinary proceedings. The existence of relationship of master and servant is not necessary for taking disciplinary action against a person in service.[(Govind Menon vs. Union of India A.I.R 1967 S.C.1274)]Misconduct is something more than negligence. It is the intentional doing of something, which the doer knows to be wrong, or which he does recklessly not caring what the result may be.(Rasabathi Bewa and another vs. Union of India, AIR 1961 Orissa 113)The web site of Punjab National Bank, a nationalised bank of All India standing, defines misconduct through enumeration (not through content description) and lists vigilance cases as those involving any of the following:

1. Commission of criminal offences like demand and acceptance of illegal gratification, possession of disproportionate assets, forgery, cheating,

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abuse of official position with a view to obtaining pecuniary advantage for self or for any other person; or

2. Irregularities reflecting adversely on the integrity of the public servant; or

3. Lapses involving any of the following:a. Gross or willful negligence; b. Recklessness; c. Failure to report to competent authorities, exercise of discretion

without or in excess of powers/jurisdiction; d. Cause of undue loss or a concomitant gain to an individual or a

set of individuals/a party or parties; and e. Flagrant violation of systems and procedures.

Following cases would also be perceived to have vigilance overtones and invite major penalty:

a. Cases in which there is a reasonable ground to believe that a penal offence has been committed by a govt. servant but the evidence forthcoming is not sufficient for prosecution in a court of law, e.g.

b. Possession of disproportionate assets; c. Obtaining or attempting to obtain illegal gratification; d. Misappropriation of govt. property, money or stores; e. Obtaining or attempting to obtain any valuable thing or pecuniary

advantage without consideration or for a consideration which is not adequate.

f. Falsification of govt. records; g. The cases involving any of the lapses such as gross or willful

negligence, recklessness, exercise of discretion without or in excess of powers/jurisdiction, causing undue loss to the organization or a concomitant gain to an individual and flagrant violation of systems and procedures.

h. Misuse of official position or power for personal gain; i. Disclosure of secret or confidential information even though it does not

fall strictly within the scope of the Official Secrets Act. j. False claims on the govt. like TA claims, reimbursement claims etc.

The criteria indicated above for determination of a vigilance angle in a case would exclude all cases of misdemeanors in personal life. Administrative misconduct such as unpunctuality, drunken behaviour at work etc. would again be left to the disciplinary authority to deal with in an appropriate manner. (These are deemed as "misconduct without vigilance angle" or "Administrative lapses")The Chief Vigilance Officer has been authorised to decide upon the existence of a vigilance angle in a particular case, at the time of registration of the

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complaint. Once a complaint has been registered as a vigilance case, it will have to be treated as such till its conclusion, irrespective of the outcome of the investigation."Besides the written code of conduct specified in the rules framed by the Government or other conduct regulation of Statutory Corporations, there is also an unwritten code of conduct governing the government servants/public servants in their official and private life. This is because the term being of a generic nature, it carries sweeping implication and cannot be specified with exactitude for all time to come. Whatever cannot be accepted as good conduct may fall with this term. This is brought out by the following case law.While the government servants conduct rules purport to describe the various kinds of misconduct, which a civil servant may commit, and for which departmental action may be taken against him, yet in the very nature of things the conduct rules cannot be exhaustive of every conceivable kind of misconduct that may be committed by the civil servant. Ultimately what should be regarded as misconduct on the part will have to be decided by the government keeping in view the nature of relationship as master and servant.(A.R.R.Deshpande vs. Union of India and others, 1971WLR 776-DEL) Does Inefficiency or Negligence in Performance of Duties Constitute Misconduct? Lack of efficiency or failure to attain the highest standard of administrative ability while holding a high post would not by themselves constitute misconduct. If it were so every officer rated average would be guilty of misconduct. It is the duty of the employer to screen the candidates properly, rate his skill and efficiency and then select him for a contract of employment. It is also the employer's duty to provide need based training and skill development to the employee to enable him attain the level of efficiency. However the employee is responsible for his acts of negligence in the performance of his duty and has to compensate any loss caused by to the employer on account thereof.However gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings. (Union of India vs. Shri J.Ahmed S.L.R. 1979 840 S.C) Lack of Diligence and Lack of Faith Employment is a contract of utmost good faith. Employer assumes and depends on the personal integrity, skill and efficiency of the employee. The contract of employment is based on these assumptions. But while a single instance of lack of faith may break the contract and even lead to its termination through dismissal of the employee, solitary cases of negligence rarely shown in performance will not be deemed a misconduct, though the employee may have to make good any loss caused to the employer on account of his negligence in duty (e.g. a receiving cashier in a bank will have to make good any loss or shortage in his cash receipts occasioned on account of his negligence, even if occasioned on a single instance.)

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The contract of employment presupposes two basic attributes of the employee i.e. reliability (dependability or trustworthiness) and utility (based on suitability and efficiency). When either of the core attributes are missing the employee faces misery. But there is a subtle difference between loyalty and efficiency. Disloyalty makes the employee unfit for continuance. This is the barest minimum that an employee should possess. The employee who is not loyal cannot be deemed to carry out his functions in good faith or to perform his duties always in the best interests of the employer. Bad faith represents a vicious state of the mind or illness of the mind. Here the unreliable mind makes the employee not suitable for the employment. This includes not only vigilance-based misconduct, but also willful neglect or willful insubordination etc. Such employee may set a wrong example to other sober and upright members and may set in process a continuous insidious influence. DA Regulations is the fitting answer for dealing with these employees. It will have preventive effect, if these employees are terminated from their service by way of punishment. Once out of employment the concerned ex-employee no longer possesses the opportunity to misbehave. It is also preventive because, it is a loud message to the remaining employees, that if ever anyone of them were to follow the example, the same fate awaits them. The punishment here acts as deterrence. Habitual negligence or gross negligence also comes under this category. Employee, who has once erred and counseled or warned, fails to correct himself and repeats the same mistake again and again. Thus he commits habitual negligence. He lacks the capacity for self-correction and to benefit from counsel. Similarly if an employee were to show abnormal negligence in the performance of his duty resulting in harm, injury not only to the employer, but can also to third parties, this is gross negligence. A normal person of prudence has to respect laws of safety, and when he fails to come to this essential standard or safeguard, he is deemed as "criminally negligent"However misconduct involving other types of omissions caused due to lack of knowledge, lack of efficiency, error in judgment etc. or not intentionally caused. Technically they are not misconduct, but inefficient or sub-standard performance. Lack of competency is not a misconduct, though a serious disability in terms of suitability for service. It has to be properly dealt with administratively. In the first place the root-cause why the employee has committed the lapse or omission has to be inquired into. It is also possible that imperfect systems or procedures may also lead to omissions.A comprehensive list of misdeeds that will constitute misconduct is given in the case law [T.Modi vs. State of Bombay, AIR 1962 Guj, 197) with a rider that the enumeration is not exhaustive. This is reproduced below:

1. Where the act or conduct of the servant is prejudicial or likely to be prejudicial to the interests of the master or to the reputation of the master;

2. Where the act or conduct of a servant is inconsistent or in compatible with the due discharge of his duties to the master;

3. Where the act or conduct of a servant makes it unsafe for the employer to retain him in service;

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4. Where the act or conduct of a servant is so grossly immoral that all reasonable men will say that the employee cannot be trusted;

5. Where the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;

6. Where the servant is abusive or he disturbs the peace at the place of his employment;

7. Where the act or conduct of the employee is such as to open before him temptations for not discharging his duties properly;

8. Where the servant is insulting and insubordinate to such a degree as to be incompatible with the continuance of the relations of master and servant;

9. Where the servant is habitually negligent in respect of the duties for which he is engaged; and Where the neglect of the servant, though isolated, tends to cause serious consequences.

Salient Provisions of the Code of Conduct of Civil/Public Servants The following Rules are generally included to form the core of a public servant's responsibility and find a place in most of the conduct regulations. This particular extract is from All India Services (Conduct) Rules 1968. Parallel provisions find a place in PNB Officer Employees (Conduct) Regulations 1977.

1. Every member of the service shall at all times maintain absolute integrity and devotion to duty and shall do nothing, which is unbecoming of a member of the service.

2. Every member of the service shall take all possible steps to ensure integrity of and devotion to duty by, all Government servants for the time being under his control and authority.

3. No member of service shall, in the performance of his official duties, or in the exercise of his powers conferred on him, act otherwise than in his own best judgment to be true and correct except when he is acting under the direction of his official superior.

4. The direction of the official superior shall ordinarily be in writing. Where the issue of oral direction becomes unavoidable, the official superior shall confirm in writing immediately thereafter.

5. A member of the Service who has received oral direction from his official superior shall seek confirmation of the same in writing, as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.

Rule No.3 (i) not to be Used Indiscriminately Rule 3(i) expressed above is too wide. It can be used to cover all types of omissions, many of which can be of a trivial nature. In an Office Memorandum, dated 8th February 1977, the Department of Personnel and Administrative Reforms, Government of India, clarified as under:"Rule 3(i) of the Central Civil Services (Conduct) Rules, 1964 provides that a Government servant shall at all times maintain absolute integrity and

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devotion to duty and do nothing unbecoming of a Government servant. This rule serves the specific purposes of covering acts of misconduct not covered by other specific provisions of the Rules. It is therefore necessary that the disciplinary authorities should first satisfy themselves that the alleged acts of misconduct do not attract the provisions of any specific rule before taking recourse to Rule 3(i) ibid. Where action is taken under Rule 3(i) particularly on grounds of unbecoming conduct special care should be taken to eliminate cases of trivial nature. Supervisory officers should look into this matter during periodic inspections and ensure that disciplinary proceedings under Rule 3(i) are not initiated on grounds, which are unjustified".

Types of Misconduct - Vigilance and Administrative Lapses We can understand the concept of misconduct in public service better by classifying misconduct under distinctive categories. Public organizations classify misconduct as -

1. Administrative misconduct or misbehavior, or disobedience to lawful orders of superiors as it is termed.

2. Technical or procedural lapses, i.e. defective execution of work 3. Vigilance lapses involving moral turpitude i.e. disloyalty or infidelity

exhibited in service performance. (either under prosecution or departmental Inquiry)

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Administrative Lapses or MisbehaviorIt is a case of disobedience of lawful authority or refusal by an employee to obey or comply with orders of superiors or non-adherence to conduct rules of the organization etc. Administrative misconduct is visible at the point of its occurrence and is reflected within the events, in which it takes place, generally as part of a single transaction or event like challenging the due authority of a superior by a subordinate, disobedience or refusal to carry out properly delegated duties, riotous behaviour, use of intemperate language, discourtesy shown to customers of the organization, late attendance, absence without leave etc. The hierarchical structure of administration depends on the smooth flow of commands from the top- stage by stage downwards. In this chain there can be no halting or obstructing points. If the flow stops at a particular point, there can be chain of effects and the entire system may cease to function properly. The strength of a chain made of several rings is equal to the strength of its weakest ring. A single bad worker may spoil the performance of an entire organization. Normally instances of this misconduct occur at the junior levels of the organization, i.e. amongst the operating staff.Both public and private sector organizations recognize the need for putting down with deterrent punishment instances of such misbehaviour at the incipient level. It is essential to handle this phenomenon with such determination so that the climate that breeds this menace is not allowed to stretch within the organization and spread its disastrous effects. Unchecked misbehaviour on the part of a few employees can corrupt the system and end finally with the law of the jungle to engulf in the organization. This situation prevailed in the mid-seventies in certain organizations in West Bengal and Bihar infested with multiplicity of rival trade unions.Effective measures to prevent this tendency from emerging are necessary and it must be directed diligently, through positive and preventive measures. Positive measures include the creation of better work atmosphere like provision of physical, environmental, and psychological amenities, intended to improve work efficiency. Employee motivation and developing a sense of belonging to the Institution amongst the workers is necessary to be created. Effective leadership and not bossism is the answer. All progressive corporate organizations depend on this preventive strategy, to effectively tackle this problem. Preventive steps include strict enforcement of discipline and imposing deterrent punishment on violators including dismissal from service. The imminent and sure threat of punishment and fear of loss of job acts as a deterrent, and an employee will think twice before stooping to take the law into his hands.Technical or Procedural LapsesTechnical or procedural lapses occur at the operational and supervisory levels due to ignorance, negligence, laziness or inefficiency in the performance of duties. Employee is entrusted to fabricate a product, but he generates a scrap. Though his intention was to produce the product, it was due to his imperfect knowledge or skill, or negligence or inefficiency the work

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turns into a scrap instead of a quality product. This is a technical or procedural lapse These normally are not occasioned on account of willful intent, but due to failure on the part of the employee to come up to the required level of efficiency and standards of performance. By way of an example the rules of the organization require reminders to be sent to all overdue debtors for more than 30 days. On account of slackness to observe this formality by an employee, debtor outstanding piles up for more than 60 days and swells to an astronomical figure undermining financial liquidity of the organization. This is a lapse and this lapse also adversely affects the interests of the organization. The reason for this lapse is negligence or slackness in the performance by an individual entrusted with this duty. There is no willful intention to violate any rule, but faulty performance due to ignorance, oversight or negligence. Though this is an administrative lapse, this should not be normally treated as misconduct, unless

Where it is habitually committed or Such negligence results in substantial loss to the employer or Injury and loss to any 3rd parties in the course of performance of the

job.Progressive and professionally managed organizations adopt the preventive approach with referenced to procedural lapses and aim at securing zero-error percent performance. The tool of charge sheet and departmental enquiry are not resorted to. But in many public sector organizations like Nationalized Banks, charge sheeting of employees is resorted to for such lapses as a matter of routine and punishments are inflicted on them. This does not appear to be an effective remedy. In fact it acts counterproductive. "MR so and so… has committed two mistakes and we have stopped his one increment," observed the administrative manager. "Oh this makes your organization to gain the amount equal to the sum of his one increment as a profit, but it also results in the partial or total loss of the sum of his entire future salary. As a consequence of this punishment, he is going to be frustrated and demotivated. In my opinion this is penny wise and pound foolish, as you have gained a part and lost of the total" is the answer of the HRD Manager. This statement does carry an element of truth. The employee is a part of the organization, and one does not ampute a part of the body unless it is totally damaged and thus is inevitable. Pre-placement training on the job will test the suitability of the employee for the job. If the employee is suitable for the job, he should be placed therein, otherwise placing him initially and thereafter charge sheeting him is not an ideal situation, as it serves the purposes neither of the employee, nor of the organization. These charge sheets are simply a helpless bureaucratic response to escape from a situation of plethora of failures and omissions that confront in an imperfect set up of an organization. Mend your tools and do not blame them. Can a surgeon or any of his assistants performing a heart surgery commit a procedural lapse? Can a pilot flying an aircraft with passengers on board commit an operational mistake? These are real life situations, where zero level failure has to be perforce ensured. Why not accept this goal universally to all business operations? The mission of zero level procedural lapses should

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be accepted as a Quality Norm and accepted jointly by the employer and the employees as their common goal.Categories of Negligence Based on the Severity of the Damage CausedEmployee negligence may sometimes merely result in a simple inconvenience or delay to the organization. It may, in other circumstances result in minor or substantial damage or financial loss. In extreme cases it may also lead to unfortunate and major inconvenience or damage to customers or to third parties, including physical injury to their body or loss of their lives.Gross negligence is legally defined as the omission to do something which the reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would not do, or do something which a prudent and reasonable man would not. Negligence under the civil law, whether causing harm short of death or death is fairly well defined and compensatory damages awarded to restore, as far as possible, the sufferer or his relatives by monetary award, as satisfaction for the harm caused. However, under the criminal law, negligence resulting in death may jeopardize the future of an employee beyond the punishment he has to suffer.The short title of Section 304-A of The Indian Penal Code reads: "Causing death by negligence" The full section says - "Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."Vigilance Lapses Involving Moral Turpitude When an employs fails to adhere to standards of loyalty and fidelity, or commits crimes under the Prevention of Corruption Act, or IPC he is no longer an asset, but a liability to the organization. He forfeits his good conscience and violates ethical norms to the detriment of the interests of the organization or to gain an undue benefit for himself. In this case, he is committing vigilance misconduct. Stray instances of bad judgment otherwise taken in bonafide circumstances can be condoned, but not a single instance of bad faith. Employment is a contract of utmost good faith. The employee is trusted upon and entrusted custody of valuable resources and sensitive data belonging to the organization as part of his job responsibilities. Breach of trust by the employee may render the organization to immense damage and jeopardy. Vigilance lapses are on account of an illegal intent of the mind. It is based on a reverse role, employee acting on unethical selfish motives to the detriment of the organization he is serving. Punishment here can be two-fold. Initially it may be from the employer resulting in dismissal and termination of the contract of employment, but ultimately it may also be from the law enforcing authority under the Indian Penal Code and in respect of public servants also under the Prevention of Corruption Act. As employment is based on utmost good faith, loyalty to the Organization is the bedrock of a service contract. There can be no role conflict in the performance of the

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duties. It should be with intent exclusively for protecting, safeguarding and promoting the interests of the organization.

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Disciplinary Action/Punishment vs. Employee MoraleWhen action is taken on an employee for committing misbehavior like refusal to obey administrative orders or for action involving moral turpitude like embezzlement etc., the other employees will not look at these actions with disfavour and hence these will not create an atmosphere of demoralization within an organization. A clearly visible misconduct willfully committed by the employee, as the cause and the consequent punishment as the effect are seen together and viewed by the other employees as a logical and justifiable development. It also forewarns them and acts as a deterrent from committal of such offences on their part.But the position with reference to procedural lapses and consequent punishment inflicted for such lapses, other than those involving gross negligence resulting in serious damage, or chronic cases of employees habitually committing such lapses, falls on a different setting. In many cases there may not a willful committal of misconduct by the employee. The employee may not be even aware that a lapse has taken place in his performance. "If I do not take action on this file for six months, I face no problem, but if I take some steps and there creeps a controversy over an expenditure of even a very small amount incurred though with no wrongful intent on my part, I will be in trouble". This explains the situation. Non-performance is not punished, but performance with unintentional errors, though done sincerely, it is feared, will be penalized.The risk is more while taking decisions. This leads to the belief that taking bold decisions is risky and playing the line of least resistance is safer. Indecision and procrastination come to rule the mindset of the employees consequently. This may in turn lead to poor customer service and consequent business stagnation.Employees called upon to take critical decisions for the organization exercising powers delegated to them should follow a structured procedure. Proper records should be maintained giving the circumstances justifying that the decision taken is bonafide and was taken in the best interests of the organization when it was taken, after due consideration and taking into account all known aspects. A public servant is not only to be honest, but also should be seen to be honest. When called upon he must be in a position to satisfactorily explain his conduct and vindicate himself.But where it is considered expedient to charge sheet the employee, the procedure for investigation, charge sheet and oral enquiry should be initiated.

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CHAPTER- 4PRELIMINARY INVESTIGATION /INQUIRY

BASIS FOR DISCIPLINARY PROCEEDINGSDisciplinary proceedings are instituted commonly on the basis of material secured in what is known as a preliminary enquiry conducted by the department on receipt of a complaint and at times on the basis of a well-documented allegation straight away without conducting a preliminary enquiry. Disciplinary proceedings are taken up also as an outcome of an enquiry or investigation conducted by the Anti-Corruption Bureau or any other investigating agency.Disciplinary proceedings are not exploratory; prima facie material should be available for their institution. The basis of initiation of disciplinary proceedings cannot be questioned. There is no question of failure to follow procedure as no procedure is prescribed for preliminary investigation. The Government servant has no right of being heard or any other right during the preliminary enquiry stageThe material secured during the preliminary enquiry however, cannot be the basis for imposing a penalty; it can be the basis only for deciding the course of action, whether to drop action or start action.It may be noted that ‘enquiry’ in ‘preliminary enquiry’ is spelt with the letter ’e’ while ‘inquiry’ in ‘regular inquiry’ is spelt with the letter ‘i’ as a standard practice in jurisprudence, and ‘enquiry’ indicates enquiry conduced prior to institution of formal proceedings while ‘inquiry’ indicates regular inquiry conducted after institution of the disciplinary proceedings.

PURPOSE AND NEED OF PRELIMINARY INVESTIGATIONMisconduct in employment falls under two distinct categories viz.

cases having a vigilance angle and cases not having a vigilance angle. Allegation of bribery, corruption, forgery, falsification of records, submission of false claims, possession of assets disproportionate to known sources of

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income, etc. are known as cases having a vigilance angle. Cases such as unauthorised absence, lack of devotion to duty, insubordination, etc. are known as cases not having a vigilance angle. The classification of cases on this basis is relevant from the angle of consultation with the Central Vigilance Commission.

The basic purpose for holding a preliminary inquiry/investigation is to find our complete facts with a view to coming to a decision whether a prima facie case is made out against the suspected employee. Now a prima facie case does not mean that the suspected employee is in fact guilty. It only means that on the basis of the evidence collected, it is likely that he may have committed the misconduct which calls for a regular departmental inquiry after issuing a formal charge sheet. The departmental inquiry after issuing a formal charge sheet. The Supreme Court of India in the case Martin Burn Ltd. V R. N. Banerjee, AIR 1958 SC 79 has defined a prima facie case in the following terms:

“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence which is led in support of the same were believed. While determining whether a prima facie case has been made out the relevant consideration is whether on the evidence let it was possible that was the only conclusion which could be arrived at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence.”

Hence in coming to a conclusion whether a prima facie case is made out or not, the possibility is weighed and not whether that is the only conclusion that could be arrived at on that evidence. This brings to focus the difference between a preliminary inquiry and a formal departmental inquiry held under the CCS(CCA) Rules, 1965 and other such corresponding rules of Public Sector Undertakings, Corporations or Public Companies.

DEFFERENCE BETWEEN PRELIMINARY INQUIRY AND DEPARTMENTAL INQUIRY UNDER DISCIPLINE RULES

A preliminary inquiry is basically a fact finding inquiry to help the competent disciplinary authority to come to a conclusion whether a charge sheet under Rule 16 (Mi nor penalty) or under Rule 14 (major penalty) or other corresponding rules is at all required to be issued on the basis of facts and circumstances required to be issued on the basis of facts and circumstances revealed as a result of the preliminary inquiry. A formal departmental inquiry is however, held after the issue of a charge sheet where the delinquent employee has denied the charges either wholly or partially or has not submitted a reply to the charge sheet and the time for submitting the reply has already elapsed.

Holding of preliminary inquiry/investigation is not a pre-condition for issue of a charge sheet. Hence where the role of the delinquent employee and his misconduct are apparent on the face of the record, charge sheet can

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be issued without holding a preliminary inquiry. However, in complicated cases where the role of the suspected employee is not clear or it overlaps with the roles of other employees, it is advisable to hold preliminary inquiry to pin point responsibility or determine the precise role of the suspected employee before coming to a conclusion to charge sheet him either under Rule 16 of CCS(CCA) Rules, 1965 or any other corresponding Rule for imposition of a minor penalty or under 14 ibid i.e. for major penalty.

SOURCES OF INFORMATION ABOUT MALPRACTICE/CORRUPTION /MISCONDUCT

Information relating the misconduct of employees may be gathered by the disciplinary authority from a number of sources. Such sources of information are known as complaint. In the context of disciplinary proceedings, even a press report or an audit report providing information about the misconduct of an employee will be treated as a letter of complaint. Generally, a disciplinary case commences with the receipt of a complaint. The complaint may or may not, contain verifiable allegation against a government servant. In the latter event, the contents of the complaint may have to be examined so as to determine as to whether there is any prima facie case against any employee. This process is known as Preliminary Investigation. Preliminary investigation is also used for collecting evidence against the Suspected Public Servant (SPS). Depending upon the nature of the case, the matter may be referred to the CBI (at the level of the Chief Vigilance Officer), or to the local police authorities or may be departmentally investigated. Departmental preliminary investigation is carried out when the allegation relates to misconduct other than a criminal offence and the same is capable of verification within the department. In case, the investigation of the complaint calls for the exercise of police powers, the same must be handed over to the police or the CBI.

Complaints are the main source of information about malpractices, corruption on the part of the public servants. Complaints may be received from :i) Members of public;ii) Public associations/organizations;iii) Members of parliament/Legislatures; and iv) Government servants etc.

Complaints can be anonymous or pseudonymous. Normally, anonymous complaints are ignored as experience shows that majority of such complaints are not a reliable source of information. These are generally false and malicious. Indiscriminate inquiries into such complaints are likely to adversely affect the morale of the employees. A pseudonymous complaints is one which is purportedly signed by a person who does not either exist or if he exists, he has not actually made the complaint which is made by an unknown person in the name of that person. Whenever a doubt arises, whether the complaint is a signed complaint or a pseudonymous one, the complaint should be addressed by registered post to find out whether he has made the said complaint and if he would be in a position to furnish evidence to substantiate the allegation. If the envelope is received back, it will be a

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case of pseudonymous complaint. It should, therefore, be ignored. If the complaint responds, the complaint can be looked into depending on the response and the nature of the allegations. The C.V.C has not precluded itself from taking cognisance of any complaint whether action is warranted according to the Commission. Central Vigilance Commission does not have machinery of investigation of their own and hence the complaints are sent either to the Department or C.B.I. for investigation who will undertake the investigation and report the result to the Commission for advice.The other sources of information about malpractice, corruption, misconduct etc are:

i) Complaints received by the Central Vigilance Commission;ii) Complaints received by the C.B.I.;iii) Information gathered by C.B.I., commonly known as ‘source

information’;iv) Departmental inspections, surprise checks, audit reports;v) Reports of Parliamentary Committees such as Estimates Committee,

Public Accounts Committee or the committee on Public Undertakings;

vi) Proceedings of Parliament (both houses); and vii) Press reports about malpractices.

WHEN TO ORDER DEPARTMENTAL INVESTIGATIONWhatever be the source of information, it must be studied very closely

to decide whether it calls for ordering a departmental investigation. Vague and anonymous complaints should be filed. If the complaint is a signed one, but it is vague, the complainant should be contacted to gather more information. A surprise check may reveal useful clues. A close surveillance over the suspected person without his knowledge may yield good results in the shape of cogent evidence.

A departmental investigation may be ordered where allegations relate to:

i) A misconduct other than an offence;ii) A departmental irregularity;iii) A breach of orders, rules, regulations, administrative instructions or

accepted procedures;iv) Negligence; andv) A case in which the alleged facts are verifiable departmentally.

Departmentally verifiable facts are those facts which can be verified either from the documents available in the department itself or from another department of the Government, Public Sector Undertaking, Government Company or any other organization which is under the control of the Government or from persons working in any of the above mentioned organizations.PRELIMINARY INVESTIGATION STAGE

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Before commencing preliminary investigation departmentally, generally the complainant may be contacted to provide evidence if any at his disposal in support of the allegations made by him.Preliminary Investigation may be carried out either by the Vigilance Officer himself or it may be handed over to any other officer. In either case, the Officer carrying out Preliminary Investigation should sufficient knowledge about the subject relating to the complaint. He should be conversant with not only the rules and regulations relating to the transaction but also the procedures and practices. The preliminary Investigation Officer should identify the documents required for verifying the allegations and the persons who can throw light in the matter. After chalking out the programme, in one swift move, all the documents required should be brought within his custody. Once the persons concerned become aware of the fact that misconduct is being investigated, it is likely that they will attempt to tamper with the records and eliminate evidence. To obviate this, the Preliminary Investigation Officer should maintain absolute confidentiality and act swiftly. The persons who can provide information must be contacted and tactfully interrogated. Their statements should be recorded and signatures obtained. In case the persons whose conduct is being investigated are in custody of the records or other evidence required for the investigation and there is a possibility of the evidence being tampered, it is appropriate to consider their transfer.

It is not mandatory to contact the Suspected Public Servant during the Preliminary Investigation. However, there is no ban on contacting him either. A decision in this regard will have to be taken by the Preliminary Investigation Officer, depending upon the nature of the case. In this connection, it is worth considering that at times, the SPS, being the person most familiar with the case, may be able to give a satisfactory explanation in respect of the allegation. If the explanation given by the SPS is satisfactory, then it may save the unnecessary effort in the preparation of Charge Sheet, conducting the Inquiry, etc. and then dropping the charges. The long period of uncertainty during which the individual concerned will be tense and de-motivated will result in loss to the organization also.20. On conclusion of the Investigation, the Preliminary Investigation Officer is required to submit a report which will contain the facts collected by him and an analysis of the same. He is also required to indicate as to whether a prima facie case is established or not. The report should specifically indicate as to whether an opportunity was offered to the SPS, if so whether he availed the same. The report together with the documents collected in the course of the Preliminary Investigation should be submitted to the Disciplinary Authority who will take a decision as to whether disciplinary action should be initiated against the SPS.

If the case is one having vigilance angle and the officer involved is a Category A Officer, the disciplinary Authority should forward the Preliminary Investigation report and other documents to the Central Vigilance

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Commission, through the Chief Vigilance Officer and obtain First Stage Advice. Types of cases to be entrusted to central bureau of investigation

Generally, the following types of cases can be entrusted to the Central Bureau of Investigation or the anti-corruption branch of a State Government or a Union Territory:

(i) Allegations involving offences under the Prevention of Corruption Act, 1988 like bribery, forgery, cheating criminal breach of trust, corruption, falsification of records etc,;

(ii) Possession of assets beyond known sources of income;(iii) Allegations which involve inquiries from non official persons or

examination of non-government records such as books of accounts etc.; and

(iv) Cases of complicated nature which call for expert investigation.The Central Bureau of Investigation generally investigate cases of

corruption, bribery, assets disproportionate to known sources of income, corrupt practices, criminal breach of trust etc. in respect of the employee of the Union government and its Public Sector undertakings, however, the Central Government has the power to refer any other case to the C.B.I. involving other off offences for investigation. Whenever a case is referred to C.B.I., investigation should be left to them and departmental authorities should desist from further investigation departmentally.

Investigations entrusted to Local policeIn the case of offences which do not fall within the purview of the

Central Bureau of Investigation, it is advisable to register an FIR with the local police. Such cases can be where outside parties are involved and it is considered necessary to examine such parties. It is well known that the departmental officers, howsoever high position they may be holding, do not have police powers to examine such persons or to force them to give a statement. Very often non-official witnesses do not co-operate with the departmental officers and hence investigation cannot make much headway in such cases. It would be advantageous to refer such cases to the local police for investigation.

WHO CAN INVESTIGATE DEPARTMENTALLY?Preliminary inquiry/investigation can be carried out by the Chief

Vigilance Officer/Vigilance officer or Disciplinary Authority or an Investigation Officer where a cadre of such officers exists or by any other suitable officer who can be entrusted with the job or investigation. While choosing an officer, it should be ensured that he possesses the following essential qualities:-

(i) That he should be sufficient senior in rank to the suspect-officer so as to command respect;

(ii) That he should, as far as possible, have the specialized knowledge of the subject matter under investigation. If this is not

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possible, he should acquire such knowledge either by consulting the knowledgeable persons in the subject or by referring to authentic literature relating to the subject matter;

(iii) That he should be person capable of dispassionate and objective analysis of evidence;

(iv) That he should be a person endowed with an open mind, cool thinking, sound judgment and should not be easily swayed by motions so as to jump to hasty conclusions;

(v) That he should be conversant with the techniques of investigation and should know the art of examining the witnesses; and

(vi) That he should not only be honest and above board, he should enjoy such a reputation.

Steps in conduct of preliminary investigation:

1. Decide who will conduct the investigation2. Collect original documents required to substantiate the charge if

framed3. Examine the potential witnesses and obtain their signed statements4. Examine the suspected public servant (SPS) if so decided5. Prepare a cogent (analysing the evidence for and against) report and

enclose all the documents and statements of the witnesses and SPS, if any.

6. Forward the report to the Disciplinary Authority for further action7. The disciplinary Authority has to independently come to a conclusion

whether a prima facie case is made out against the SPS

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CHAPTER-5PENALTIES

Rule 11 of the CCS (CCA) Rules, 1965 lists nine penalties which may, for good and sufficient reasons, be imposed on a Government servant. These nine penalties have further been divided into ‘minor penalties’ and ‘major penalties’. A minor penalty can be imposed without following the procedure of holding an inquiry unless otherwise provided in the statutory rules because the provisions of Article 311(2) of the constitution of India are not attracted. On the other hand a major penalty can be imposed only after following the prescribed procedure under Rule-14, however, Rule 16(1-A) provides –

Notwithstanding anything contained in Clause (b) of sub-rule (1), if in a case it is proposed after considering the representation, if any, made by the Govt. servant or to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period, an inquiry shall be held in the manner laid down in sub-rules (3) to (23) of Rule-14, before making any order imposing on the Govt. servant any such penalty. The penalties under Rule-11 are as under:-Minor Penalties

i) Censure;ii) Withholding of his promotion;

iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Govt. 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 not exceeding three years, without cumulative effect and not adversely affecting his pension (Added vide Deptt. of Personnel and Training O.M. No.11012/4/86-Estt.(A) dated 13th

July, 1990);iv) Withholding of increments of pay;

Major Penaltiesv) Reduction to a lower stage in the time scale of pay for a specific

period, with further directions as to whether or not the Govt. 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 further increments of his pay;

vi) Reduction to lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion of the Govt. 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 which the Govt. Servant was reduced and his

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seniority and pay on such restoration to that grade, post or service;

vii) Compulsory retirement;viii) Removal from service which shall not be a disqualification for further employment under the Govt.;ix) Dismissal from service which shall ordinarily be a disqualification

for further employment under the Govt.Provided that, in every case in which the charge of possession of

assets disproportionate to known sources of income or 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 is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed.

Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.Explanation

The penalties mentioned above are graded and normally there should be occasion to impose more then one penalty for a particular misconduct. The necessity to award penalty in conjunction with penalty of recovery should arise only when it is considered absolutely necessary.

CENSURE – WARNING – RECORDABLE WARNING – REPRIMAND

CENSURE – An order of ‘censure’ is a formal and public act intended to convey that the person concerned has been guilty of some blame worthy act or omission for which it has been found necessary to award him a formal punishment. ‘Censure’ is the minimum formal punishment that can be awarded. It is necessary to follow the procedure laid down in Rule-16 of the CCS (CCA) Rules, 1965 to impose a penalty of ‘censure’. A record of this punishment is kept in the confidential roll of the official.WARNING – A warning is an informal action by a superior officer against a Govt. servant for an act which has been done by him and which is either against the objectives of the organisation or is otherwise not acceptable. It is normally to point out negligence, carelessness, delay etc. A note of warning is not normally kept in the confidential roll of the Govt. servant.RECORDABLE WARNING – Where it is intended that note of warning is kept in the confidential roll of the officer, it is called ‘recordable warning’.REPRIMAND – Like warning, reprimand or admonition is also an informal act to criticise adversely the work of an officer. A note of reprimand is also not kept in confidential roll of the officer. DISMISSAL, REMOVAL AND TERMINATION

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The words ‘dismissal and ‘removal’ are used in the service rules in technical sense and represent two major penalties that can be imposed on a Govt. servant for good and sufficient reasons.

Therefore, where termination of service is ordered due to application of service rules or the contract of service and not by way of punishment, Article 311 has no application. However, both in ‘removal’ and dismissal’ the services of the officer are terminated but by way of punishment for misconduct. The removal from service shall not be a disqualification for future employment under the Govt. Dismissal on the other hand is the extreme penalty that can be imposed on a Govt. servant and the Govt. servant is disqualified for future service under the Govt. except in very exceptional circumstances like national emergency or any other such contingency.

A Govt. servant, who is either ‘dismissed’ or ‘removed’ from service is not entitled to pensionary benefits.Can a Govt. servant be reduced in rank to a post which he never held before? The Supreme Court have held that a person appointed directly to a higher post, service grade or time-scale of pay cannot be reduced by way of punishment to a post in lower time-scale, grade, service or to a post which he never held before.

Implementation of second penalty imposed during the currency of first penalty – A question is often raised as to how the penalties imposed on a Govt. servant are to be implemented when the punishment awarded to him against the earlier proceedings is already in currency. In other words, when the first penalty imposed against the Govt. Servant is of a lower grade and the second penalty of higher grade is imposed against him during the currency of the first penalty, the normal procedure should be that when any disciplinary case crops up during the currency of an earlier penalty, the disciplinary authority should clearly indicate in the punishment order whether the two penalties should run concurrently or the subsequent penalty should be implemented only after the expiry of the first penalty. It has been decided that where, however, such a specific mention has not been made, the two punishments should run concurrently and the higher penalty, even though ordered later, should be implemented immediately and after the expiry of its period, if the currency of the period of the earlier punishment, i.e. lower penalty, still continues, then the same may be implemented for the balance period.

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CHAPTER- 6DISCIPLINARY AUTHORITY

1. Rule 2 (g) of the CCS (CCA) Rules 1965 defined DA as under ‘Disciplinary authority means the authority competent under these rules to impose on a Government servant any of the penalties specified in Rule 11.’

This means that if an authority is competent to impose any one of the nine penalties mentioned in Rule 11, it will be called a disciplinary authority.

2. Act 311 (1) enjoins that an employee cannot be removed or dismissed from the service by an authority subordinate to that by which he was appointed.

It flows from the above article that the appointing authority is also disciplinary authority. Further every Appointing authority is a disciplinary authority but every disciplinary authority may not be appointing authority. The appointing and disciplinary authorities in KVS have been specified in scheduled II of the Appointment Promotion, Seniority etc. Rules 1971 vide which

a) Assistant commissioner of the Region is Disciplinary Authority for Principals and Vice-Principals for minor penalties and for all penalties for PGT’s and other Group ‘C’ employees in Regional Offices and Kendriya Vidyalayas. He is also DA for sub-staff posts in RO for all the penalties.

b) Education Officer is disciplinary authority for minor penalties for PGT’s and Group ‘C’ posts in Kendriya Vidyalayas.

c) Principal is Disciplinary Authority for Sub-staff in Kendriya Vidyalayas for all the penalties and for minor penalties for PGT’s and Group ‘C’ posts both Teaching and non teaching in Kendriya Vidyalayas

3. Rule 13 (2) of CCS (CCA) Rule,1965 permits the authority to impose only minor penalty to institute enquiry for major penalty but penalty will be imposed by the competent authority only.

4. If an authority compete to impose only minor penalty and if it comes to the conclusion at the end of the proceedings that it is a fit case for major penalty he will, forward the records to the competent authority for major penalties, for necessary action deemed fit.

(a) If the authority competent for major penalty comes to the conclusion for minor penalty, he shall impose the same and will not return the case to the authority, which initiated proceedings for minor penalty. For major penalty de- novo proceeding to be initiated Rule 14.

6. An officer who is merely looking after the current duties of a higher officer is not competent to exercise disciplinary or appellate powers of the latter, if he himself is not vested with such concurrent powers in his own past.

Ad hoc Disciplinary authority is generally appointed where the prescribed AA/DA is unable to function as DA for an official.

a) On account of his being personally concerned with the charges; orb) Being a material witness in support of the change.

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From the above the Principal of natural justice demands, the above provision will be applicable when the

1) The disciplinary authority is himself a complainant; or 2) He is prosecution witness; or3) He is intimately concerned with the subject matter. In such case

recourse should be taken to get ad-hoc DA appointment7. There is no bar for authority who conducted preliminary enquiry to function as DA provided it has not openly given out its findings about the guilt of the accused official.8. A penalty can be imposed only by prescribed punishing authority Appellate authority or any other higher authority cannot give direction to the punishing authority in regard to the penalty imposed. Neither should a punishing authority seek guidance nor comments of any superior authority in this respect.9. If a Government servant is transferred from the jurisdiction one disciplinary authority ‘A’ to another ‘B’, while continuing in the same service, the Disciplinary authority ‘B’ need not start de-novo proceedings. He can commence the proceedings at the point, where the transfer of the accused was effected.

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ROLE OF DISCIPLINARY AUTHORITY (DA)1. Findings of the inquiring authority are not binding on the disciplinary

authority. It helps the DA in formulating his opinion.2. Disciplinary Authority should satisfy itself that the charged employee

has been given a reasonable opportunity to defend himself.3. Disciplinary Authority should record its findings in respect of each

article of charge saying whether in its opinion, it stands proved or not. If the DA disagrees with the findings on any article of charge, while recording its own findings, it should also record reasons for its disagreement but not so when he agrees.

4. DA should forward a copy of the inquiry report to the charged employee so as to enable him to make any representation / submission in writing within 15 days.

5. Having regards to its own finds on the articles of charge and on consideration of the written submission of the charged employee it the DA is of the pinion that the articles of charge have not been proved and that the charged employee should be exonerated, it will make an order so that effect and communicate it to the charged employee together with a copy of the report of the inquiring Authority, its own findings on it and brief reasons for its disagreement, if any with the finds of the I.A.

6. If the DA is of the opinion that any of the minor penalties should be imposed on the charged employee orders can be passed straightway.

7. The higher DA himself who instituted the Disciplinary Proceedings should pass the order without passing on the matter to the lower DA who may be competent to impose a minor penalty.

8. In the case of a charged employee whose services have been borrowed by one department from another department or from a state government or an authority subordinate thereto or a local or other authority, the DA will make an order imposing a minor penalty after consultation with the lending authority in the event of a difference of opinion between the borrowing and lending authorities the services of the charged employee should be replaced at the disposal of the lending authority.

9. If the DA is of the opinion that any of the major penalties should be imposed on the charged employee, it is not necessary to give the charged employee any opportunity of making representation on the penalty proposed to be imposed. An order imposing such penalty can be passed straightway. However, it is desirable to issue a show cause notice to the charged employee as to the proposed penalty.

10. Warning admonition, reprimand, caution, displeasure and premature retirement are not formal punishments under the rules and hence should not be administered / awarded.

11. Where it is considered after the conclusion of disciplinary proceedings the officer concerned should be punished, the Disciplinary Authority should award the penalty of ‘Censure’ at least if the intention of the DA is not to award a penalty of ‘Censure’ then no recordable warding should be awarded.

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12. Past good or bad conduct of a charged employee can be taken into consideration while awarding penalty. It should, however, be noted that if the previous bad record, punishment, etc is proposed to be taken into account in determining the quantum of penalty to be imposed, it should be made a specific charge in the charge sheet itself. Any mention of the past bad record in the order of penalty unwillingly or in a routine manner, when this had not been mentioned in the charge sheet would vitiate the proceedings and so should be scrupulously avoided.

13. It has been held that disciplinary proceedings under the rules are quasi-judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as DA under the rules and the orders issued by such authorities should have the attributes of a judicial order. As such recordings of reasons in support of the decision is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency. Reasons are the links between the materials on which conclusion is based and the actual conclusion. They reveal a rational nexus between the fact considered and the conclusion reached. Final orders made without mention of reasons for the conclusions reached will be of little assistance to authorities who have powers to decide appeal or exercise reversionary or review powers. Further, the order to be issued should be a self-contained and reasoned order conforming to the legal requirements. It is also essential that a decision is taken by the appropriate authority and that the same is also communicated by that authority or by his successor without modification or alteration in any manner and not delegated to any subordinate authority.

14. When a decision is recorded by a DA at the conclusion of the Disciplinary proceedings, the decision is final and cannot be varied by that authority itself or by its successor in office before it is formally communicated to the charged employee the decision taken by the DA is a judicial decision and once it is arrived at it is final.

15. If an employee has been convicted in a court of law, the DA should give an opportunity to the employee concerned of making representation on the penalty proposed to be imposed before any order is made. The DA should itself in the first instance hold an inquiry, in which the employee concerned should be given a chance to explain and defend the case. No charge sheet is required to be served as the charges have already been established in the court. A copy of the skeleton inquiry report held should be furnished along with the show cause notice referring only to the extenuating circumstances, if any, brought forward by the convicted employee and the gravity of the criminal charge, for provisionally deciding the quantum of penalty which may be finalised after taking into consideration the reply submitted by him in response to the show cause notice served.

16. In the peculiar circumstances of a case, for the DA to make such orders as it deems fit without holding any inquiry, in case it is satisfied for reasons to be recorded in writing, that it is not reasonably

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practicable to hold an inquiry in the manner laid down in the rules. It should be clearly noted the DA is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department’s case against the employee concerned is weak and is, therefore, bound to fail. Further it is a constitutional obligation that the DA should record in writing the reasons for its satisfaction that it was not reasonable practicable to hold the inquiry and preferably in the order of penalty itself. The reasons given, though may be brief, should not be vague or should not be just a repetition of the language of the relevant rules.

ROLE OF DISCIPLINARY AUTHORITY & IMPOSITION OF PUNISHMENT: PRINCIPLES, PROCEDURE

AND ROLE OF OTHER COMPETENT AUTHORITY

EVALUATION OF THE INQUIRY REPORT:1. Assessment of the evidence, findings and reasons on each

charge. Should come to its own conclusions.2. Compliance with the principles of natural justice by IO3. Conclusions of the IO should be supported by reasons.4. Check any technical irregularity in the IO’s report.5. Satisfy absence of malafides or want of good faith in the IO’s

conclusions.6. Check that the delinquent has been found guilty only of the

charge disclosed in the charge sheet.7. Ensure absence of perversity.8. Not to consider any other act of misconduct in earlier

proceedings, which was dropped.9. Not to consider past record of the delinquent, if earlier he was

not apprised of the same and given opportunity of defence.10. Past record can be taken into consideration for the purpose

of determining quantum of punishment.11. Findings of the Disciplinary authority would become the

appropriate findings.12. Disciplinary Authority can remit the case for a fresh or

further inquiry by giving its reasons.13. Once an employee is exonerated, no second inquiry unless

there is a specific provision for reviewing an order of exoneration in the service rules or law to that effect.

14. Forwarding a copy of the Inquiry Officer’s Report to the delinquent is obligatory.

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PUNISHMENT1. Punishment involves an exercise of judgement. Hence the

Disciplinary Authority (DA) has to consider many aspects before deciding.

2. To cause a person to suffer for his misconduct. Punishment may be deterrent, preventive or corrective.

3. Deterrent – Exemplary; preventive-prevent repetition; corrective to bring change in the offender’s character by counseling or admonition.

4. Imposition of penalty by an authority other than the authorised officer, not valid, even though such authority be higher in rank.

5. . Issue of second show cause notice before awarding punishment not essential

6. Punishment to be imposed for acts or omission having a causal connection with employment only.

7. Employer has a right to regulate the conduct and behaviour of his employees and maintain discipline within the premises of his establishment and within working hours.

8. Punishment must be based on objective assessment of facts and circumstances of each case in determining the type of punishment to be imposed.

9. Punishment should be commensurate with the magnitude of guilt.

10. No discrimination in awarding punishment.11. Warning and reprimand as a matter of guidance and not as

a measure of punishment.12. Order of punishment does not become operative until the

order is communicated and the person concerned knows about it.

13. Clerical error in the punishment order does not have any adverse effect in the validity of the order.

14. Punishment order to be prospective.15. Nature of punishment usually inflicted for an identical

misconduct should be kept in view to ensure consistency and uniformity in action.

16. If the delinquent employee appears to be repentant in his reply to charge sheet and during inquiry, then that fact should be taken into account in deciding the penalty.

17. The possible effect of the proposed punishment on the morale and general level of discipline of the organisation should be weighed.

18. Disciplinary Authority must supply a copy of his own finds stating the reasons for which he has come to the conclusion that he is guilty and therefore deserve the penalty imposed.

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CHAPTER- 7SUSPENSION

(Rule 10 of CCS (CCA) Rules, 1965)

1. What is suspension?It is a temporary deprivation of office. The contract of service is

not terminated. However, the Govt. servant placed under suspension is not allowed to discharge the functions of his office during the period of his suspension. It is not a penalty under the CCS (CCA) Rules, 1965. It is only an intermediate step. An appeal lies against the order of suspension and the employee is entitled to receive subsistence allowance.

2. Who can suspend? (Rule 10(1)The following authorities are empowered to place a Govt. servant

under suspension:-a) Appointing authority or any authority to which the Appointing authority is subordinate.b) Disciplinary authority.c) Any other authority empowered in this behalf by the President of

India by general or special order.Whenever an Authority lower than the Appointing Authority

places a Govt. servant under suspension, the circumstances leading to suspension must be communicated to the Appointing Authority forthwith.

3. When can a Government servant be placed under suspension? (Rule 10(1)

A government servant may be placed under suspension:i. where a disciplinary proceeding is contemplated or is pending ;

orii. where in the opinion of the competent authority, he has engaged

himself in activities prejudicial to the interest of the security of the state; or

iii. where a case against him in respect of any criminal offence is under investigation, inquiry or trial; or

iv. whenever a Govt. servant is involved in a dowry death case and a case has been registered by the police against him under Sec, 304 B of IPC, he shall be placed under suspension irrespective of the duration of the custody in the event of his arrest otherwise he will be placed under suspension immediately on submission of the report by Police to the magistrate.

4. Deemed Suspension (Rule 10(2)A person is deemed to have been placed under suspension by

the appointing authority in the following cases:-i) From the date of detention in custody for a period exceeding 48

hours.

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ii) From the date of conviction for an offence leading to imprisonment for a period exceeding 48 hours if he not forthwith dismissed or removed or compulsorily retired consequent to such conviction. (48 hours will be computed from the commencement of the imprisonment and for this purpose intermittent periods of imprisonment, if any, shall be taken into account).

iii) Rule 10(3). When a Govt. servant already under suspension is dismissed, removed or compulsorily retired but such punishment is set aside on appeal or review and further enquiry or action is ordered, the order of suspension will be deemed to continue in force from the date of the original order of punishment. Such order shall remain in force until further orders.

iv) Rule 10(4). If a Govt. servant is dismissed or removed or compulsorily retired from services, but the penalty is set aside or declared or rendered void by a Court of Law and the disciplinary authority on consideration of the circumstances of the case decides to hold a further enquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Govt. servant shall be deemed to have been placed under suspension by the Appointing authority from the date of original order of dismissal, removal or compulsory retirement and shall remain under suspension until further orders. Further enquiry is to be held only if the Court has passed the order purely on technical grounds without going into the merits of the case. There are two conditions which must be satisfied in order to attract the operation of Sub-rule(4) of Rule 10 of CCS(CCA) Rules, 1965. Firstly, the order of dismissal, removal or compulsory retirement must be set aside in consequence of a decision of a Court of Law. Secondly, the disciplinary authority must decide to hold a fresh enquiry on the allegations on which the order of dismissal, etc. was originally passed. ( H.L Mehra Vs. Union of India – AIR 1974 SC 1281).

v) Rule 10(5) 1. An order of suspension made or deemed ‘to have been made

unless revoked or modified by the competent authority will remain in force. It can be revoked or modified by the authority who made it or an authority to which the authority making the order is subordinate. If a Govt. servant has already been placed under suspension or is deemed to have been placed under suspension and any other disciplinary proceeding is commenced against him, the competent authority may direct that the Govt. servant shall continue to be under suspension until the termination of all or any such proceedings. In such a case, reasons are to be recorded in writing.

2. An order of suspension should be made with considerable amount of case and thought. The number of suspended officials

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is to be kept at the minimum. Hence, before placing a Govt. servant under suspension, it should be found out whether the purpose could be achieved by transferring him to an other place or asking him to go on leave, etc.

vi) Suspension may be desirable in the following circumstances:-

i) any offence or conduct involving moral turpitude.ii) Corruption, embezzlement or misappropriation of Govt. money,

possession of disproportionate assets, misuse of official power or machinery of Govt.

iii) Serious negligence and dereliction of duty resulting in considerable loss to government.

iv) Apprehension of the Govt. servant tampering with witnesses or documents.

v) being involved in a public scandal.VII. On the conclusion of the disciplinary proceedings, if a minor

penalty is imposed, suspension is regarded as unjustified and full pay and allowances and other consequential benefits are given to him and the period of suspension is treated as duty.(DOP&T OM No.11012/15/85-Estt(A) dated 03.12.1985)

VIII. Entitlements during suspension:-A Government servant placed under suspension or deemed suspension is entitled to draw subsistence allowance at an amount equal to leave salary half pay of half average pay plus dearness allowance as admissible on such amount and CCA and HRA as admissible to him before suspension for first 3 months. If the period of suspension exceeds 3 months, the amount of substance allowance may be increased or decreased upto a maximum of 50% of the amount being drawn by him during the first three months, depending on whether the reasons for continued suspension are attributable directly or indirectly to the Government servant.

IX. Regularization of the period of suspension:Where the Govt. servant who was under suspension is fully exonerated in a Departmental proceedings or acquitted by the Court in a Criminal trial, the period of suspension is treated as wholly unjustified. The period is treated as duty for all purposes and he is paid full pay and allowances for the period of suspension less the subsistence allowance already drawn by him.Where a major penalty is imposed on the Govt. servant, the period of suspension will be regularized by the competent authority after giving a show cause notice to the Govt. servant and allowing him a maximum time of 60 days to represent. The period of suspension will be regularized as ordered by the competent authority. The Govt. servant shall not be entitled to

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full pay and allowances for the period. He can be paid any amount less than 100% of his pay but it will not be less than the amount already drawn by him as subsistence allowance.The period of suspension may also be treated as leave due and admissible at the request of the Govt. servant. In such a case if the leave salary admissible works out to be less than the amount already paid as subsistence allowance then the excess amount shall have to be recovered.

X. Administrative effects of suspensioni. Grant of advance for purchase of conveyance shall not be

granted to a Govt. servant under suspension (Rule 200 GFRs)ii. Grant of House building advance is admissible.iii. A suspended Govt. servant can function as a Defence Assistant

subject to the fulfillment of other conditions.iv. Entry card should be withdrawn, if issued for entry in the office.v. If death occurs during suspension, the period of suspension will

be treated as duty and family will get full pay and allowances for the period less subsistence allowance already drawn.

vi. Leave: - FR 55 provides that leave may not be granted to a Govt. servant under suspension.

vii. LTC. - Since no leave can be granted to a Govt. Servant under suspension, he cannot avail of LTC for himself. There is, however, no bar to the members of his family availing of LTC.

viii. Lien: - A Govt. servant under suspension retains his lien during suspension period.

ix. A suspended Govt. servant should not be asked to mark attendance.

XI. Headquarters of a Govt. Servant under suspension:The headquarters of a Govt. servant under suspension should normally be assumed to be his last place of duty. However, where an individual under suspension request for change of headquarters, the competent authority may change the headquarter if it is satisfied that such a course of action will not put the Government to any expenditure like grant of T.A etc. or other complications.(MHA OM No.39/5/56-ESTs (A) dated 08.09.1956.)XII. Resignation during suspension:-

When a Govt. servant under suspension submits resignation, the competent authority will consider whether it would be in public interest to accept the resignation. Normally, it would not be accepted except where allegations do not involve moral turpitude or where evidence is not sufficient to prove the charges leading to removal / dismissal or where proceedings are likely to be protracted and it would be cheaper to the exchequer to accept the resignation. In the case of Group C employees and sub-staff prior approval of Head of the Department will

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be necessary. Approval of Minister would be needed in the case of Group A & B employees. Where departmental action has been initiated on the advice of CVC in the case of Group A & B Gazetted Officers, there concurrence should be obtained before submitting the file to Minister for approval.XIII. Retirement on superannuation.

On attaining the age of superannuation, a Govt. servant will be retired even if he is placed under suspension. He will not get subsistence allowance but will draw provisional pension under Rule 69 of CCS (Pension) Rules, 1972.

CHAPTER- 8CHARGE SHEET

[

The Charge sheet is the most important document in the inquiry. It contains articles of charge based on the allegations of misconduct and /or misbehaviour. The basic object of giving a charge sheet is to enable the delinquent official to defend himself against the charge leveled against him. The issue of charge sheet is also mandatory under Article 311 (2) of the Constitution.

There are differences in the form of charge sheet for the imposition of minor penalty and that required to be issued for imposing a major penalty. Whereas it is possible to impose a minor penalty on a Government servant after issue of a major penalty charge sheet, it is not permissible, under CCS (CCA) Rules 1965, to impose a major penalty after issue a minor penalty charge sheet.

Charge Sheet for imposition of a Minor Penalty.

The charge sheet for imposition of a minor penalty consists of a forwarding memorandum and the statement of allegations called the statement of Imputations of Misconduct or Misbehaviour.

The delinquent Government servant is called upon to submit his written statement of defence by a specified date, failing which ex-parte action by the Disciplinary Authority is permissible. However, Disciplinary Authority may grant further extension for submission of defence statement.

Charge sheet for imposition of a Major Penalty

When it is proposed to hold inquiry under Rule 14 for a major penalty the disciplinary authority shall draw up.

(i) the substance of the imputations of misconduct or misbehaviour into definite articles of charge

(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of change which shall contain:

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a) a statement of all relevant facts with full details including any admissions or confessions made by the Government servant;

b) a list of documents by which, and a list of witnesses by whom the articles of charge are proposed to be sustained.

From the above, it is evident that charge sheet for a major penalty shall consists of

i) Forwarding memorandumii) Articles of charge (as annexure I)iii) Statement of imputations of misconduct or misbehaviour in

support of each article of change (as annexure II)iv) List of documents by which articles of charge are proposed to be

sustained (as annexure III)v) List of witnesses by whom the articles of charge are proposed to be

sustained (as annexure – IV)

The forms outlined above have to be adhered to meticulously as those are provided under the statutory rules framed for the purpose.

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Who can issue the charge sheet?

Under the CCS (CCA) Rules, 1965 a charge sheet can only be issued by an authority who is competent to impose any of the penalties mentioned under Rule 11. Hence it cannot be issued by any authority who does not have power to impose any of the penalties mentioned above.

The authorities in KVS competent to issue charge sheet are a) the appointing authorityb) an authority to which the appointing authority is subordinatec) a disciplinary authorityd) any authority empowered by the Chairman KVS by a general or special

order.Further it is open to the disciplinary authority, competent to impose a minor penalty, to issue a charge sheet for initiating proceedings for the imposition of major penalty to a Government servant even though such authority is not competent to impose any of the major penalties. It must forward the records of the proceedings to the competent authority for such necessary action as the latter may deem fit.Who can sign the charge sheet?

The charge sheet must be signed by the authority competent to issue the Charge sheet. Since disciplinary function is a quasi-judicial function delegation of function is not permissible unless provided under the rules, or is permitted by a special order of delegation. Service of the Charge Sheet:-

The service of the charge sheet is a pre-requisite to the validity of the departmental inquiry. If it is not established that the charge sheet was served on the employee then the subsequent departmental inquiry becomes invalid. A great emphasis is, therefore, laid on the proof of delivery of the charge sheet under the CCS(CCA) Rules 1965. For the purpose the following procedure may be adopted.

i) Delivery by hand through his immediate superior officers who should obtain a written acknowledgement from the employee stating the receipt of charge sheet by him.

ii) In case the employee refuses to receive the charge sheet, call two witnesses and offer charge sheet to the employee in their presence. If again the employee refuses to receive the same, this fact should be recorded and got authenticated by the witnesses and reported to the disciplinary authority with proof of refusal.

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Refusal to receive the charge sheet constitutes the service of the same and is also a mis-conduct punishable under the CCS (CCA) Rules 1965.

iii) Where a Government servant is not available in the office and it is not possible to deliver the charge sheet personally, it should be sent to him by registered post AD at his officially known local address.

If the charge sheet is received back from the Postal Authorities with the remark ‘Refused’ delivery is deemed to have been effected. It the registered cover containing the charge sheet is received back from the postal authorities with the remarks such as ‘Not found’, ‘Not traceable’, ‘Left without address’ and the like then the charge sheet is not deemed to have been delivered. In such cases, the disciplinary authority may publish the charge sheet in a local news paper or take recourse to Rule 19(ii) of the CCS(CCA) Rules 1965. Ex-parte inquiry is not justified in such cases.

Drafting of the charge sheet:

A charge may be described as the essence of an allegation setting out the nature of the accusation in general terms, such as negligence in performance of official duties, inefficiency, and breach of Conduct Rule etc. Each charge should be expressed in clear terms and should be not vague. However, it is very difficult to define a vague charge. The acid test is that the charge should not only be specific but also intelligible so that the suspected Government servant can answer it.

The following guidelines will be helpful in framing a charge sheet:-a) A separate charge should be framed in respect of each separate

transaction/event or a series of related transactions /events amounting to misconduct/misbehaviour.

b) If the transaction/event amounts to more than one type of misconduct then all the misconducts should be mentioned.

c) If a transaction/event shows that the Government servant must be guilty of one or the other misconducts depending on one or the other set of circumstances, then the charge can be in the alternative.

d) Multiplication or splitting up of charges on the basis of the same allegation is to be avoided.

e) The articles of charge should first give plain facts and then mention the nature of misconduct /misbehaviour.

f) The wording of the charge should not appear to be an expression of opinion as to the guilt of the accused. Any statement which smacks of expression of opinion and draws some positive conclusions against the Government servant should be strictly avoided.

g) A charge should not relate to a matter which had already been the subject-matter of an inquiry resulting in conviction/punishment /acquittal/exoneration, unless it is based on benefit of doubt or on technical consideration.

h) A charge should not refer to the report on preliminary investigation.

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i) There is no bar to include all charges of violation of departmental rules as well as criminal offences which can be taken up departmentally, e.g. misappropriation of Government money, defalcation and theft of departmental materials, etc. In the case of departmental proceedings references to various clauses of the Indian Penal code should be avoided. The proceedings should be based on the failure to observe departmental rules and regulations. For instances, in the case of theft of a registered or insured article the charge against an employee may not be theft of that article but failure to account for the article entrusted to him.

j) All the data, figures, dates, etc. included in the imputation should be carefully checked before the issue of the charge –sheet as lot of difficulties crop up when some clerical error in these figures or dates later on comes to notice.The charge should be in the language which is understood by the delinquent official. Hindi and English are both official languages of the Central Government. If a Group ‘D’ employee demands charge sheet in Hindi, it should not be denied to him.

5. Rule 3(1) of the Central Civil Services (Conduct) Rules, 1964 provides that a Government servant shall all times maintain absolute integrity and devotion to duty and do nothing unbecoming of a Government servant. This rule serves the specific purpose of converting acts of misconduct not covered by other specific provisions of the Rules. It is therefore, necessary to satisfy in the first instance whether the alleged acts of misconduct do not attract the provisions of any specific rule before taking recourse to Rule 3(1) ibid. Where action is taken under Rule 3(1) particularly on grounds of unbecoming conduct, special care should be taken to eliminate cases of a trivial nature and to ensure that disciplinary proceedings under Rule 3(1) are not initiated on grounds which are unjustified.

6. The statement of imputation should give a full and precise recitation of the specific and relevant acts of commission or omission on the part of the Government servant in support of each charge including any admission or confession made by the Government servant and any other circumstances which it is proposed to take into consideration. In particular, in cases of misconduct/misbehaviour, it should mention the conduct/behaviour expected or the rule violated. It should be precise and factual. In particular, it would be improper to call an Investigating Officer’s report a statement of imputations. While drafting the statement of imputations it would not be proper to mention defence given at the preliminary investigation and enter into a discussion of the merits of the case. Wording of the imputations should, however, be clear enough to justify the imputations in spite of the likely version of the delinquent. It should be drafted in the third person and in the past tense.

7. The list of witnesses should contain the names of those witnesses who will be able to give positive evidence to substantiate the allegations. All material particulars given in the allegations such as

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dates, names, figures, totals of amounts, etc., should be carefully checked, with reference to the original documents and records, before such documents are included in the list of documents. In case, there are no documents or witnesses, NIL statements should be appended as Annexures – III and IV to the charge sheet.

8. When disciplinary proceedings are initiated on the complaint of a private party, there should not normally be any necessity to indicate the name of the complainant unless he is a material witness in the case. When, however, proceedings are initiated on the basis of the evidence collected after making investigations into the complaint, there should be not be any necessity to indicate the name of the complainant or the fact that the investigations were started as a result of the particular complaint.

9. Specimen Article of charge A specimen of an article of charge ia a case of bribery is given below:

“That Sri (name and designation of the Government servant at the time of framing of the charge), while functioning as (designation at the time of the misconduct) from …. to (period ) demanded and obtained an amount of Rs.5,000 as illegal gratification from Sri (name ), contractor, (address) on at (date and time ), in his office (mention any other place) promising to pass his bill of execution of work (give the name of the work) without objections threatening otherwise to withhold payment, which constitutes misconduct of failure to maintain absolute integrity and devotion to duty and commission of an act unbecoming of a Government servant, in violation of sub-rules (1) and (2) of Rule 3 of the CCS (Conduct) Rules, 1964.”Quite often expressions like moral turpitude, habitual corruption are freely used in the articles of charge without basis in the mistaken impression that suchPRACTICAL HINTS FOR PREPARING A CHARGE SHEET

It is common occurrence that facts mentioned in the charge sheet remain unsubstantiated for non mention of appropriate document in the annexure or for name witness. When these are sought to be introduced at a later stage during the inquiry, the Government servant raises objection to their admission creating difficulties in the smooth conduct of the inquiry. At times, opinions are expressed in the charge sheet which should be avoided in a good charge sheet. In order to avoid such mistakes the following steps are advised.

1. To collect and study the entire original records relating to the incident/ misconduct/fraud etc. before attempting to draft the charge sheet.

2. To divide the sheet of paper into three parts and to write down the statement of imputations of misconduct or misbehaviour first in the central portion giving the exact chronological sequence of events as per the form given below:-

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Annexure IIIList of documents

Annexure – II Statement of imputation of misconduct or misbehaviour

Annexure IV List of witness.

3. To mark each fact mentioned in the statement of imputations of misconduct or misbehaviour by a serial number. For example the statement of imputations may be as under.That Shri ‘X’ while functioning as a Post Graduate Teacher (English) from 27.11.2000 to 31.07.2003 in Kendriya Vidyalaya Muradnagar, failed to evaluate answer scripts of English core subject of 20 students of Class XI (Science) given to him on 24.03.03, within three days i.e.upto 27.03.03 and also reporting the non-evaluation of answer scripts to the Incharge Examination, Mrs.’Y’ till 30.03.03 causing delay in declaration of final result of the 20 students of class XI (Science) of the said Vidyalaya, there by showing lack of devotion to duty and contravening Rule 3(1)(ii) of CCS(conduct) Rules, 1964 as extended to the employees of Kendriya Vidyalaya Sangathan.From the above statement it would be seen that following facts have been mentioned, namely.1. That Shri ’X’ was working as a Post Graduate Teacher (English) in

Kendriya Vidyalaya Murdnagar from 27.11.2000 to 31.07.2003.2. That he failed to evaluate answer scripts of 20 students of class XI(Science)3. That the answer scripts were given to him on 24.03.03.4. That three days time was assigned to him to evaluate the 20 answers scripts.5. That he did not report the matter to Mrs.’Y’ Incharge examination till 30.03.03.6. That the result of 20 students of class XI(Science) was delayed

due to non-submission of evaluated 20 answer scripts of class XI(Science).

4) To ensure that each fact mentioned in the statement of imputation of misconduct or misbehaviour is supported either by a document or by a witness and should be stated in the relevant column of the above proforma. The possibility of missing a document or a witness will also be reduced to minimum. The fact(s) which could be substantiated either by a document or by a witness should be deleted unless the same has been admitted by the Government servant in his explanation or statement of defence. It should be noted that responsibility of proving the facts mentioned in the charge sheet is of the disciplinary authority hence the facts which cannot be proved should not be included in the charge sheet.

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STATEMENT OF IMPUTATIONStatement of imputations should contain all relevant facts given in the form of a narration and should embody a full and precise recitation of specific relevant acts of commission or omission on the part of the Government servant in support of each article of charge including any admission or confession made by the Government servant and any other circumstances which it is proposed to take into consideration. It should be precise and factual. It should mention the conduct/behaviour expected or the rule violated. It would be improper to furnish the report of the Investigating Officer as a statement of imputations. It would not be proper to mention the defence and enter into a discussion of the merits of the case to support the imputations inspite of the likely version of the Government servant. All material particulars such as dates, names, places, figures and totals of amounts etc should be carefully checked with reference to documents, statements of witnesses and other record and their accuracy ensured.

The statement should not refer to the preliminary enquiry report unless relied upon or the Anti-Corruption Bureau Report of enquiry/investigation or the advice of the Vigilance Commission, Vigilance Department or any such agency or functionary. It would be convenient to draft the statement of imputations of misconduct or misbehavior first and based thereon to frame the articles of charge and pick up the witnesses and documents therefrom. Avoid expression of opinion in the statement of imputation. Prepare articles of change after finalizing the statement of imputations.

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WITNESSESIn the course of the preliminary enquiry, a number of witnesses are usually examined and their statements recorded. The list of such witnesses should be carefully checked and only such of them who can give evidence to substantiate the charges should be included for examination during the oral inquiry. Others considered necessary may be included. Care should be taken to see that the list of witnesses is complete. Copies of the statements recorded, if any, of the listed witnesses should be furnished to the Government servant with the charge sheet. Statements of those not relied upon by the disciplinary authority need not be furnished.DOCUMENTSA list of documents containing evidence in support of the allegations should be prepared. Individual documents should be listed. .Mere mention of a file is not proper, unless the whole file is relevant and relied upon. It should be seen that the list of documents is complete. . Copies of the listed documents should be furnished with the charge sheet. Earlier statements of list witness should not be included in Annexure –III to the charge sheet as the same are to be supplied on demand by the Government servant. Moreover, these statements cannot be taken on record unless the witnesses appear before the Inquiry Officer and admits correctness of their earlier statementsMEMORANDUMThe charge sheet is served on the Government servant with a memorandum indicating that he is being proceeded against under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965, which gives him notice that major penalty proceedings are instituted against him.He is required to submit his defence statement within 10 working days and stating whether he desires to be heard in person. He is informed that an inquiry will be held only in respect of the articles of charge not admitted by him and that he should specifically admit or deny each article of charge. He is also informed that if he fails to submit the statement of defence or fails to comply with the provisions of the Rules at any stage, the inquiry may be held ex parte. He is warned against bringing influence to bear on the authorities on pain of action for misconduct under Rule 20 of the C CS (Conduct) Rules, 1964.It should be signed by the disciplinary authority and where Government are the disciplinary authority, by an officer who is authorised to authenticate the orders on behalf of the Governor.8) The articles of charge should be framed in clear, concise term without

ambiguity. This does not, however, mean that the essential ingredients should be omitted for the sake of brevity.

9) Action on receipt of statement of defence The Government servant may submit the written statement of his defence. On a consideration of the statement of defence and examination of the Government servant, the Disciplinary authority can take the following course of action:

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(i) He may review and modify the articles of charge, in which case a fresh opportunity should be given to the Government servant to submit a fresh statement of defence.(ii) He may drop some of the charges or all the charges, if he is satisfied that there is no further cause to proceed with.(iii) He may, where he is of the opinion that imposition of a major penalty is not necessary, impose a minor penalty, on the basis of the record. But he shall not do so where the charged Government servant has not offered a detailed explanation to the charge in the expectation that he could let in his defence in the course of the inquiry.(iv) The disciplinary authority shall return a finding of guilty on such of the charges as are admitted.(v) Inquiry need be conducted only into such of the charges as are not admitted.(vi) The disciplinary authority may conduct the inquiry himself but should refrain from doing so, unless unavoidable.(vii) He may appoint an Inquiring Authority to inquire into the charges. He should do so only after consideration of the statement of defence and fulfilment of the other tasks assigned to him.

Where the Charged Government servant pleads guiltyThe disciplinary authority shall ask the Government servant whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the disciplinary authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. The disciplinary authority should give a finding of guilty on such of the charges as are admitted. The admission should be unequivocal, unqualified and unconditional. He may take evidence as he may think it fit. Where the Government servant pleads guilty to all the charges, the disciplinary authority may act in the manner laid down in Rules.

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CHAPTER- 9PROCEDURE FOR IMPOSING MINOR PENALTIES

Cases in which the disciplinary authority is of the opinion that action should be taken for the preliminary inquiry held in the case, it will follow the procedure laid down under Rule-16 of the CCS (CCA) Rules, 1965. Minor penalty proceedings are generally initiated in cases of misconduct which are not considered serious or of grave nature. The disciplinary authority shall, in all such cases, inform the Govt. servant concerned in writing of the proposal to take action against him by a memorandum which shall be accompanied by a statement of imputations of misconduct or misbehaviour for which action is proposed to be taken. Ordinarily, ten days time is given to the Govt. servant to make any representation that he may like to make against the proposal to take action against him. The memorandum informing the Govt. servant of the proposal to take action should be signed by the disciplinary authority and no one else on its behalf.

INSPECTION OF RECORDS BEFORE SUBMISSION OF STATEMENT OF DEFENCE

There is no provision under Rule-16 of the CCS (CCA) Rules, 1965 for inspection of documents by the delinquent Govt. servant before submission of his statement of defence should be considered by the disciplinary authority. However, where the allegations are based on documents, the request of the Govt. servant for inspection of such documents before submission of his statement of defence should be considered on merits.

The discretion has, however, to be applied judiciously in each case. Whether the request for inspection of documents is refused by the disciplinary authority, it should state the reasons for refusal to avoid complications at a later stage.

ACTION ON THE STATEMENT OF DEFENCEOn receipt of the statement of defence from the charged officer or non-

receipt of it within the stipulated time permitted for the purpose, the disciplinary authority may proceed to record its own findings on each of the allegations made in the statement of imputations after taking into account the defence of the charged official, if any, and such evidence as it considers necessary for the purpose.

Three options are open to the disciplinary authority. In the first place, if it finds that the allegations made against the delinquent Govt. servant have not been proved and the Govt. servant deserves to be exonerated, it may make an order exonerating the Govt. servant or dropping the proceedings against him. The order has to be made in writing and must be communicated to the Govt. servant. In the second place, if the disciplinary authority comes to the conclusion that the allegations as made out against the Govt. servant have been proved against him and the imposition of minor penalty is considered

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adequate, it shall proceed to impose such a penalty by making a suitable order.

Thirdly, if the disciplinary authority, after considering the defence of the delinquent official and taking into consideration such evidence as it deems necessary, is of the opinion that the penalty of withholding of increment with cumulative effect may be imposed for any period or the withholding of increment is likely to affect adversely the amount of pension payable to him; or it is proposed to withhold increments for more than three years, it shall hold an oral inquiry as provided under sub-rules (3) to (23) of Rule-14 of the CCS (CCA) Rules, 1965 before imposing any of the above mentioned penalties.HOLDING AN INQUIRY IN MINOR PENALTY PROCEEDINGS The holding of an inquiry is not mandatory when proceedings for imposition of a minor penalty are initiated under Rule-16 (1) of the CCS (CCA) Rules, 1965.

The punishment can, therefore, be imposed after serving the charge sheet on the Govt. servant and after he has made his representation, if the disciplinary authority considers that holding of inquiry is not necessary.

ORAL HEARING AT THE REQUEST OF GOVT. SERVANT In a case where the delinquent Govt. servant has asked for inspection or certain documents and also for cross examination of witnesses on whose statements the allegations were based, the disciplinary authority should apply its mind more closely to the request and need not reject the request solely on the ground that an inquiry is not mandatory. The implication of the rules is that the discretion to hold an oral inquiry vests in the disciplinary authority, but his discretion cannot be used in an arbitrary manner. Reasons must be stated whenever the request for oral inquiry is refused otherwise it is likely to be construed as a denial of reasonable opportunity to the delinquent Govt. servant by the courts of law.CASES IN WHICH ORAL INQUIRY MUST BE HELD

Rule 16(1-A) of the CCS (CCA) Rules, 1965 provides that an inquiry shall be held, where after considering the representation of the Govt. servant, it is proposed to impose any of the following penalties:-

(i) Withholding of his increments of pay which is likely to affect adversely the amount of pension payable to him;

(ii) Withholding of increments of pay for a period exceeding three years;

(iii) Withholding of increments of pay with cumulative effect for any period.

The inquiry in such cases shall be held as provided under sub-rule (3) to (23) of Rule-14 of the CCS(CCA) Rules, 1965.

In cases in which it is decided to hold an inquiry either on the basis of the mandatory provisions of Rule 16(1-A) or due to the use of the discretion vested in the disciplinary authority under Rule-16 (1) (b), the procedure to be followed will be the same as prescribed for an inquiry into a case in which a major penalty is proposed to be imposed.

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The disciplinary authority is not competent to impose a major penalty on the conclusion of the proceeding initiated under Rule-16 of the CCS (CCA) Rules, 1965. If it is wants to do so, it shall have to initiate de-novo proceedings under Rule-14. There is, however, no bar to the imposition of a minor penalty at the conclusion of the proceedings initiated under Rule-14.

A list of the types of cases in which it would be desirable to start proceedings under Rule-14 of the CCS (CCA) Rules, 1965 for imposition of a major penalty, is given below:-I Cases involving penal offences where sufficient evidence is not available for prosecution in a Court of Law, e.g. (i) Misappropriation of Govt. funds, stores or property;

(ii) Possession of disproportionate assets;(iii) Obtaining or attempting to obtain illegal gratification;(iv) Securing pecuniary advantage without consideration or for

inadequate consideration.

II Misuse of official position or power for personal gain.III Falsification of Govt. records.IV Gross irregularity or negligence in official duties with a dishonest motive.V Gross irregularity or negligence causing huge loss to Govt.VI False claims such as T.A. claims, medical reimbursement claims etc.VII Disclosure of secret or confidential information even though it

may not fall strictly within the scope of the Official Secrets Act.VIII Cases involving moral turpitude.IX Cases involving willful disobedience of written orders of a

superior authority or involving actions subversive of office discipline and smooth functioning.

X Any case in which the disciplinary authority is of the opinion that it warrants major penalty proceedings.

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CHAPTER- 10APPOINTMENT OF PRESENTING OFFICER AND INQUIRY

OFFICER[A] APPOINTMENT OF PRESENTING OFFICER:1. WHO IS A PRESENTING OFFICER?

The presenting officer in departmental disciplinary proceedings is a functionary appointed by the Disciplinary Authority. He is to present the case on his behalf in support of articles of charge before the Inquiry Authority in case articles of charge are not admitted by the Govt. servant in his written statement of defence.2. HOW PRESENTING OFFICER IS APPOINTED?:

Rule 14(5) of the CCS(C.C.A) Rules 1965 lays down that the presenting officer should be a “Govt. servant”, Govt. Servant means a person who-

i) is a member of a service or holds a civil post under the union, and includes any such person on foreign service or whose services are temporarily placed at the disposal of a State Govt. of a local or other authority;

ii) is a member of a service or holds a civil post under a state Govt. and whose services are temporarily placed at the disposal of the central Govt;

iii) is in the service of a local or other authority and whose services are temporarily placed at the disposal of the central Govt.

Note: In case of KVS ‘Government Servant’ has been substituted by the words ‘employee of Kendriya Vidyalaya Sangathan (Art 80).3. PRESENTING OFFICER FROM WITHIN THE ORGANISATION:

The normal practice is to appoint an officer of the Organization as the presenting officer. Such an officer should be one who is conversant with the subject matter of inquiry. It will be advantageous if he has been trained for this purpose.4. APPOINTMENT OF PRESENTING OFFICER FROM C.B.I. OR ANTI-CORRUPTION BUREAU:

As per normal practice the C.B.I or the Anti-Corruption Bureau nominate one of their officers to function as presenting officer in the departmental proceedings in a case investigated by them. However, such an officer is appointed as presenting officer by the disciplinary authority.5. LEGAL PRACTITIONERS AS PRESENTING OFFICERS:

A legal practitioner can be appointed as a presenting officer only if the relevant disciplinary rules permit. In such a situation the charged employee also acquires a right to be defended by a legal practitioner.

6. INVESTIGATION OFFICER OR A PROSECUTION WITNESS MAY NOT BE APPOINTED AS PRESENTING OFFICER:

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The Punjab High Court has held that the investigating officer should not act as presenting officer also {Randhir Singh V Union India C.W. No.180-D of 1962}. Similarly a prosecution witness can not be appointed as presenting officer7. THE APPOINTMENT OF PRESENTING OFFICER IS NOT OBLIGATORY:

The appointment of presenting officer is not obligatory. The various disciplinary rules simply provide that the disciplinary Authority “May appoint a Presenting Officer.” Therefore the inquiry proceedings shall not be vitiated on the only ground that no presenting officer was appointed. (T.N. Govindarajan V Indian Overseas Bank, 1992 Lab IC(Madras) 1832).

The charged employee has not right to insist that a Presenting Officer must be appointed. The reason is the appointment or otherwise of a Presenting Officer does not affect his defence in any manner.

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8. SITUATIONS IN WHICH PRESENTING OFFICER SHOULD BE APPOINTED:

The Madras High Court has observed that if the Inquiry Officer is to consider only documentary evidence, it may not be necessary to appoint a Presenting Officer. But if he is to consider the evidence led on behalf of prosecution, it is necessary that the disciplinary authority should appoint a presenting officer. To sum up, where a number of witnesses are to be examined on both the sides it is always advantageous to appoint a Presenting Officer.9. FORMAL ORDER OF APPOINTMENT ESSENTIAL:

However, where it is decided to appoint a Presenting Officer, it is essential that he is formally and duly appointed by the Disciplinary Authority.10. FORMAL APPOINTMENT NOT NECESSARY DURING TEMPORARY

ABSENCE:In the course of the inquiry, if the Presenting Officer is unavoidably

absent on a particular date of hearing, another officer duly nominated by the Disciplinary Authority or the presenting Officer can act on behalf of the Presenting Officer and examine or cross-examine the witnesses. Theis is permissible under Rule 14(4) of C.C.S(CCA) Rules, 1965.11. CAN APPOINTMENT OF PRESENTING OFFICER BE CHALLENGED

ON GROUND OF BIAS?No. The reason is that the Presenting Officer has no role, whatever, in

the decision taking process of the Inquiry Authority. But as per considered opinion a person who is admittedly and evidently on bad terms with the charged employee should not be appointed as a Presenting Officer unless for good reasons.12. APPEAL AGAINST APPOINTMENT OF PRESENTING OFFICER:

The various Discipline and Appeal Rules do not provide for an appeal against an order appointing the Presenting Officer. In fact, since there cannot be any cause of grievance to the accused employee, there is not provision for reconsideration.13. PAPERS TO BE SUPPLIED TO THE PRESENTING OFFICER:

The Disciplinary Authority shall supply the following papers to the Presenting Officer along with his order of appointment.

i) A copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;

ii) A copy of the written statement of defence, if any submitted by the charged employee;

iii) Copies of earlier statements of witnesses mentioned in the list of witnesses.

iv) Evidence proving the delivery of the charge sheet to the charged employee and

v) A copy of the order appointing the Presenting Officer.

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14. PAYMENT OF HONORARIUM TO PRESENTING OFFICER:The honorarium to the Inquiry Officers and Presenting Officers whether

a serving officer or retired, is admissible as per the Directions of the KVS amended from time to time.15. THE ROLE OF THE PRESENTING OFFICER:

The role of the presenting officer starts when the Inquiry Officer starts recording of evidence. The Presenting Officer is appointed for presenting the case of the Disciplinary Authority in support of the articles of charge. The proper role of the presenting officer is to assist, to the best of his ability, the inquiry authority to reach the truth by presenting before him the case of the disciplinary authority in its correct perspective. He is appointed for the purpose of lending evidence before the Inquiry Officer, to cross-examine the defence witness, if any. He has also to watch the interest of the disciplinary authority in the departmental proceedings. It may be borne in mind that the inquiry officer is not court of law and the presenting officer is not a prosecutor in the strict sense of the term. Both are creatures of the disciplinary authority and exist at its pleasure. Presenting Officer cannot assume the role of the disciplinary authority.

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DUTIES OF THE PRESENTING OFFICERThe primary function of the presenting officer is to marshal the facts (oral or documentary) before the Inquiry Officer and to examine and cross examine the witnesses produced during the Inquiry. Thus he should:

1. to assist the inquiry officer during preliminary hearing to sort our the preliminaries.

2. supply copies of the document in support of the charges and allow inspection of originals to the charged employee when so directed by inquiry officer.

3. supply copies (in full) of the earlier statements of witnesses mentioned in the list, along with the inspection of documents.

4. produce the listed documents before the inquiry officer in the beginning of the regular hearing so that they are brought on record and to prove the disputed documents by examining the relevant official witness(witnesses).

5. lead in a logical manner, the evidence before the inquiry officer in support of the charges.

6. cross examine effectively witnesses produced by defence. 7. submit his written brief after all evidence has been recorded in the

case.

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CHAPTER- 11FUNCTIONS OF PRESENTING OFFICER

1. The P.O. is, so to say, the advocate of the DA. As such he must study the case and plan out strategy to present his case before the I.O.

2. The P.O. is to show why the charges should be deemed to be established on the basis of preponderance of probability of oral and or documentary evidence (direct or circumstances) and by drawing logical inferences there from.

3. He should be thorough with the rules, and should not hesitate to consult the investigating officers to find out if any additional evidence would be necessary.

4. His duty is supply the copies of earlier statements of listed witnesses. He is also required to show listed documents to the C.O. and permit him to take extract or Xerox copies wherever possible.

5. He is to produce listed documents during regular hearing and departmental witnesses one by one. He is to cross-examine the defence witnesses.

6. He cannot ask a leading question in the examination-in-chief or re-examination. Leading question may be raised in cross-examination.

7. If witness is not co-operating during examination or has changed his earlier stand, he has a right to request the I.O. to declare the witness ‘hostile’ and to permit him to cross examine that witness.

8. Ordinarily, the burden of proving misconduct lies on the P.O. However, if the C.O. gives an ‘alibi’ or raises any other defence plea the burden of providing it is on him (CO).

9. P.O. should be present on all the hearings and submit written brief within the stipulated time. The case may be lost by default.

Instructions for Presenting Officer

1. Be knowledgeable about rules and procedures of conduct of inquiry.2. Study your case fully and take the proceedings seriously.3. Study each item of oral and documentary evidence and correlate what

is likely to prove or fails to prove.4. If a document is disputed, shall not be taken on record unless it is

proved. A document can be proved through a witness who identifies it. Like any other witness, he is liable to cross-examination by the opposite party.

5. Be in a position to collect all the documents and witnesses during regular hearings on the fixed date & time.

6. Before departmental witnesses are examined at the enquiry, it would be desirable to meet them in advance and refresh their memory.

7. You should anticipate the possible line of defence by the C.O. be prepared for it.

8. You should try to disprove the facts deposed by the defence witnesses or to raise doubts about the credibility.

9. Remember the points generally raised by the defence viz. Malafide, Natural justice, burden of proof. Equip yourself to meet them.

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10. A public servant has to act in good faith. If there is a doubt it is his duty to explain that despite his best efforts, care and attention something has gone wrong.

11. As regards standard of proof, technicalities of criminal law cannot be invoked in departmental proceedings. Indian Evidence Act is not applied with equal vigor. The standard of proof required is that a preponderance of probability and not proof beyond reasonable doubts.

12. As inquiry proceeds take down notes so that nothing is missed in cross-examination and / or in written brief.

13. C.O. often takes shelter of by pleading absence of malafide, or malice. Proof of malafide is not required in departmental proceeding. However, it can be taken into account while awarding penalty.

14. It would always be preferable to seek permission to submit written brief. Your written brief should be crisp and not verbose.

15. Your conduct should not give an impression that you have undue influence on the I.O.

Diverse Roles of IO in the Inquiry Process as Course Director and Moderator

Unlike the PO and CO, the Inquiry officer is not a direct field player in a departmental inquiry. As a presiding officer, he is normally a silent listener during the inquiry, an occasional moderator and a keen observer. In other words he acts as an umpire. In a tangle or difficult situation he is decisive and delivers his ruling on spot, which is final and binding on both parties as far as the inquiry proceedings are concerned. He is an independent open-minded statutory authority. He accepts no orders from any administrative authority. He need not even have to report daily proceedings to the disciplinary authority. He cannot delegate his statutory functions (that are derived from the DA Regulations) to others. He may appear as a restrained listener, but his authority with reference to the inquiry, is decisive. He can direct his own independent questions to any prosecution or defence witness at any stage. He can call for additional witnesses or documents, or recall any witness, who has already deposed for additional examination . He has reserve powers under DA Regulation 6(14) and under Explanation and Proviso after sub section (d) of Regulation 6(21) - (reference to PNB DA Regulations). Broadly the inquiry officer's functions are as under:

He fixes the date for the preliminary Inquiry after receipt of order of appointment and conducts the proceedings as per DA Regulations prescribed therefor.

When the process of giving material details to the charged officer as needed by him for his defence are completed, he fixes the date(s) for regular enquiry at the place and time decided by him.

He can adjourn proceedings thereafter from time to time as decided and considered expedient by him.

presides over the inquiry proceedings and ensures that the rules of the inquiry are strictly observed.

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He attentively listens to the evidences presented by both parties to the Inquiry and records everything relevant. At the end he objectively analyses the evidences presented and submits the Report of the Inquiry Officer to the disciplinary authority [DA Regulation 6(21) sub sections (a) to (d).]

He acts as moderator or umpire and pronounces his rulings on spot, whenever there surfaces a deadlock or any discord in the smooth flow of the proceedings.

In specific contingencies, where there is a need, he reveals his hidden powers. To fathom the credibility of any wavering witness (prosecution or defence) he may put pertinent questions from his side at any point. He can recall any witness from either side at any time for additional examination. He can call technical experts, or persons well versed in particular areas of banking to clarify any procedural or technical point [Regulation 6(14)]. The power under this regulation can be invoked by the Inquiry Officer to bridge gaps or reconcile inconsistencies in the evidence produced or to clarify purely technical or procedural matters on complex topics, which happen to be of relevance for proper understanding of the issues inquired into.

Where the contingency arises he can invoke his powers under "Explanation" and "Proviso" after sub section (i) (d) of DA Regulation 6(21) to modify the articles of charge sheet and give his findings on substituted articles of charge, after adhering to the formalities mentioned thereunder. This happens when the investigation conducted is not perfect. Due to improper investigation conducted or on account of any other reasons, though the charged officer has committed grave errors of commission and omission, these are not correctly specified in charge sheet, but surface out for the first time during inquiry. In such a case the situation develops that the charged officer is not guilty of the charges imputed, but guilty of a different misconduct, for which he has not been charge-sheeted. A fresh charge sheet or a memorandum of corrigendum to the existing charge sheet cannot be considered at this stage. The enabling provision in the DA Regulations provides for such contingency. However before the finding on such substituted imputations, or articles are made, the Inquiry Officer should give ample opportunities to the charged officer to cross examine the witnesses, impeach the records produced, in addition to scope for producing his own evidences, if any, as desired by him with reference to the substituted imputations/articles of charge.

Though the Inquiry Officer is primarily concerned only with the allegations against the charged officer, he is well within his rights to include in his report adverse remarks or strictures on the following connected persons for further action by the competent authority-

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o Any witness who has given perverse evidence (making a statement of fact knowing that it is a lie) and is detected, caught and confesses on being recalled.

o Gross omissions by the investigating officer, which results in false/incorrect charge sheet having been drafted.

o If the allegations are not proved against the charged officer, and appears to have been committed by some other officer, the name(s) of such officer(s).

In other words he acts like a quasi-judicial judge or magistrate and discharges identical functions, except that the report of the inquiry officer is a fact-finding report and not a judicial or quasi-judicial order binding on the parties and to be executed directly. The report of the inquiry officer is the basis for further action by the Disciplinary Authority.Basically the functions of the inquiry officer after appointment consist of

1. Organising the inquiry process and 2. Conducting the inquiry, which in turn covers two sub-functions

o Analysing documents & records submitted as evidence, and o Monitoring the recording/testimony of witness on either side

Profile of IO consists of five more pages. Pages- 1 and 2 relate the initial steps needed to be taken for organising the inquiry, while Page-3, narrates how the inquiry is to be conducted. Page-4 examines how documents/records are to be analysed, and final report of the inquiry officer compiled, while page-5 gives an insight into how to monitor and regulate the testimony of oral witnesses.

Profile of Inquiry Officer - Role Objectives & MissionAn officer presiding over a group of parties with conflicting or mutually opposed objectives has to assume two qualities:

1. be fair, and 2. be firm and impartial

The needs of objectivity, of analytically and dispassionately looking towards the core issues, to be brought out in an inquiry,- in other words, the truth or otherwise of each imputation of the charge sheet, demand an alert and disciplined approach on the part of the inquiry officer. This page analyses the role of the inquiry officer from this stand point or view. It defines and deals with the mission and objectives that should permeate the mindset of an inquiry officer, the disciplining of his "attitude" as the presiding officer, and his own special interest to be fulfilled, intended to faithfully and impartially discharge the functions of his statutory assignment. The knowledge and skill resources need to be acquired/possessed by him; the pitfalls that inadvertence may lead him to derail or bring disrepute to his assignment are all described in detail.Specific circumstances, when an officer appointed as inquiry officer for a departmental inquiry, should politely decline the assignment, on

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moral/ethical grounds are narrated, as also how to deal with or overcome particular problems that an IO may face, when asked to conduct an inquiry on a defective or materially deficient charge sheet, or when he finds that either the PO or CO are incompetent and not in a position to lead their role/assignments properly, all contingencies threatening to bring down the quality of the inquiry process to nullity.The page ends after describing in a nutshell the sequential stages of his linear functions, from start to end.

His Mission & Objectives The acceptance of a mission and setting up pre-defined objectives helps to provide a roadmap to the inquiry officer to effectively discharge his duties. His mission and objectives should be as under:

IO as an administrative officer, but called upon to perform a function with a perceptible judicial spirit. He is therefore a quasi-judicial authority.

As the DA Regulations are statutory in character, the IO appointed under the provisions of the said regulations to carry out assigned functions is a statutory authority. His loyalty is therefore to the provisions of the statute and his powers and responsibilities are defined by the statute, in terms of which he is appointed.

job - "Find the truth of the articles of charges and imputation of misconduct". Truth is his goal and as stated earlier the inquiry officer's primary loyalty is to the statutory DA Regulations and not even to the disciplinary authority, who after making the appointment cannot interfere in the inquiry process. The disciplinary authority can however change the inquiry officer in the midst of an inquiry for reasons as decided by him or send advice to the inquiry officer to conclude the proceedings expeditiously.

Hear both sides. Do not hear outsiders. Start with an open mind holding only the issues posed by the charge sheet at commencement and absorb objectively the evidence presented during inquiry by either side.

Do not bring personal interest (likes or dislikes; compassion or hatred) into play with reference to your role.

Do not lend your mind to anything external to the inquiry records, while drawing your conclusions. Do not let your mind be known to anyone before submitting your report

Do not allow any one not even your administrative head to discuss matters pertaining to the disciplinary case with you during inquiry, except as witness attending the inquiry while recording evidence.

Keep both sides PO & CO at equal distance.

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Bring out impartial logic while drafting your report in simple words, and lend no other consideration.

Be bold and fair in drafting the report as per your convictions.His Attitude As the next step, the IO should accept a balanced attitude to remain steadfast to his mission, to the realisation of his objectives and to properly discharge his duties. In short he must follow the guidelines as under:

Be objective, fair and impartial. No predetermined bias or conclusions about the case.

Even if you sense the charged officer has committed serious omissions, do not bring this feeling into play, while conducting the inquiry. However if the bare facts establishing prima facie a misconduct by the charged officer are proved, the charge is presumed as established. However it is your duty to bring these facts to the notice of the charged officer and seek his explanation or give him an opportunity to explain his stand. The charges are deemed as proved only if the charged officer fails to provide satisfactory explanation properly justifying his action.

Do not consider that the Inquiry consists merely of two sides, prosecution and defence. Consider that it consists of three elements, i.e. the prosecution, the allegations, and the charged officer. Both sides have to deal with the allegations - one trying to prove it and the other endeavoring to disprove and explain it. This is the substance of the inquiry, at the end of which IO has to find out who holds the truth, the PO or CO.

Qualification and knowledge Resources to bepossessed by the Inquiry Officer

As per CVC Manual the officer selected for appointment as Inquiry Officer should be of sufficiently senior in rank and one who is not having any prejudice or bias against the accused officer and who did not have an occasion to express an opinion on the merits of the case at an earlier stage.Additionally he must have good knowledge of the CVC Manual/ KVS Education Code and Accounts Code. Rudimentary knowledge of Indian evidences Act with reference to examination and cross-examination of witnesses is an added qualification. A ready reference manual covering guidelines issued by the Government of India in respect of difference provisions of CCS (CCA) Rules, 1965 will be useful.Where the allegations in the charge sheet cover transactions involving complex technical particulars, the Inquiry Officer will need that the first prosecution witness is an expert on such technical matters, who explains these technical details and these are recorded as evidence in the inquiry.

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His Special Interest

Ensure inquiry is completed expeditiously adhering to the time schedule.

Ensure inquiry is conducted within the provisions of the DA Regulations and strictly conforming to its quasi-judicial standards.(Refer all about quasi-judicial nature of inquiry proceedings from the chapter on departmental inquiry).

Ensure the charged officer is not denied natural justice. Learn all about principles of natural justice, as enunciated by the judicial authorities and reasonable opportunity as provided under Article 311 of the Constitution, from the relevant chapters.

Reduce to writing i.e. include in the records of proceeding all procedural, technical objections raised in the inquiry and also mention therein clearly your ruling.

In the first instance conduct the inquiry objectively. But not less in importance is the necessity that the records of the inquiry should reflect clearly this fact. Be perfect and be seen as perfect by those concerned.

Pitfalls that He must Avoid1. If the disciplinary authority, disagrees with his findings on logical

grounds and records substituted findings on such imputation, it is a reflection on the IO's balanced judgement and indirectly a stricture on his judicious approach. On the other hand, if the disciplinary authority remits the case for a fresh inquiry for valid reasons recorded by it, it is a reflection on the quality & objectiveness of the overall inquiry proceedings. The inquiry conducted is rated as sub-standard. He should take precautions that these eventualities do not occur on account of avoidable omissions on his part.

2. If however the charged officer approaches a court of law, prefers a judicial review of the proceedings and is able to set aside the punishment, it is a reflection on both the IO and the Disciplinary Authority. This is another extreme. This may reflect disrepute for the entire discipline management system of the organization.

IO should weigh these eventualities and keep the findings of his report well within bounds by means of an impartial assessment of the evidence and based on equity and justice. He should not give opportunity to either the disciplinary authority or the charged officer to question his objectivity and thoroughness or impartiality.

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When the Inquiry Officer should Politely Decline the Assignment,When Appointed by the Disciplinary Authority

He should politely decline the assignment stating valid reasons, when he feels that he is not competent or will not be able to deliver justice to the job. Some such circumstances are as under:

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Charged officer happens to be senior in status/rank to him. Though CO is junior, IO-designate happen to be the immediate

administrative head of the charged officer, with assigned role to act as his nurturing parent.

When he is partly connected as controller or in any other capacity with the transaction(s) included in the charge sheet.

When he happens to be a material witness for the defence or prosecution, though not cited as such.

When he has earlier conducted an inquiry against the same charged officer.

Defects, Deficiencies or Errors found in the Statementof Imputations or Articles of Charge

It is the duty of the presenting officer to get these rectified after taking up the matter with the Disciplinary Authority. IO will not directly concern himself. IO will conduct the inquiry, hear the evidences on both sides and if needed would invoke his special powers under DA Regulation 6(21) Explanation given under sub item (i) (d). At best immediately after appointment, IO may informally discuss the matter with the PO and advise him to get the matter taken up with the disciplinary authority for effecting necessary corrections to remove the defects in the imputations.

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If PO or CO Fails to Present their Respective Cases Properly

Such deficiency may be due to-a. capacity to effectively cross examine witnesses of the opposite side. b. Lack of capacity to draft the PO's/Defence brief properly.

The inquiry is intended for establishing the truth. Generally it is not advisable to punish a charged officer due to his inability to defend himself, if otherwise he is found innocent. Similarly it is not prudent to let a charged officer escape because of lack of capacity of the PO. However the inquiry officer should not and cannot step into the shoes and assume the roles either of the PO or CO. This is against the spirit of objectivity attached to his role. He may however use his own powers under the DA regulations to bridge the problem.If the brief of the PO or defence is inept, the brief being only a summary of the evidences presented, the Inquiry officer can directly interpret the evidences and arrive at his independent but logical conclusion.If either party is lacking capacity to effectively cross-examine witness, or fails to produce material documents/witness, the Inquiry officer can invoke his powers under DA Regulation 6(14) and save the situation. By way of example the charged officer denies a particular allegation that he was not present on the day it occurred at the Branch and was on leave, but fails to submit any corroborating evidence in support due to his ignorance, the Inquiry Officer on his own discretion can call for an extract of the attendance register and the leave extract of the charged officer to check this fact. He does this using his powers under DA regulation 6(14). He does this because he is interested in knowing the correct facts/truth and not because he is soft to the charged officer and eager to shield him. Similarly if either party fails to produce all the material evidences (documents and oral evidence) the Inquiry Officer may directly call for such documents and witnesses, that he may feel is relevant or necessary.[also DA regulation 6(14)]

Sequential Stages/Steps in the Role of the Inquiry Officer

1. Framing of Issues on Receipt of order of Appointment

He accepts a mission and sets his mindset for a role of reporting the truth, and fair play in the ensuing process. He can at this stage study the charge sheet and the written statement of reply to the charge sheet submitted by the charged officer to the disciplinary authority, to visualise and define the core "Issues" that have to be decided during the Inquiry. Obviously the "Issues" are different from the imputations. The imputations include "facts-in-issue and several relevant facts, explaining the facts-in-issue (allegations). All the relevant facts may not be disputed by the charged officer. The "Issues" to be decided in the course of the inquiry will therefore consist of those statements in the charge sheet that have been disputed by the charged officer either through denial or explanation. The defining and ascertaining of the

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"Issues" in dispute will be a decisive step and enables the inquiry officer to subsequently assess the relevancy of the defence list of documents and witnesses for approval, and also to monitor that evidences testified by witnesses on both sides during regular inquiry are made within the bounds of the "Issues" disputed the charge sheet and that proceedings do not stray outside to external matters. The guidelines for this stage have already been given earlier in this page.

2. Providing facilities to the charged officer at the Preliminary Inquiry:He is sympathetic for the genuine needs of material information of the charged officer to effectively present his defence and accommodates him to an optimum extent. The PO is already done his homework and is ready for the offence. Allow the CO due opportunities for collecting necessary material for an effective defence, and consider all such requests of the CO with an open mind. The complete process of this stage is detailed in the next Page

3. Getting & Assessing the Evidence at the Regular Inquiry :

He is the course director and moderator. He ensures smooth flow of inquiry processes and reconciles conflicts on the spot. He is a keen observer. He is also a good history writer, as he records every material detail of the proceedings in the daily order sheet.He minutely follows the sequences of the unfolding evidence by the respective sides and take noting of significant facts/information relevant to the "Issues". In pursuance of this objective

o He must study the documents filed by the presenting officer and later by the charged officer at the earliest available gap of time and note the significant data/information contained therein.

o Likewise he will also be closely and attentively following the examination, cross-examination and re-examination of each witnesses towards the same objective.

o Such simultaneous observation/study will enable the inquiry officer to clear gaps or apparent irrelevancy in emerging evidence by way of putting supplementary questioning by him to the witnesses, to recall earlier witnesses when necessary and to call for additional records (documentary evidence).

Accordingly if he observes gaps or apparent discrepancies in the evidence presented, he takes the initiative and recalls any witness or calls for additional witness to question them and to get the clear picture. He can also call additional records. To make the disciplinary case complete, he also questions the charged officer on any point or points appearing against him, for his clarification. In short the DA regulations contain provisions to enable the inquiry officer to be pro-

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active and perceptive during the inquiry proceedings, instead of merely being receptive and reactive to the sequence of what is presented.

4. Assessing/Analysing the Evidence in total & Arriving at final Conclusions After completion of the Inquiry for Submitting the Report of the inquiry Officer - :

He acts as a reliable adjudicator. He looks to the evidence presented from either side on each imputation and draws a logical conclusion, if it is proved or not. He draws his report and submits the same to the Disciplinary Authority. The complete process is detailed in the last page (Page" 4) His job now ends. He cannot retrace or revise his own report once it is submitted to the Disciplinary Authority.

Profile of the Inquiry Officer Provision of Essential Facilities to the Charged Officer

The first obligation of the employer after serving a charge sheet to the delinquent employee is to appraise him in toto the material supporting the charge sheet and render him due facilities in terms of making relevant records in its possession available to the charged officer to prepare his defence. The occasion to provide these facilities is the preliminary inquiry. The inquiry officer has to attend to this formality before the regular inquiry is to commence. The charged officer is generally provided a time span of about 30 days to peruse and understand the evidence of the management in support of the charges against him and to develop his own defence. There are other occasions where the inquiry officer has to provide further enabling facilities to the charged officer to present his defence. This topic is discussed in detail in this page.

The specific contexts, where the Inquiry Officer (IO), as part of his functions has to extend due support to secure the bonafide needs of the charged officer (C0) to prepare and present his defence is dealt with under two categories as under:-

1. Complete information about the material on which the imputations in the charge sheet are based. In short he must have a total glimpse of the entire evidence that the presenting officer will be adducing in support of the charges. It is customary to provide the CO with one set of copies of all management evidence, with a further facility to inspect the original records, from which the copies are made. The CO is also to be given copies of recorded statements of management witnesses. This will enable the charged officer to satisfy himself about the authenticity of the evidence and to impeach such evidence in case of inherent deficiency. These information are also required to enable him to prepare his defence and therefore to be provided to the charged officer before the commencement of the regular inquiry.

2. Due opportunities to discover and produce appropriate and relevant evidences demanded by the charged officer for his defence, subject to his stating the relevancy of such documents for the purpose of

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pleading his defence. As the evidence of the defence has to be secured from the records of the employer and in the custody of the employer, the inquiry officer has to take due steps to enable the charged officer secure access to inspect the original records and to obtain copies thereof.

Provision of the Services of Defence Assisting Officer (DAO) as per Choice of the Charged Officer

IO should take steps to enable the CO to get the services of DAO as per his choice. The problem arises when the controlling authority of the employee mentioned by the charged officer as DAO, declines to relieve him, on the ground that his services cannot be spared. There are no guidelines in PNB (whose DA regulations I have taken as a model for our study) to meet this contingency. However there are guidelines issued by Government of India with regards to disciplinary cases against civil servants, as also by Railway Board in respect of disciplinary cases against Railway servants. These guidelines are discussed in detail in the chapter on FAQ on departmental inquiries titled guidelines of the Govt of India when the controlling authority refuses to relieve the DAO nominated by the charged officer to assist him. Providing a DAO as per the choice of the charged officer discharges the responsibility of the inquiry officer and renders the inquiry bonafide.An extract of guidelines from CVC Manual is reproduced hereunder: "As soon as the accused Government servant informs the Inquiry Officer of the name and other particulars of the Government servant who has been chosen by him to assist in the presentation of his case, the Inquiry Officer will intimate this fact to the controlling authority of the Assisting Government servant concerned. Further, the date and time of the hearing should be intimated to the said controlling authority sufficiently in advance adding that if, for any compelling reason, it is not practicable to relieve the Government servant concerned on the due date or dates to attend the inquiry, the Inquiry Officer, the accused official and the Government servant chosen for assisting the accused official may be advised well in advance." (CVC Manual Chapter -11).Such refusal to be bonafide must be conveyed by the authority next higher in rank to the controlling authority of the Officer asked for as DAO. Opportunities to be given to the charged officer to select an alternate DAO considered suitable by him. Inquiry should not be hastily rushed through without the DAO provided. Recorded proceedings should convey the actual developments. Inquiry officer should be seen in the role of a moderator in this situation and not simply a spokesman of the management. The problem should be tactfully handled and smooth proceedings of the Inquiry should not be vitiated.

Consideration of Relevancy of Defence Lists of Documents and Witnesses

The charged officer is eligible to secure a much wider latitude in terms of approving relevancy of documents by the inquiry officer, subject to his satisfactory explanation on this point.

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The PO need only to prove the facts of the imputations and need not prove the motives and other attendant matters in an inquiry. This is because as already explained the quantum of proof needed is restricted to establishing the preponderance of probability. The charged officer is then called upon to explain the facts appearing against him through evidences and his arguments, convincingly. If he fails to do the imputations will be deemed as proved, even without proof beyond doubt. Now as a concrete example the allegation states that "there was poor follow-up in a credit account by charged officer and on account thereof the account had gone sticky. Here that the account went sticky can be regarded as a fact and the statement about "poor follow-up" may be a conclusion. As per the concept of preponderance of probability, the PO will prove the fact that the account has gone sticky. He may also prove any relevant fact, which support the conclusion that there was poor follow-up. He need not have to prove that there was poor follow-up more than that. However the Charged officer can establish through evidence that the account has not gone sticky, then he has disproved the fact.If, however, if the CO is unable to disprove the fact that the account has turned sticky, then the IO will look what the charged officer has to explain in this regard. For example the CO may bring in evidence that there was a prolonged strike/lockout in the borrowal unit and it is only due to this reason, the borrowal account had gone sticky and that it being beyond his control, there was no omission on his part. Here the 'strike/lockout' is a relevant fact and that the account went sticky on account thereof is a conclusion, intended to explain how the account went sticky. If this argument of the CO deserves weight and credibility, it may be accepted. Then the charge is not proved, since the CO has explained the imputation.The obvious point is that CO has to bring in evidence to explain the allegation. He has to establish in this particular case that there was a prolonged labour Strike/Lock out in the unit. At the outset the issue of a strike may appear to be not a fact-in-issue with reference to the charge sheet, but when the CO explains its material relevancy to the particular imputation, this information qualifies as a "relevant fact". The IO has to permit introduction of this evidence. Otherwise the CO would not be in a position through bonafide means to rebut the imputationFurther to give due opportunities to the CO to explain properly all circumstances appearing against him, the procedure for departmental inquiries, borrowing a leaf from the Prevention of Corruption Act, permits the CO to appear as his own witness and tender evidence in his own favour [PNB DA Regulation No.6(16)]. A similar provision is contained in Prevention of Corruption Act,1988 under Section 21 styled "Accused Person to be competent witness". However no one can force the charged officer to appear in the witness stand. It is exclusively his option and privilege. The relevant provision in P.C. Act is discussed in Chapter-5 of P.C. Act in the legal supplement. Those interested may surf the page and study the same. All these contingencies have to be considered while assessing the relevancy of defence documents as explained by the charged officer.Refusal of the Custodian of Defence Documents to produce the same

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This surface on occasions when the custodian of the document takes the plea that the document is a confidential record and cannot be produced. This is another pique situation for the Inquiry Officer. CVC manual gives the following guidelines:"If the Head of Department is satisfied, for reasons to be recorded by it in writing, that the production of all or any of the documents will be against the public interest or prejudicial to the security of the State, it will inform the Inquiry Officer accordingly and the Inquiry Officer will, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.Denial of access to documents, which have a relevance to the case, will amount to violation of the reasonable opportunity mentioned in Article 311(2) of the Constitution. Access may not, therefore, be denied except on grounds of relevancy or in the public interest or in the interest of the security of the State. The question of relevancy has to be looked at from the point of view of the Government servant and if there is any possible line of defence to which the document may be in some way relevant, though the relevance is not clear at the time when the Government servant makes the request, the request should not be rejected. The power to deny access on the grounds of public interest or security of State should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer.The Ministry of Law have held that under the existing frame work of the rules, no authority other than the Head of Department can be said to have the custody or possession of documents of the Department, though such custody or possession may be constructive. In the circumstances, a subordinate authority is not competent to claim privilege in respect of the requisitioned documents. The authority concerned should transmit the requisition to the Head of the Department for his decision and communicate the same to the inquiring Authority as soon as possible. The following may be cited as examples of documents, access to which may reasonably be denied :

i. Reports of a departmental officer appointed to hold a preliminary inquiry or the report of the preliminary investigation of SPE:These reports are intended only for the disciplinary authority to satisfy himself whether departmental action should be taken against the Government servant or not and are treated as confidential documents. These reports are not presented before the Inquiry Officer and no reference to them is made in the statement of allegations. If the accused officer makes a request for the production/inspection of the report of the Investigating Officer, S.P.E., the Inquiring Authority should, instead of dealing with it himself, pass on the same to the Disciplinary Authority concerned, who may claim "privilege" of the same in public interest as envisaged in proviso to sub-rule (13) of Rule 14 of CCS (CCA) Rules, 1965.

ii. File dealing with the disciplinary case against the Government servant:

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The preliminary enquiry report and the further stages in the disciplinary action against the Government are processed on this file. Such files are treated as confidential and access to them should be denied.

iii. Advice of the Central Vigilance Commission :The advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the Government servant. (However, there is revised thinking on this subject and CVC themselves have advised the disciplinary authorities to make available the copies of their advise.)

iv. Character roll of the officer. :The CR of the official should not be shown to him.

The following records, may however be provided to the charged officer1. Copy of the F.I.R. may be made available to the accused, if asked for. 2. Report of preliminary enquiry is referred to in the article of charge or

statement of allegations, it has to be made available to the accused Government servant."

Supply of Copies of Documents to the Government Servant- Guidelines of CVC - Manual - Chapter -11

The CCA Rules do not provide for copies of documents being made available to the Government servant. The request of a Government servant to take Photostat copies of the documents should not be acceded to as that would give a private photographer access to official documents which will not be desirable. However, if the documents of which Photostat copies are asked for by the Government servant are considered by the inquiry officer to be vitally relevant to the case of the accused, for example, where the proof of the charge depends upon the proof of the hand-writing or where the authenticity of a document is disputed, Inquiry Officer should itself get Photostat copies made and supply the same to the Government servant.

Documents held up in Courts

In respect of documents which are required for the enquiry but are held up in a court of law, the CBI will persuade the courts to part with the documents temporarily or will get Photostat copies. Where the courts are not prepared to part with the documents and if the accused public servant insists on seeing the originals, the possibility of making arrangements for the accused to inspect the documents in the courts should be examined in consultation with the CBI.

Furnishing Copies Of Recorded Statements of Management Witnesses

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The charged officer should know the totality of evidences in favour of the charge sheet or in support of the allegations against him, to enable him to prepare his defence. Regulation 6(10)(b)(iii) is quoted as under:-6(b) the inquiring authority shall also record an order that the officer employee may for the purpose of preparing his defence-(iii) be supplied with copies of statements of witnesses, if any, recorded earlier and the inquiring authority shall furnish such copies not later than three days before the commencement of examination of the witnesses by the inquiring authority;

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Statement of witnessesGuidelines as per CVC Manual on the subject are reproduced below:"If at the first hearing the Government servant requests orally or applies in writing for copies of the statements of witnesses mentioned in the list sent to him with the articles of charge and by whom the articles of charge are proposed to be sustained, the Inquiry Officer will furnish him with copies thereof as early as possible but in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority." "The question whether statements made by the witnesses during the preliminary inquiry/investigation can be straightway taken on record as evidence in examination-in-chief at oral inquiries has been examined by the Department of Personnel & AR. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accordance with the principles of natural justice to take on record the statements made by the witnesses during preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness concerned on its being read out to him. By adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. Instead of recording the evidence of the prosecution witness, de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance (at least 3 days) of the date on which it is to come up for inquiry."As regards the statement recorded by the Investigating officers of the CBI, which are not signed, the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded thereunder that it had been read out to the person concerned and has been accepted by him.

Summoning of Witnesses

Guidelines contained in CVC Manual are reproduced hereunder:Under Section 5(1) of the Departmental Inquiries (Enforcement of Attendance of the witnesses and Production of documents) Act, 1972 every Inquiring authority authorised under section 4 shall have the same powers as are vested in a civil court under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any witness and examining him on oath, requiring the production of any document or material which can be produced as evidence etc. Thus he has the power to enforce attendance and it is his duty to take all necessary steps to secure the attendance of both sides. While the accused public servant should be given the fullest facilities by the inquiring authority to defend himself and with that end in view, the witnesses which he proposes to examine should ordinarily be summoned by the inquiring authority, it is not obligatory for the inquiring authority to insist on the presence of all the witnesses cited by the accused public servant and to hold up proceedings until their attendance has been secured. The

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inquiring authority would be within his right to ascertain in advance from the accused public servant what evidence a particular witness is likely to give. If the Inquiring Authority is of the view that such evidence would be entirely irrelevant to the charge against the public servant and failure to secure the attendance of the witnesses would not prejudice defence, he should reject the request for summoning such a witness. In every case of rejection, the Inquiring Authority should record his reason in full for doing so. The inability to secure attendance of a witness will not vitiate the proceedings on the ground that the government servant was denied the reasonable opportunity. The Supreme Court in the State of Bombay vs. Narul Latif Khan (AIR 1966 SC 269) have observed that if the accused officer desires to examine witnesses whose evidence appears to the Inquiry Officer to be thoroughly irrelevant, the Inquiry Officer may refuse to examine such witnesses but in doing so, he will have to record his special and sufficient reasons.There can be no objection in principle in accepting the request of the public servant under enquiry to summon the presenting officer or his assisting officer as a defence witness, if in the opinion of the inquiring authority, their evidence will be relevant to the enquiry.The notices addressed to the witnesses will be signed by the Inquiry Officer. Those addressed to witnesses who are Government servant will be sent to the Head of the Department/Office under whom the Government servant who is to appear as witness is working for the time being with the request that the Head of the Department/office will direct the Government servant to make it convenient to attend the enquiry and to tender evidence on the date and time fixed by the Inquiry Officer. Non-compliance with the request of the Inquiry Officer by the Government servant would be treated as conduct unbecoming of a Government servant and would make him liable for disciplinary actionThe notices addressed to non-official witnesses will be sent by registered post A.D. in cases emanating from the CBI, the notices addressed to non-official witnesses may be sent to the Superintendent of Police, SPE branch concerned for delivery to the witnesses concerned. The presenting officer, on behalf of the disciplinary authority, with the assistance of the investigating officer will take suitable steps to secure the presence of the prosecution witnesses on the date fixed for their examination.As regards defence witness, an equitable stand has to be followed and there should be no discrimination, once the justification for the defence witness and his/her material relevance as witness is accepted. Summons for all Defence Witness for appearance at the place on the date and time should be prepared signed by the Inquiry officer. These may be handed over to the charged officer for proper delivery. The IO should also send copies of summons in respect of defence witnesses, who are employees of the bank to the respective controlling officers, to enable such witnesses to be relieved for giving evidence.

Attendance by Witnesses Cited by the DefenceDoes the witness summoned by the inquiry officer on behalf of the defence has option not to attend the proceedings? All employees of the Bank summoned as witness by the inquiry officer irrespective on whose behalf

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should be treated at par. Perjury by any witness should be treated equally as a serious misconduct, if proved. Every witness summoned is expected to participate in the inquiry. Valid reasons for non-attendance to the satisfaction of the inquiry officer must be submitted in either case. Thus there can no discrimination between management witnesses and defence witnesses in a fact-finding inquiry. It is the duty of the inquiry officer to regulate this formality equitably. In any case defence evidence should not suffer by default, i.e. non-production (though available and within the power of the Bank to produce). Then it is not an objective inquiry.

Requests and Representations etc. During the Inquiry-CVC Guidelines

Sometimes allegations are made that a request or representation was made but the inquiring authority did not consider the same. In order to avoid such complaints the inquiring authority should record a note in the Daily Order Sheet on the very day stating the gist of the request of representation made and the orders passed thereon. Such notes should form part of the record of the inquiry.If the Government servant alleges bias against the inquiring authority, the inquiring authority should keep the proceedings in abeyance and refer the matter to the disciplinary authority. He should resume the inquiry only after he is advised by the disciplinary authority to go ahead with the inquiry. In case the Government servant moves the application to the appellate authority against the appointment of a particular inquiring authority, the proceedings should be stopped and the application, along with other relevant material, be referred to the appropriate appellate authority for consideration and appropriate orders.

Guidelines to the Inquiry Officer for Conducting the InquiryBased on the provisions of the DA Regulations of the organization you represent, the inquiry is to be conducted. However the DA regulations of all Public Sector Organizations and Government Owned Bodies are modeled on the CCS (CCA) Rules,1965. They are all nearly identical. The CVC adopts a common inquiry procedure through their Commissioners of Departmental Inquiries in respect of inquiries of all public servants. Certain preliminary guidelines needed at the outset when the officer was appointed as IO and the facilities to be provided to the charged officer to know the the material on which the imputations are based and also to prepare his defence have been covered already in the earlier two pages.

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Compiling Notes by Inquiry Officer while Evidences are presentedNo doubt evidences are recorded and got signed by all including the witness concerned and become part of the inquiry. But it is a good practice for an inquiry officer, to note significant facts and arguments relevant to the issues of the charge sheet emanating in the process of the testimony of each witness. While taking notes mark separately significant facts proving/disproving an imputation and significant argument, supporting or rebutting a conclusion. This is in addition to the original analysis of the charge sheet and reply of the charged officer for the charge sheet submitted to the disciplinary authority and identifying the issues involved in the charge sheet to be decided in the inquiry. The inquiry officer was also advised earlier to study the management and defence records (documentary evidence) after these are filed respectively and note the significant facts evidenced therein relevant to the issues of the charge sheet aforesaid. This will alert the inquiry officer when incomplete or mutually contradicting evidences are presented on an imputation by the P.O and later by the CO. Supplementary questions and clarifications can be asked by the inquiry officer in such a situation. He may also call for additional records or witnesses if need be, since only one evidence can be true, and there cannot be both proof and disproof for a single imputation or conclusion. Here the inquiry Officer has to accept the most reasonable argument and discard the other. Recording simultaneous notes will thus keep the inquiry officer to identify areas of apparent conflict in the evidence. The notes will also be very helpful to the inquiry officer at the time of preparation of his final report.

Admission of Additional Evidence on Behalf of Disciplinary Authority-

Guidelines of CVC

Before the close of the case on behalf of the disciplinary authority, the inquiry officer may, in his discretion, allow the presenting Officer to produce new oral or documentary evidence not included in the lists of documents and witnesses given to the Government servant with the articles of charge. In such a case the Government servant will be entitled to have, if, he demands it, a copy of the list of further documents proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence exclusive of the date of adjournment and the date to which the enquiry is adjourned. The inquiry officer will also give the Government servant an opportunity of inspecting such documents before they are taken on the record.The inquiry officer may also, at his discretion, permit the Presenting Officer, to recall and re-examine any witness. In such a case the Government servant will be entitled to cross-examine such witness again on any point on which that witness has been re-examined.The production of further evidence and/or re-examination of a witness will not be permitted to fill up any gap in the evidence but only when there is an inherent lacuna or defect in the evidence which had been produced

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originally. The presenting officer should, therefore, when he finds that there is any lacuna or defect in the evidence and that fresh evidence to remove the defect or lacuna is available or that the position can be clarified by recalling a witness, make an application to the inquiry officer to the effect.

Preparation of Daily Order Sheets by IO

The sequence of actions/steps taken daily in the inquiry proceedings are to be reduced in writing every day. These are called 'order sheets'. The order sheets are to be signed by the inquiry officer and counter-signed by all the other participants to the inquiry, namely, the presenting officer, the charged officer and the defence assisting officer, if any. Copies of the order sheets to be given to each participant. The order sheet should be a true and faithful record of the day's proceedings. It should commence with the date, place and time of inquiry and the persons present (by name & status in the inquiry, i.e. 'CO','PO' etc.) and then follow with the sequence of events that took place on that day. It will also include any procedural objections raised by the CO with reference to the conduct of the inquiry and the ruling if any given by the IO.

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Recording the testimony of Management/defence witnesses

Additionally the testimony of each witness for the management or on behalf of the charged officer examined should also be recorded simultaneously and this should be signed by the witness and counter signed by the charged officer, presenting officer and defence assisting officer, as also the inquiry officer.

These records will help to establish the bonafides of the inquiry process adopted and the fact that all proceedings took place in the presence and with active participation of the charged officer. While acting on the report of inquiry submitted by the inquiry officer, the disciplinary authority would carefully scrutinize that all procedural formalities connected with the conduct of the inquiry were scrupulously followed and the charged officer provided due opportunities and facilities. In case of gross violation of the inquiry procedure, the disciplinary authority may set aside the inquiry conducted and order a fresh inquiry. The inquiry officer has therefore to pay due attention to the procedural requirements of the inquiry, and ensure that these are strictly adhered to.

In Case the Charged Officer Refuses to Cooperate or toActively Participate in the Inquiry

Detailed procedure to be followed scrupulously.

How to Moderate Questioning by Either Side whileExamining/Cross-Examining Witnesses

What if vulgar questions are asked, or questions impeaching the personal character of the witness, which are irrelevant to the inquiry, are asked? The Indian Evidence Act, gives clear guidance. Once you become familiar with the provisions of parallel law, its adaptation will be easier in a commonsense-backed departmental inquiry. Avoid the technicalities of the law, but accept the core spirit thereof. Questions are intended to be asked to bring material facts, to bring about the truth, to demolish the falsity and to establish the veracity or otherwise of witnesses. Though not directly applicable, The Indian Evidence Act under Sections 135 to 166 covers this topic, and knowledge of the provisions will be extremely useful to the different participants of a departmental inquiry. This part of the Act (also its last part) deals with the Examination of witness and covers -

the manner in which a witness is to be examined by the party who calls him,

What kind of question can be put to him? and What kind of questions cannot be put to him? and How the opposite party can test the veracity of deposition? and How his credit-worthiness be impeached

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While the technicalities of the Act need not be brought in an inquiry conducted departmentally, those parallel provisions, which are relevant and appealing to the commonsense of the inquiry officer are useful as guidance material.

Relevant Provisions of The Indian Evidence Act,1872-Questions lawful in cross-examination

1. Witness to character can be cross-examined and re-examined (Sec.140) 2. Leading Questions may be asked in cross-examination (Sec.143)

3. A witness may be cross-examined as to previous statements made by him in writing and relevant to matters in question (sec.145)

4. Other Lawful Questions-

o Questions to test the veracity of the witness

o to discover who he is and what his position in life, or

o to shake his credit, by injuring his characterQuestions, which are not to be Asked in Cross-Examination

1. Questions not be asked without reasonable grounds. In other words one cannot embark on a 'fishing expedition' (Sec.149)

2. Indecent and Scandalous questions cannot be asked (Sec.151) 3. Questions intended to insult or annoy, or questions needlessly

offensive in form cannot be asked (Sec.152)Refreshing Memory (Sec.159 & 169)

While under examination, a witness may refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned. The writing could also relate to those made soon after the transaction. When the original of such document is not produced, but a copy has been produced, the witness may refresh his memory by referring to the copy.

What to Look for or how to Fix the Issues in an InquiryOf course the truth is to be proved, but this statement does not make you wiser, since truth is abstract and we do not know at this stage, what the truth is. It will be worthwhile to learn a few basic concepts from the Indian Evidence Act, 1872. The report of the Inquiry Officer is called a fact-finding report. What are facts? And how to find them? Fact:Is anything capable of being perceived by the senses or any mental condition of which a person is conscious.But we are not concerned with any and every facts. What are appropriate facts for the inquiry and with particular reference to the charge sheet?Facts-in-issue:This means those fact(s), which by itself or in combination with other facts proves or disproves the existence or non-existence of any right, liability or

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disability asserted or denied in the Inquiry. That is, it forms the subject matter of the proceedings (inquiry), in other words the disputed allegations in the charge sheet. The PO has to prove the facts-in-issue and the charged officer is interested in disproving/explaining them satisfactorily i.e. "disarming" the facts-in-issue.Relevant fact:One fact is said to be relevant to another, when it is connected with the other. In other words relevant facts are connected or background information to the allegations/imputations. Some of them may not be disputed.(e.g "that the charged officer worked in a branch in a particular year". This is a relevant fact intended to amplify the subsequent fact-in-issue that at that branch the charged officer committed a particular misconduct, which would become a fact-in-issue, if disputed.Evidence may be given not on any or every facts, but only pertaining to "facts-in-issue" and "relevant facts" (i.e. facts that go to materially support or amplify "facts-in-issue"). "Facts-in-issue" (otherwise called the "imputations") are to be proved or disproved. All evidences to be brought in only with this goal. All evidence brought in must confirm to the standard 'relevant fact'. Relevancy of evidences to the facts-in-issue (imputations) is a very important criteria and meticulously insisted in an inquiry, so that the inquiry does not shift outside of its domain. The charged officer, while submitting the list of defence evidence to the inquiry officer, has to explain the relevancy of each and every witness and documents that he proposes to introduce and the Inquiry Officer will carefully scrutinize the same, before permitting such evidence to be introduced in the inquiry. Similarly the authenticity of the evidences (documents) introduced by the P.O. will be scrutinized with equal care by the charged officer, and he can object and "impeach" those documents that are not material to the inquiry.To learn more on the concept "Relevant Facts" you must study chapter II (Sections 5 to 31) of the Indian Evidence Act. For the benefit of the viewers of this web site, Indian Evidence Act is comprehensively discussed in six parts under the Project Literature on Law (also called Legal supplement)

(http://in.geocities.com/kstability/projects/law/index.html).

Partly-heard Inquiries- Guidelines of CVC

If an Inquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry ceases to function as Inquiry Officer for any reason, and a new officer is appointed as Inquiry officer for conducting the inquiry, the new Inquiry Officer in his discretion may proceed with the enquiry de novo, or from the stage left by the predecessor and act on the evidence already recorded by his predecessor or the evidence partly recorded by his predecessor and partly recorded by him, depending upon the stage at which the previous Inquiry Officer ceased to function.However, if the new Inquiry Officer is of the opinion that a further or a fresh examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may recall the witness or

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witnesses for examination, cross-examination and re examination in the manner provided.

Stay of Disciplinary Proceedings under the Orders of the Court Guidelines of CVC

The question of stay or adjournment of oral inquiries in disciplinary proceedings conducted by the Inquiring Authorities, when the delinquent officer goes to a court of law, has been considered in consultation with the Ministry of Law. The proceedings need not be adjourned or stayed in the following circumstances :-

a. On receipt of notice under Section 80 of Civil Procedure Code; b. On receipt of intimation that the impugned officer proposes to file a

writ petition; c. On receipt of a mere show cause notice (or Rule NISI) from a court

asking :-i. why the petition should not be admitted; or ii. why the proceedings pending before Disciplinary Authority/

Inquiring Authority should not be stayed; or iii. why a writ or an order should not be issued?

The proceedings should, however, be stayed only when a court of competent jurisdiction issues an injunction or clear order staying the same.

How to analyse the Records of Inquiry & SubmitThe Report of the Inquiry Officer

The oral inquiry is concluded and the briefs of both the PO & CO are received. At this stage the IO reaches the last point of his assignment that is, objectively analysing the volume of evidences presented by either parties and reaching, logical conclusions supported by definite grounds in respect of each imputation of misconduct to be able to record these findings in his report. The sum-total evidence presented are covered in several documents and these are referred as the "Records of Inquiry" as defined in Regulation No.6(21)(ii)(b) to (e) of PNB Officer Employees DA Regulations, 1977.

What are the Records of the InquiryAs far as the management's evidences are concerned these records are linear, i.e. forming a start with a definite beginning and terminate by a clear end through a step by step process with no back-turn at any stage. These records are:

1. Charge sheet - an abstract statement forming the start 2. Listed (Management) documents

3. Statement of listed (management) witnesses duly vetted by cross-examination by CO

4. Facts substantiated in favour of the management case in the cross-examination of defence witnesses by the PO

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5. 2 to 4 are intended to amplify the contents of the charge sheet with required proof.

6. Summary of the above in a narrative form in the brief of the PO (the end)

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Records of the defence are as under:-1. Defence statement. This is similar to a counter filed by a defendant in

a civil suit in reply to the plaint filed by the plaintiff. 2. Defence documents 3. Facts substantiated in favour of the defence case in the cross-

examination of management witnesses by the CO/DA4. Defence witnesses duly vetted through cross-examination of PO 5. Oral witness of the charged officer, if given as per rules.

6. Defence brief as per rulesThe defence documents are not linear, but circular. What is contained in the defence statement is corroborated by defence evidence and summed up by defence brief. The written statement of reply to the charge sheet submitted by the charged officer to the disciplinary authority is not a record of inquiry, though a copy of this is furnished by the disciplinary authority to both the IO and PO. There are also supporting or ancillary records of Inquiry, which are neither material records nor deemed as Records of Inquiry, but are intended to evidence the due compliance procedural details of the inquiry, and to prove that the inquiry was conducted as per standards prescribed by the DA Regulations.Example

1. Daily order sheets 2. Written statement of the charged officer, if received by the inquiry

officer from the disciplinary authority 3. Other documents received by the inquiry officer from the disciplinary

authority like order of appointment of the inquiry Officer and presenting officer

4. Letter from the charged officer, if any, intimating the name of the defence assisting officer

5. Letter of CO submitting list of defence records and witnesses with justification/relevancy

6. Orders of the IO approving or modifying the same

7. Copies of letters of IO intimating dates of preliminary inquiry and later regular inquiry to PO, CO and DAO

8. Copies of summons forwarded by the IO to both management and defence witnesses

Is the Defence Statement a Record of EvidenceThe defence statement is a basic record, just as the charge sheet is one such basic record. Both are the initiators respectively of the management and defence case. As the charge sheet is substantiated by the management documentary and oral evidences, the defence statement has to be substantiated by the documentary/oral evidences to be filed by the charged officer. It may be pointed out that facts/statements mentioned in the defence statements which are not contested by the PO, either in his brief or through

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the management evidence, form the nature of uncontested statements and can be accepted as evidence, just as imputations in the charge sheet specifically not denied by the charged officer become uncontested imputations and accepted as proved. Otherwise than as provided above the inquiry officer should not accept assertions in the defence statement in favour of the charged officer and give weight for his case. However own evidence testified by the charged officer and allowed to be cross-examined by the PO, forms part of defence records.

Demeanor of the Witnesses & Charged Officer

Body gestures and spontaneous emotions/reactions displayed during the testimony by different witnesses and by the charged officer, if intelligently followed, reveal significant in-depth data about the way their minds are working. This is called the demeanor of the witness/charged officer. Though this may not be cited as a material ground, it will convey to the inquiry officer the veracity, disposition or pre-set position of the witness or the charged officer. In other words it may indicate the direction in which the wind is blowing. Some such cases:

1. If the charged officer is hostile and putting obstructionist tactics, IO may presume that he has no strong defence and lack confidence in his case.

2. If the charged officer is seen raising too may procedural issues without material relevance, the same conclusion can be drawn.

3. If the charge officer is generally cool and calm and concentrates on the core issues, he may have a case.

4. If a witness is seen nervous in cross-examination, he may be a coached witness and trying to suppress some information.

5. If a witness shows extremely powerful memory on a particular minor incident, but when cross-examined is not able to recollect attendant facts, he may be a coached witness.

Too much, however, should not be relied on the demeanor and taken as a principal logic in arriving at the conclusions by the inquiry officer. Demeanor is generally used as a 'thread' or 'line of scrutiny'. It is a starting point to pursue a particular line of reasoning. Conclusions will be confirmed, if there are supporting additional material.Once inquiry is completed and both PO and CO submit their respective briefs, the Inquiry officer is possessed of the complete set of the records of the inquiry. His next job is to draft and submit the Inquiry officers report, which should be deemed as the end-product of the departmental inquiry. But this would be possible only if the inquiry officer is able to make a thorough and objective analysis of the entire maze of the records of the inquiry.

The Concept of Burden of Proof or Onus/Responsibility of provinga statement or Assertion

It is the responsibility of the charged officer to raise objections on procedural matters etc. at the earliest opportunity. Likewise when certain statements

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are made against him, he must avail the earliest opportunity to deny/rebut the same. As against this is the concept of "Burden of Proof". What is Burden of Proof?There are two cardinal principles that a PO/CO must keep in their minds. The first is that your statements/assertions become strong when stated at the earliest opportunity. But in Civil/Inquiry proceedings, there is also what is known as the rule of "the Burden of Proof" (Sec.101 Indian Evidence Act). The meaning of the phrase "burden of proof" is not defined in the Evidence Act. The burden of proof as a matter of law and pleading-the burden, as it has been called, is that of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative statement is usually incapable of proof.The management asserts the positive, i.e. that you are at fault and you, the charged officer pleads the negative, i.e. that you are not at fault. It is for the Management to first put up evidence to show that you are at fault and your responsibility, for response rests only thereafter. Thus the burden of proving the charges against you initially rests with the management. You are, therefore expected not to rebut to the charges at the initial stage, but only to deny the charges and silently listen and understand fully the material that is placed by the management in support of its case against you. Your responsibility for rebutting the charges and vindicating yourselves arises only thereafter. In other words you are to disclose your hands only after the other side first unfolds its hands and allow you to see what all they hold.The inquiry officer must keep this cardinal rule in mind while assessing evidence. As far as the charge sheet is concerned, it is the duty of the PO to subscribe evidence in the first instance to prove the allegations. If he fails in this in respect of any particular imputation, even if the charged officer offers no explanation against the particular imputation, it cannot held as proved. The benefit in respect of this imputation would go to the charged officer with the description "not proved".But if the charged officer were to make any assertion about non-provision of a facility or violation of any rule, the burden of proving his assertions shifts to him.

How to Demarcate the Borderline between Truth and Falsitywhile Assessing Evidence of Respective Sides

The rule that statements advanced by one side which are not contested by the other party are deemed to have been proved by the Law of default. Thus if the charged officer does not contest an imputation mentioned in the charge sheet, it amounts that he accepts the same. Similarly if the presenting officer does not contest any relevant and material assertion by the charged officer in the defence statement made, (at least in his brief), the presumption will be that the PO accepts the same. The same rule applies to statements in the testimony of respective witnesses.Thus if the management witness makes an assertion, which the charged officer claims is false, the charged officer may contest the same, even though he is not able to get a direct answer from the witness to establish the

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point in his favour. In such an occasion the charged officer may simply ask the witness as under - "I say what you have stated is wrong and you know it fully. What have you to explain for this." To such a question the management witness will again assert that he has only told the truth. Such a stand during the examination of a witness either by the CO or PO has the effect of contesting the evidence, when it is considered that the witness is testifying a "perverse" statement i.e. that is he is asserting something as true, though he is fully aware that what he has stated is false.The demeanor of the witness and overall consideration like personl interest, if any, of the witness concerned etc. should enable the inquiry officer to take a stand either to accept the evidence of such a witness or not. But if the witness is able to corroborate his statement with additional relevant facts, the weightage of acceptance may go automatically in his favour.

How to Analyse/Assess Evidence and Draw ConclusionsThe Steps are as under:

1. Collect the entire records of the inquiry. These represent records the inquiry and only the contents of these records are to be referred to and conclusions drawn. It is the job of the IO to extract the truth from the maze of these evidences and his report of findings should be precise, clear and logical, i.e. unambiguous. It should be a speaking order, i.e. all conclusions made are suitably explained with the supporting reasons therefor.

2. Study the respective submissions for each imputation of misconduct. You will find material relating to facts and statements interpreting or explaining facts. The latter are called 'arguments' or 'logic' developed by either side

3. Whether the P.O. has proved the facts or whether the C.O. has rebutted and disproved the facts? When the fact(s)-in-issue relating to a particular imputation/article is proved or disproved conclusively, i.e. if the facts-in-issue have been rebutted and disproved, hold the imputation as disproved, and if the facts-in-issue have been conclusively proved hold the imputation as proved, and proceed to the next imputation. These form categorical proof or rebuttal of such imputations, i.e. proving or dismantling an imputation through merely hard facts. To understand this the allegation is to be split into two parts, (i) the premises and (ii) the conclusion. The premises are proved/disproved through hard facts. The conclusions in the inquiry are sustained through arguments.

Now the IO may refer to imputation No.1 and extract the evidences submitted by the P.O. (from the 3 items of management records of inquiry listed above) and separately prepare the gist of evidences of the charged officer submitted in the 5 items, delete replications and a single point should be taken only once. Now you have the sum total of the evidence (relating to "facts-in-issue" and "relevant facts") for this imputation for assessment as stated earlier. An expert IO can also draw inferences from the demeanor of the witnesses on the stand, while deposing, but this can be only deemed as guidance for study of the relative weightage of the evidence as stated earlier. After preparing this analysis sheet, you may score off all items of

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evidence, which are irrelevant, or disproved. This will leave you a final extract comparatively precise and informative gist for dealing. Similarly the inquiry officer should prepare an Analysis sheet or arguments in support of or against each imputation from the records of the inquiry. The simultaneous notes jotted by the inquiry officer during the process of testimony of witness and analyses of documentary evidences filed will be of great value to prepare the analysis sheet. Keep the Analysis sheets with you and draw out your report, as explained subsequently and submit the same to the disciplinary authority with the records of the Inquiry retaining only the analysis sheet with you. All procedural records of the inquiry except the orders of appointment of the IO & PO may also be forwarded to the disciplinary authority. The procedural records will convey to the disciplinary authority that the Inquiry has been conducted observing due standards as needed.

Gist & Contents of The Report Of The Inquiry OfficerThe Report of the Inquiry Officer has to be conclusive and for understanding the contents, there should be no need to refer to other documents including the charge sheet. The report is based on a four-point approach as provided in Regulation 6(21((i),as under:

a. A gist of the articles of charge and the statement of imputations of misconduct and misbehaviour

b. a gist of the defence of the officer in respect of each article of charge;

c. a assessment of the evidence in respect of each article of charge

d. The findings on each article of charge and the reasons therefor

When the article of charge consists of more than one imputation, the order of consideration will be imputation-wise and article-wise. The gist of the article of charges referred under sub-item (a) above should be followed by the gist of the evidences produced by the PO in support of the article/imputation.

IO's Report must be in the Form of a Speaking Order

A ceiling cannot stand aloof in the air. It has to have supporting walls, pillars and foundations. When conclusions drawn are supported by logically discussed analysis of the entire material of the inquiry, the reasons for arriving at a particular conclusion is lucidly explained in the report of the IO. This is referred to as speaking order. Reason for a decision need not be specified in an administrative order, but it has to be necessarily mentioned in a judicial or quasi-judicial order. This gives opportunity for the charged officer to prefer an appeal, if he were to dispute the grounds of the conclusions. It is here you will realise the importance of segregating material facts and arguments as quoted earlier. As the I.O analyses the arguments, and accepts the credible and sustainable arguments and these forms the conclusion for his findings on each imputation. However the IO can use his own words as needed to amplify his points.

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Even though the issues may appear to be simple and the finding on an imputation in one way or other may be easily appealing to your instinct or conviction, following a structured and methodical approach is recommended and has its own value and this will stand by you. Even, at the extreme contingency, if your findings are subsequently proved as wrong, you will still be able to know where and how the error has crept in.Advantages of following a structured procedure by recording a regular analysis sheet and then proceeding to write the Report of the inquiry officer are as under:

1. There is no scope for any material fact or argument advanced by either side during the inquiry getting omitted to be considered by the inquiry officer

2. There is no scope for subjectivity, which is possible when the Inquiry officer writes the report without a preliminary exercise of tabulating the records of inquiry through the analysis sheet

3. There is no scope for external issues or considerations cropping up in the findings

4. Though the system appears as round-about, you will find that you are able to compile your report much quickly. Generally you will be able to complete the report within a week's time after receipt ot the respective briefs.

5. You will also feel after submitting the report that you have done a honest job and this gives you a job satisfaction and a peace of mind, "as you rest your head over the pillow"

Learned judges of the High Court sometimes write judgments stretched to hundred or more pages. So also the reports of expert Commissions appointed by RBI or the Government of India. They all make regular sittings, collect testimony of several persons interested and then compile their report. These reports stand the test of time and become the source of informative literature on the subject. One example, nearer to Bankers, is the Narasimhan Committee Reports. Unless the Report Writer follows a structured procedure for collecting data (evidence) and tabulating it from hundreds of sources in proper and workable form, he will not be able to compile a really informative Report that would bring out all the parameters of the problem posed and address to its workable solution.

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CHAPTER- 12FUNCTIONS OF INQUIRY OFFICER

Introduction

1. Basic objective of the Inquiry Officer (IO) is to conduct Inquiry, record evidence, analyse the same and give a finding as to whether the charges are proved or not. For achieving this objective, the I O is required to carry out a number of activities. Broadly, the activities fall under the following categories:-a) Pre hearing stageb) Preliminary hearing stagec) Regular hearing staged) Post hearing stagee) At any stage during the Inquiryf) Tackling some unusual circumstances which may arise

2. While items (a) to (d) above are self-explanatory, (e) may require some elaboration. Certain actions are required to be taken by the I O during more than one of the above stages of the Inquiry e.g. writing theDaily Order Sheet, issue of certificates of attendance, etc. These aspects are covered at the earliest occurrence of the action. For example, the procedure for writing Daily Order Sheet is explained only under (a) above because the I O starts writing daily Order Sheets during the pre-hearing stage itself.Besides, this write up covers only the basic functions to be performed by the I O till the submission of the I O’s Report. This write up does not cover certain unusual circumstances, which may arise during the course of the inquiry, such as the nonappearance of C O despite repeated requests, or the custodian of the additional documents intimating their non-availability etc. These off the track circumstances are handled separately.[

Pre-hearing stage

3. The function of I O commences from the moment he receives appointment order. He is required to take a number of actions even before the actual hearing of the case commences. The same are as under:-a) Verifying the appointment order and the enclosed documentsb) Preparation of the Daily Order Sheetc) Acknowledging the appointment.d) Analysing and understanding the Chargese) Fixing the date for Preliminary Hearingf) Sending communication to the parties about hearing.g) Informing the controlling officers of Charged Officer and Presenting Officerh) Ascertaining as to whether the Charged Officer has finalised a Defence Assistant and if so informing the Controlling Officer of the Defence Assistant

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4. It is desirable that the IO scrutinizes the order appointing him as IO and the enclosed documents thoroughly. Firstly, the appointment of Inquiry Officer is required to be made by the Disciplinary Authority and no one else. When the President is the Disciplinary Authority, the order of appointment of the I O may be signed by any authority who is competent to sign communications on behalf of the President. At any rate the Order should indicate that the appointment of I O is being made by the President only. Any defect in this regard will lead to an incurable defect in the Inquiry. The complete proceedings will be liable to be quashed if the I O had been appointed by someone other than the Disciplinary Authority. Secondly, in case there is any patent defect in the Charge Sheet, the I-O may bring it to the notice of the Disciplinary Authority well in time so that the defect can be cured. In this context it is essential that I O should not take upon himself the role of refinement of the Charge Sheet. He should confine himself only to the patent errors in the Charge Sheet and not try to make qualitative improvement in it. The difference between the two is explained in the succeeding paragraph.5. An article of Charge in a Charge Sheet read: - “… He exhibited conduct unbecoming of a Government Servant and thereby violated rule 3 of the CCS (CCA) Rule 1964”. It is obvious that this is a clerical mistake because exhibition of conduct unbecoming of a Government Servant is a violation of Rule 3 of the CCS (Conduct) Rules 1964 and not CCS (CCA) Rules. Such errors are known as patent errors. Similarly, any variation in the designation of the individual between Annexures I and II may also fall under the category of patent errors. On the other hand, if the I O feels that the list of documents in Annexure - III or the list of witnesses in Annexure – IV require to be elaborated, such matters are prima facie subjective. Besides, they will amount to enhancing the quality of the Charge Sheet. Suggesting such modifications will be beyond the purview of the I O.6. Similarly, there may be errors in the enclosed documents also. Charged Officer while denying the Charges might have quoted a reference, which is at variance with the actual reference number of the Charge memo. It is desirable that such defects are also brought to the notice of the Disciplinary Authority immediately, so that they may be rectified in time. It may be noted that the above mentioned defects are likely to consume time in the conduct of inquiry. I O is responsible for the expeditious conclusion of the Inquiry. Therefore the I O is well within his rights to bring these defects to the notice of the Disciplinary Authority so that they may be rectified in time.

Activity 1:

Prepare a list of patent errors which the I O may bring to the notice of the Disciplinary Authority Prepare a list of latent errors, which the I O should not try to remove from the Charge Sheet.

7. Daily Order Sheets are the authentic records of the Inquiry Proceedings. They are like the diary of events pertaining to the Inquiry. There is a popular misconception that Daily Order Sheet is required to be made only during the Hearing stage. Daily Order Sheets are in fact required to be made on all the

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days whenever there is a progress in the case, irrespective of whether there is a hearing or otherwise. The first Daily Order Sheet is required to be made on the day when the I O receives his appointment order. Daily Order Sheet is required to be made on any day when IO receives or sends a communication relating to the case.8. It is a good practice for the I O to acknowledge his appointment. This will keep the Disciplinary Authority informed that the I O has taken charge of the matters and is proceeding with the task. In case the I O is not able to take up the appointment, on account of any valid reason, it is all the more important that the Disciplinary Authority is informed well in time. While a person is not expected to turn down the appointment as I O due to personal reasons, there may be circumstances wherein the I O may have to decline to act so in the interest of the case or due to organisational reasons. Such occasions should be extremely rare. But when such circumstances arise, the I O should inform the Disciplinary Authority without any delay together with the complete details.9. Although the I O will be giving his finding in the final report based on the evidence adduced in the Inquiry, it is necessary for him to analyse and understand the charges at the earliest opportunity.10. Basically, a charge is made up of a number of facts and each fact is required to be established through evidence. Inquiry Officer should identify the facts on which a given charge is based and should be able to link the facts to the evidence listed in Annexures – III and IV.11. While fixing the date for the hearing, the I O should consider the location of the parties concerned and the travel time required. Normally the parties concerned should be in the same station. However, there may be cases wherein one or both the parties may be staying in a station different from the one where the I O is posted. Special care should be taken in respect of the cases involving unauthorised absence. In such cases, normally, the organisations correspond with the permanent address of the Charged Officer and the same may be different from the place of posting. In addition to the above, if any of the parties had made any request regarding the date for the hearing, the same may be taken into consideration while fixing the date for the case. I O should advise the parties concerned to make such requests in writing and consider the same only where they are reasonable.

Activity 2:

List the occasions when the I O may have to make a Daily Order Sheet even though no other party relating to the proceedings is present.

Activity 3: -

Why should the I O analyse and understand the charges even before the commencement of the proceedings?

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12. Communication to the parties must be issued well in time so that they may be able to prepare for attending the hearing on receipt of the communication. Besides, I O should personally check the address of the communication and also ensure that the same is actually dispatched after signature by the I O. Copies of the communications should be sent to the controlling officers of the Presenting Officer and the Charged Officer as well. The Controlling Officers should also be specifically requested to spare the PO and CO for the hearing. The Charged Officer should be informed about his right to engage a Defence Assistant. He should also be asked to indicate the Defence Assistant in case identified, along with the willingness of the Defence Assistant and the details of the Controlling Officer. In case the C O informs the I O about the finalisation of a person as his Defence Assistant sufficiently well before the date of hearing, I O should send a communication to the Controlling officer of the Defence Assistant to spare the Defence Assistant for the hearing. At this stage, I O should not make any commitment to accept a particular person as Defence Assistant. Appointment of any person chosen by the CO as Defence Assistant can be made only when the person turns up before the I O and satisfies the I O about his identity and eligibility to function as Defence Assistant.Preliminary Hearing Stage

13. The phase of the hearing from the first appearance of the parties before the I O till the stage of recording of evidence is known as Preliminary hearing. During Preliminary Hearing, I O is required to perform the following actions:

a) Making arrangements for conducting the hearingb) Setting the stage for smooth conduct of hearingc) Asking the statutory questionsd) Finalisation of the question of Defence Assistante) Fixing dates for Inspection of the originals of the documentsf) Fixing dates for the submission of the list of additional documentsg) and witnesses required by the C O for the purpose of his defenceh) Finalisation of the documents and witnesses admissible for defencei) Taking action for procuring the additional documents required for the

defence.j) Settling the issue of disputed documentsk) Taking the documents on recordl) Issue of certificates of attendance to the partiesm) Deciding on the requests for adjournment

14. Even before the arrival of the parties, the I O should ensure necessary seating arrangements for conducting hearing. Preferably, the seating arrangement should be such that both the parties will have equal access to the I O and the I O can watch and hear both the parties comfortably. At any rate, the seating arrangements should not be such as to send any signal that I O is inclined in favour of either of the parties. Besides, it is desirable that no one other than those who are required for the hearing is present in the room while the hearing is in progress. This may not always be possible and it depends upon the space provided to the I O by the organisation. However, I

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O should apply his mind to this aspect. Making a stenographer and a computer available for the recording the proceedings is another aspect to be attended to by the I O.15. Disciplinary Inquiry is an activity wherein tempers are likely to sore. The Charged Officer very often happens to be a charged person. Under such a charged atmosphere, the smooth conduct of Inquiry becomes difficult. Smoother the inquiry, speedier and easier will be the disposal. Inquiry Officer should therefore, take conscious steps to make the inquiry as smooth as possible. Through knowledge of the rules and instructions relating to the inquiry is an essential requirement for this purpose. But this is not all. In addition to the above, the I O should be fair and neutral in his dealings. In this respect, the I O should not only be fair and neutral but also endeavour to create such an impression in the minds of the parties to the proceedings. Thus, transparent fairness is the requirement on the part of the I O for conducting the proceedings in a smooth way. In addition to transparent fairness and neutrality, good practices of interpersonal relations will also go a long way in making the inquiry smooth.16. At the commencement of the inquiry, it is advisable for the I O to check up with the C O as to whether he has faith and confidence on the I O. and record the reply of the C O. This is not a mandatory requirement, but this question is likely to create an impression that the inquiry has been very transparent. In case, the C O expresses any reservation about the neutrality of the I O, he must be apprised of the further course of action open to him for change of I O. Thereafter, the I O is required to ask the following questions:-a) Have you received the Charge Sheet?b) Have you understood the Charges?c) Do you admit the Charges?17. Normally, the answers expected to be “Yes Sir”, “Yes Sir” and “No Sir”. There may be extraordinary cases wherein the CO may contend that he had not received the charge sheet. Proof of delivery of Charge Sheet is one of the enclosures to the order of appointment of the I O. However, if any C O successfully creates a doubt about the delivery of Charge Sheet, I O may make arrangements for providing a copy of the Charge Sheet. As regards the understanding of the Charge Sheet, depending upon the level and educational qualification of the Charged Officer, the I O may explain the Charges to the C O. As regards the admission or otherwise of the Charges, the Charged Officer should not try to guide or persuade the Charged Officer to admit the Charges. On the other hand, even if the C O admits the charges, it is desirable for the I O to caution the C O that an unconditional and unambiguous admission will have to be given in writing and the Disciplinary Authority may impose the penalty on the basis of the admission.18. Often, the Defence Assistant may enter his first appearance at this stage of the Inquiry. Defence Assistant may belong to any one of the following categories:a) Serving Government Servantb) Retired Government Servant

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c) Legal Practitioner (Depending on the circumstances of each case)The above category persons may be from the same station where the Inquiry is being held or from a different station.19. As regards the appointment of a serving Government servant as a Defence Assistant, the I O has the following duties:a) Check the identity of the person concerned i.e. whether he is in fact a serving Government Servant i.e. by checking his identity card etc. (A Government Servant under suspension may be allowed to officiate as Defence Assistant)b) Ask him to confirm that he is not having more than specified number of cases in his hand other than the case in question. Record the same in the Daily Order Sheet and obtain the signature of the Defence Assistant.c) Write a letter to the controlling officer of the Defence Assistant about the fact that he has been allowed to officiate as Defence Assistant in the instant case. It is desirable that this letter is dispatched to the controlling officer of the Defence Assistant direct, rather than handing over the same to the Defence Assistant for delivery.

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20. As regards the appointment of a retired Government Servant as a Defence Assistant, the I O has the following functions:a) Ensure that the Defence Assistant has retired from the Central Government. If necessary, you may ask him to produce his Pension Payment OrderActivity 4: -

Can you list the steps to be taken by the I O for a) Indicating his neutrality and fairness andb) Demonstrating good interpersonal relations

b) Ensure that the retired Government Servant is not a Legal Practitioner. If he were a Legal Practitioner, the provisions the next para will apply.c) Ensure that the retired Government Servant was not dealing with the case in question before his retirement.d) Ensure that he does not have more than specified number of cases (other than the present one). For this purpose, you may have to rely on his statement only.21. When the Presenting Officer is a Legal Practitioner, the Charged Officer acquires a right to engage a legal Practitioner as his Defence Assistant. Otherwise, the Charged Officer may engage a Legal Practitioner only with the permission of the Disciplinary Authority. Hence, in such cases, where the Presenting Officer is NOT a Legal Practitioner, the I O should advise the Charged Officer to apply to the Disciplinary Authority for engagement of Legal Practitioner as Defence Assistant. Under no circumstance, the I O should dispose of any request for engagement of Legal Practitioner in such cases. A legal practioner may be allowed by the DA in the following casesa. when the presenting officer is a legal practitionerb. Where a Government Servant is rightly or wrongly, under a reasonable apprehension that the enquiry was the result of conspiracy against him (KS Rao Vs State, AIR,1957 AP 414)c. Where the record of the case is voluminous and the number of witnesses to be examined is very large (Nitya Ranjan Vs State, AIR 1962, Orissa 78)d. Where the case is highly complicated or difficult involving legal points etce. Where the statement of the witnesses is recorded in English language when the delinquent is illiterate (Babu Lal Vs Chief Justice, SLR 1969, All, 170)22. As regards the engagement of Defence Assistant from outstation, the I O has power to grant permission. But while deciding such requests, he should take into account the extra burden on the exchequer23. Inspection of the originals of the listed documents is a valuable right of the Charged Officer. During Preliminary Hearing, the I O is required to fix a date for the inspection of the Originals of the listed documents. While fixing

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the date, the provisions of the rules are to be adhered to. The convenience of the parties may be ascertained and accommodated to the extent possible. Inspection of documents is basically the responsibility of the Presenting Officer and the I O after fixing a date for the inspection has to await the outcome of the inspection.24. Another important function during the first hearing is fixing the date for submission by the CO, of the list of additional documents required for the purpose of defence and the defence witnesses. It is desirable that the IO prescribes a format for the submission of the above information. The documents required by the CO for the purpose of his defence may fall under the following categories:a. Government documents, which are required to be obtained by the I O.b. Private documents which may be at the disposal of the CO himself.25. Relevance of both the above mentioned categories of documents are required to be examined by the IO. Even if the documents are of personal nature and are available with the CO himself, the I O should allow the submission of the documents only if he is convinced about their relevance. It is also necessary that before IO takes a final view on the relevance of the defence documents and witness, opportunity is given to the parties to make submission on the issue. Although, the question of relevance falls within the purview of IO, in case the PO has any submission to make in this regard, he must be allowed to do so. Final orders of the I O in this regard (allowing or rejecting the request of the C O for any document or witness) must be a reasoned order.26. On being satisfied about the relevance of the document, the I O should write to the custodian of the document for making the same available for the purpose of Inquiry. Often, the I Os entrust this responsibility to the P Os. This is not proper. The documents relied upon by the C O should not be allowed to be handled by the opposite Party, i.e. PO. This may give room to the allegation by the C O that the P O might have tampered with the documents. It is therefore necessary that I O obtains the documents direct. No doubt, the same will be made available to both the parties and copies may also be provided where necessary and feasible before they are relied upon by the I O.

Activity 5:Can the following persons be allowed to function as Defence Assistant?a) A dismissed Government Servantb) A person who was removed from Government Servantc) A person who was compulsorily retired from Service as ad) Measure of penaltye) A person was compulsorily retired under the provisions of FR f) 56 (j)g) A person who obtained voluntary retirement from Govt.

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27. In the first hearing after the inspection of the original documents, the I O should ascertain from the parties about the outcome of the inspection. He should specifically inquire the C O as to whether the listed documents are admitted or denied by the CO and record the reply. Only those documents, which are admitted by the C O, should be taken on record. The documents taken on record should be marked as S E-1, S E-2, etc. (State Exhibit). While taking the documents on records, the signature of the parties must be obtained on the document itself. As regards the disputed documents, the Presenting Officer is at liberty to introduce the same through the oral witness. Even after admitting a document, the C O is at liberty to challenge its contents. The admission made by the C O is confined only to the genuineness of the document and does not mean that the CO is admitting the veracity of the contents.28. During all the hearings when parties or witnesses appear before the I O, is required to issue certificate of attendance to all those who appear before him. The certificate should indicate the name of the person, the capacity in which he has attended the hearing, and venue, date and duration of the hearing. This will enable the person concerned to claim his TA/DA. 29. Requests for adjournments should be carefully handled. While reasonable opportunity should be provided to the C O, he should not be allowed to take the proceedings for a ride. Any request for adjournment will have to be supported by sufficient proof about the circumstances warranting adjournment. I O is at liberty to demand proof in this regard. Another important fact about the adjournment is that the details of the party who requested for adjournment and the reasons under which it was agreed to or not agreed to must be properly recorded in the Daily Order Sheets.

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Regular hearing Stage

30. During regular hearing stage, the I O will continue to make the Daily Order sheets whenever there is a progress in the case. Similarly, he will be issuing the certificates of attendance to all those who attend the hearing. In addition to the above, the I O is required to take the following actions during the regular hearing stage:a) Summoning witnessesb) Monitoring the conduct of the examination of witnessesc) Recording the statements of the witnessesd) Recording the demeanor of the witnessese) Deciding objections about the questions raised during examination of witnesses.f) Deciding requests for introducing additional witnesses.g) Deciding requests for recalling witnessesh) Asking the C O to state his defence on conclusion of the case of the Disciplinary Authority.i) Putting the mandatory questions on conclusion of the case of the defencej) Checking up from the C O as to whether he got sufficient opportunity for his defence.k) Giving directions for the submission of the written briefs by the Presenting Officer and the C O.31. Summoning the witnesses is the responsibility of the I O. However, in case the party concerned promises to take up this responsibility, I O may leave it to the party, i.e. P O or C O. Sometimes the party may ask for a letter from the I O and may promise to ensure the presence of the witness. In such circumstances, the I O should record in the Daily Order Sheet, that “the P O has promised ensure the attendance of the witnesses and hence no communication is being sent.” Once, the relevance of a Defence Witness has been accepted by the I O, it is the responsibility of the I O, to summon the witnesses. This responsibility cannot be passed on to the C O. A Government servant who has been cited as a witnesses, State Witness or Defence Witness is bound to honour the request of the I O appear before him. If he refuses to attend, the matter may be reported to his controlling officer for initiation of suitable action against him. However, as far as the private witnesses are concerned, there is very little that the I O can do. Only in cases notified under the provisions of the Departmental Inquiries (enforcement of attendance) Act, 1972, he acquires a statutory power to enforce the attendance of the witness.32. The following issues are relevant in the context of summoning of witnesses:Style of communication: I O should consider that the witnesses are doing a service to the organisation by tendering evidence and the communication should accordingly couched in a polite language. Number of witnesses to be summoned on a particular day: it is necessary for the I O to appreciate the valuable time of the witnesses and every effort must be made to ensure that

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the witnesses are not required to wait unnecessarily for their turn. Besides, one witness should not be present when another witness is tendering evidence. Hence, arrangements will have to be made by the I O for the reception and waiting of the witnesses who are waiting for their turn to be examined. It may be very difficult to assess the time likely to be consumed in the examination of an individual witness. However, the time required for examination of witnesses must be estimated as accurately as possible and the appropriate number of witnesses must be summoned for a particular day. It is also desirable indicate the time when a witness is required. Journey time for reaching the place of the Inquiry: In respect of the outstation witnesses, the communication should be sent sufficiently well in advance to enable the witness to plan for the journey for reaching the venue of the inquiry.33. The I O is responsible for smooth conduct of the inquiry. Hence, he should direct the parties to play their respective roles for examination-in-chief, cross examination and re-examination. Besides, the I O should also ensure that the witness is treated with dignity by the parties who examine him. After, the three stages of the examination is over, the I O should thank the witness for having presented himself and ask him to wait (may be in the adjoining room, if a further witness is going to be examined) till the statement is typed and got signed. Another important aspect to be taken care of by the I O at this stage is that in case the C O does not cross examine any State Witnesses, it must be properly recorded in the Daily Order Sheet as “Charged Officer did not cross examine the witness despite the opportunity provided to him”34. The statements made by the witnesses are a vital document for determining whether or not the C O is guilty. Hence utmost care must be shown by the I O in recording the statements accurately. Normally, during examination- in-chief the witness is asked a single question and makes a long deposition. Cross examination and re-examination are usually done in question answer form. The statements as well as questions and answers are to be recorded verbatim. 35. Demeanor of the witness is an important element in assessing the credibility of the witness. Under theCriminal Procedure Code, Magistrates are also required to note the demeanor of the witnesses. Hence, the IO should keep on noting the demeanor of the witness thorough out. This must be referred to at the time of evaluation of evidence.36. Although the provisions of the Indian Evidence Act 1872 are not applicable to the departmental inquiries, the general principles are applicable. Thus, during examination in chief and re-examination only relevant questions should be asked and leading questions should not be asked, except under certain exceptional circumstances. During cross re-examination, the credibility of the witness can be assailed. Although leading questions are permitted during cross examination, certain types of questions are prohibited. I.e. questions, which are totally baseless, indecent and scandalous questions, questions, which are intended to annoy the witness, are all prohibited during cross examination. During examination of witnesses, the contesting parties are likely to raise objections to the questions put by

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the opposite side. The I O should have a clear idea as to what are the permissible questions and what are not. The objections to objections should be disposed off immediately.37. The Presenting Officer is entitled to lead all witnesses listed in Annexure IV to the Charge Sheet. The Charged Officer is required to submit, during the Preliminary Hearing, a list of witnesses required by him. He is entitled to call those witnesses who, in the opinion of the I O are relevant for the case. In case either of the parties required any additional witness a later stage, the I O should consider the in terms of Rule 14(15) of the CCS (CA) Rule 1965. The difference between the witness required for filling up a gap and removing an inherent lacuna is not made clear in the rules. It would be appropriate for the I O to decide the request on the basis of whether it is in the interest of justice. Any request for recalling a witness should also be disposed off in the same manner. There is also an additional dimension in this issue viz. The inconvenience caused to the witness. Suitable decision must be taken in the matter taking the above factors into consideration.38. Once the case of the Disciplinary Authority is over, the IO should ask the C O to state his defence. This is a mandatory provision. Reasonable time may be given to the C O to file his statement in this regard. Copy of the defence taken by the C O should be made available to the P O.

Activity 6:

Can you list some of the items that which constitute demeanor of the witness?

39. On conclusion of the recording of evidence, the I O is expected to ask the C O the mandatory question regarding the circumstances appearing against him. The purpose of this provision is to focus the attention CO on the points which are required to be tackled by him This provision should not be used to grill the C O to make self-incriminating statements. As a matter of fact, there is no need to insist on replies for the mandatory questions. It is sufficient if the I O raises the necessary questions and apprise the C O that “ these are the questions which are required to be answered by you” or “Perhaps the final outcome of this proceedings will, to a great extent, depend upon the answers to these questions”. The fact that these questions were asked and the C O was required to prepare his defence in respect of these points should be recorded in the Daily Order Sheet.40. After asking the mandatory questions, it is desirable that the I O checks up with the C O as to whether he got sufficient opportunity for his defence. If the inquiry was conducted in a fair manner, reply from a reasonable C O should be in the affirmative. If however the reply is in the negative, C O may be asked to substantiate his point. If the C O had any genuine grievance, the defect in the inquiry may be rectified. Alternatively, it may be explained to the C O that the reasonable opportunity was given to him. It is also desirable to inform the details of the circumstances when the C O requests were considered sympathetically and accommodated. The proceedings in this regard must invariably recorded in the Daily Order Sheet.

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41. After the examination of witnesses is over, the parties are required to argue the case for convincing the I O as to why the charge must be held as proved or otherwise. This is done by: Connecting various pieces of evidence to draw the necessary conclusion Submitting reasons as to why the witnesses led by him are to be believed and the witnesses presented by the opposite side must be rejected.42. The parties may orally argue their case or may file written submissions. At the end of the regular hearing, the I O should direct the parties to make arguments or make written submissions. Generally they prefer to make written submissions. I O should direct the P O to file two his written brief within a reasonable time. C O is given time to file his written submission after perusal of the P O’s written brief. I O may either receive the written brief of the P O and forward it to C O or may direct the P O to serve a copy of his brief to the C O and file another copy along with the acknowledgement of the C O. In the later event, the I O should satisfy himself that the PO’s brief has been delivered to the C O.Post Hearing Stage

43. The only action of the I O during this stage is the preparation and submission of his report to the Disciplinary Authority. Analysis of Evidence, and the Preparation of I O’s report are dealt with separately.

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CHAPTER- 13DISCIPLINARY PROCEEDINGS FOR MAJOR PENALTY

Introduction

Rule 14 of the CCS(CCA) Rules 1965 states that no order imposing any major penalty specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry is held as per the procedure laid down in Rule 14.The above provisions is in accordance with Article 311 which enjoins the no person can be dismissed, removed or reduced in rank except after an inquiry.After service of the charge sheet and consideration of the representation received, if any, from the Government servant, the disciplinary authority comes to a conclusion to hold an inquiry to inquire into the charges, it has option to either himself into or appoint an authority to inquire into the truth of such of the articles of charge as are not admitted by the Government servant.Although it is open for the disciplinary authority to himself inquire into the article of charge yet the disciplinary authority should refrain from inquiring into charge(s) and should appoint an authority as inquiry officer. A presenting officers is also simultaneously, appointed to present the case on behalf of the disciplinary authority. The disciplinary authority should forward all the necessary documents to the inquiry officer and the presenting officer.

PRELIMINARY HEARING

1. Proceedings before the Inquiry Officer are generally divided into two stages, namely Preliminary Hearing and Regular Hearing. During Preliminary Hearing the following actions take place: preliminary hearings are the hearings held on the first day of the oral inquiry.

a) On the day of preliminary hearing the Charged Officer is asked whether he has received the charge Sheet, understood its contents and whether he admits the charges.b) On the day of preliminary hearing the Inquiry Officer (I.O) will asks the C.O (a) whether he pleads guilty to any of the articles of charge included in the charge sheet, and if not, (b) whether he has any defence to make.It is mandatory for the I.O to ask the above question to the CO despite the fact the C.O has already denied the charges in his written statement of defence in response to the charge sheet.If the C.O., pleads guilty unequivocally to all or any of the charges, the I.O. will record the plea, sign himself and obtain the signature of the C.O. thereon. The I.O will return the finding of guilt in respect of the charges

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admitted unconditionally by the C.O and will proceed with the inquiry only in respect of those charges which are not admitted by the C.O.If the C.O refuse to plead or omits to plead or pleads not guilty or accepts charges conditionally, the I.O. will record orders on the

a) Inspection of the listed documentsb) Submission of list of defence witnesses indicating relevancy of each

witness.c) Submission of the list of additional documents (defence documents)

which the C.O. wishes to have access to or wishes to produce on his behalf indicating their full particulars and relevancy.

If the C.O. applies orally or in writing for the supply of earlier statements of listed witnesses, the I.O. shall furnish him with such statements as early as possible and in any case three days before the commencement of examination of witnesses on behalf of the disciplinary authority.The I.O. shall postpone the hearing after recording the above orders. No evidence (both oral and documentary) should be recorded on the day of preliminary hearing.2. During this phase the Presenting Officer has to carry out the following functions:a) Collection of original documents: Documents listed in Annexure III of the charge sheet are held by the Disciplinary Authority. The same will have to be obtained by the Presenting Officer and kept in safe custody till it is got inspected by the Charged Officer and finally presented to the Inquiry Officer. Depending upon the nature of the documents and convenience of the parties, these documents may be taken over by the Presenting Officer at an appropriate time. At any rate, the documents must be with the Presenting Officer before the inspection of the same by the Charged Officer. It is advisable for the Presenting Officer to critically examine the originals of the listed documents so that the disputes which the Charged Officer is likely to raise may be anticipated and proper remedial action can be planned.b) Finalising the schedule for the Inspection of the listed documents: It is during the Preliminary Hearing, that a decision is taken for the Inspection of the Documents. As per Rule 14(II)(i), inspection of the documents is required to be done “within 5 days of the order or within such further time not exceeding five days as the Inquiring authority may allow. The Presenting Officer will have to indicate to the Inquiry Officer, his preference for the venue, date and time of the inspection of the listed documents. Depending upon the mutual convenience of the parties, the Inquiry Officer will fix the schedule for the inspection of the listed documents.c) Conducting the inspection of the listed documents: Normally the Inquiry Officer leaves the inspection of listed documents to the Presenting Officer and the Charged Officer. It is for the PresentingOfficer to get the Inspection of listed documents completed. Presenting officer has to exercise great care and caution during the inspection of original documents by the Charged Officer. There have been occasions

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wherein the originals were destroyed during the inspection. At the same time, Inspection of originals is a valuable right of the Charged Officer and the same cannot be curtailed by unwarranted and unreasonable restrictions. The following suggestions are worth considering at the time of inspection of documents:

i. The Charged Officer may not be allowed to hold a pen while carrying out the inspection of the originals. A small dot or bar or a comma or a colon may change the contents of the originals enormously. As Charged Officer is entitled to take notes at the time of inspection, he may be advised to take notes with a pencil.

ii. Preferably give one document at a time. There may be a number of documents which will be inspected by the Charged Officer. Simultaneously handing over all the documents to the Charged Officer will have many disadvantages. It is appropriate to give the documents one after another. Once a document has been inspected, the same must be taken back and then another document may be handed over for inspection. As the Charged Officer has been supplied with the copies of the documents, he may not require to compare the contents of the originals. However, if the Charged Officer requires to simultaneously peruse two documents, the same may be allowed ensuring the safety of the documents.

iii. Keep the document equidistant between the Charged Officer and the Presenting Officer. This will enable the Presenting Officer to have physical control of the original document if the charged officer tries to destroy.

iv. Never leave the documents in the custody of the Charged Officer. It is advisable that the Presenting Officer is present Officer is always present in the room throughout the inspection. In case there is an extreme emergency, the Presenting Officer may temporarily suspend the inspection, keep the documents under the lock and key and request the Charged Officer to wait for a few minutes. Alternatively, depending upon the nature of the document being inspected, some reliable person may be asked to take charge of the situation temporarily.

v. The Charged Officer and the Defence Assistant must be treated with utmost courtesy, when they visit the Presenting Officer for the inspection of the documents. In case there is any difference of opinion about the rights of the Charged Officer or the limitations which the Presenting Officer may impose, the matter may be referred to the Inquiry Officer rather than entering into an unpleasant debate.

d. Additional documents required by the Charged Officer: Charged Officer is entitled to ask for the documents which may be of help in his defence. In fact the Inquiry Officer is required to ask for the details of the documents and witnesses required for the purpose of defence. Although it is for the Inquiry Officer to decide on the relevance of the documents and witnesses cited by the Charged Officer, Presenting Officer need not be a mute spectator at this stage. Being a party to the proceedings, he has a right

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to express his opinion. Besides, he also has a role to assist the Inquiry Officer by way of bringing to the notice of the later the rule position and the custodian of the document which has been cited by the Charged Officer.e. Collection of the documents cited by the Charged Officer: Often, the Inquiry Officers request the Presenting Officer to collect the Documents required by the Charged Officer for the purpose of his defence. This practice is likely to vitiate the inquiry and must be strictly avoided. The documents required by the Charged Officer must reach the Inquiry Officer direct from the custodian of the documents. Collection of the documents by the Presenting Officer may result in allegation being leveled by the Charge Officer that the documents were tampered while under the custody of the Presenting Officer. If the Inquiry Officer requests the Presenting Officer to collect these documents, the latter should politely apprise the former of the problems involved. However there can be no objection to the Presenting Officer transiting these documents in sealed covers from the custodian of the documents to the Inquiry Officer.f. Handing over the listed documents to the Inquiry Officer after the inspection: After the Inspection of the documents by the Charged Officer, in the next hearing, the Presenting Officer is required to hand over the listed documents to the Inquiry Officer, who will be taking over the documents and marking them as SE-1, SE-2, etc. At this stage, the Presenting Officer should pay special attention to these aspects: The facts regarding the admission and dispute over the listed documents should be correctly brought out in the Daily Order Sheet. The documents taken over by the Inquiry Officer are to be signed by the Presenting Officer and the Charged Officer.Presenting Officer should ensure that the details of the documents taken over are correctly reflected in the daily Order Sheet. This alone will serve as a receipt for the documents handed over by the Presenting Officer.Obtaining the copies of the documents required by the Charged Officer: As the Charged Officer is entitled for the copies of the listed documents, the Presenting Officer is also entitled for the copies of the documents relied upon by the Charged Officer. He is also entitled to peruse the originals of these documents. These documents will be collected by the Inquiry Officer and will not be under the custody of the Charged Officer. Hence, the Presenting Officer will have to request the Inquiry Officer for the copies of these documents and the perusal of the originals.3. During the Preliminary Hearing, the major responsibility of the Presenting Officer is with reference to the documents. Firstly, he has to ensure the safety of the listed documents till they are handed over to the Inquiry Officer. Secondly, he has to carefully go through the documents cited by the Charged Officer and try to anticipate as to how the Charged Officer will draw support from the same. As the Charged Officer will submit his written brief only after the submission of brief by the Presenting Officer, there is no way for the Presenting Officer to understand as to how the Charged Officer relies upon the documents for the purpose of his defence. Presenting Officer can only anticipate this and accordingly do the needful in his written brief.

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On receipt of the documents the inquiry officer should carefully go through the same and send a notice to the charged officer as well as presenting officer, fixing a date for preliminary hearing within 10 days of the receipt of documents indicating the time and place for preliminary hearing. While giving notice the Inquiry Officer will direct the charged officer (C.O) to name the defence assistant and also to submit an undertaking from the defence assistant that he is willing to assist the C.O. In case of an employee of Kendriya Vidyalaya Sangathan, the defence assistant can only be either a serving or a retired employee of the KVS.Inspection of Additional Documents.The I.O will allow such of the additional documents as are considered relevant by him. The inspection of these documents will be given to the C.O. However, the custodian of the documents may deny the production of all or any of such documents, if the production is against public interest or the security of the state. This privilege of non-production of documents can be exercised by the custodian of the documents and not by the I.O. If the access to the documents is denied on the ground of non-relevancy, the same should be communicated to the C.O. giving reasons for such denial.

Regular HearingOn completion of the preliminaries i.e. the inspection of listed documents and additional documents. The I.O. will fix date for Regular Hearing. He will issue notices to the P.O, C.O and defence assistant, if any nominated, indicating the date, place and time for regular hearing. Summons will also be sent to the departmental as well as defence witnesses directing them to appear before him on the date, place and time mentioned in the summons. Non-compliance of summons by a Government servant can be treated as a ‘conduct unbecoming of a Government servant;.On the day of regular hearing the P.O. will be called upon to produce evidence on behalf of the disciplinary authority. After taking the listed documents on record, the P.O. will be called upon to produce his witnesses one after the other. Each witness produced by the P.O will be examined In-chief by him. The witnesses will then be cross-examined by the C.O and re-examined by the P.O on the issues raised during cross examination. The statements of the witnesses will be recorded and signed by the P.O., C.O, I.O and the witnesses.It should be noted that leading questions cannot be asked in examination-in-Chief. However, the same are allowed during cross examination.On closure of the case by the P.O. the I.O. will call upon the C.O to state his defence either orally or in writing as he may prefer. If the defence is made orally it will be recorded verbatim and the C.O. will be required to sign the same. At this state neither P.O nor I.O can put questions or seek elucidation from the C.O. on his statement of defence.After the statement of defence by the C.O. the evidence will be produced on behalf of the Charged Officer. The documentary and oral evidence produced

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by the C.O. will be recorded in the same manner as was done in case of the P.O. The witnesses produced on behalf of the C.O. will be examined –in-chief by him and will be cross-examined by the P.O. The C.O examine himself as his own witnesses if he so prefers. In case the C.O. refuses to submit his statement of defence the I.O should proceed with recording of evidence on behalf of C.O.The I.O. may, after the C.O. closes his case, ask questions on the circumstances appearing against him.. The asking of questions is essential if the C.O. has not examined himself as his own witness.The I.O. may permit the P.O and C.O to argue their respective cases before him. The P.O will argue his case first followed by the C.O. The I.O may also permit filing of written briefs, if so requested. If written briefs are allowed by the I.O., the P.O. will submit the written briefs first to the I.O. with a copy to the C.O. The C.O. will, thereafter submit his written brief to the I.O. only with no copy to the P.O.After considering the written briefs and other evidence on record the I.O will prepare a detailed report on each article of charge and will send the whole record, including documentary evidence, statements of the witnesses, Daily order sheet etc. and will state whether each article of charge is proved /disproved/ not proved. He should not recommend any quantum of punishment to the disciplinary authority.

What is a Leading Question? Why Leading Questions should not beasked in Direct Examination of Witnesses?

As per Sec.141 of The Indian Evidence Act, 1872,"Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question". Such question is normally not objected in examination in chief as to matters, which are introductory or undisputed, which have already been sufficiently proved. Leading questions can be freely asked in cross-examination. The Inquiry Authority can ask leading questions. Searching cross-examination by Inquiry Authority by means of leading questions cannot be objected.

There are no specific provisions in the DA regulations relating to leading questions. The Indian Evidenced Act is not applicable in the conduct of Departmental Inquiries. Though the technical legality of the Act is not applicable, the spirit of the Act definitely is applicable. The inquiry officer if he permits the PO to put leading questions should extend the same facility to the CO also. However in PNB so many departmental inquiries are conducted and the bank cannot claim totally that we do not know any law. It is better that leading questions are not put in direct examination of witness by both parties.

The following example of an examination totally through leading questions will illustrate how this can be misused:

PO- (prosecuting officer): Do you agree that the accused stayed in a hotel room on such and day and spent the night there.

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Yes or No?Witness: Yes I agree.

PO - And I say that a woman stayed with him in the room. Say yes or no?Witness - Yes. A woman stayed with him

PO - And I say the woman is not his wife. Say yes or no?Witness: No the woman is not his wife

PO - I also say it is not his mother, sister or daughter.Witness - No it is not his mother, sister or daughter.

PO - That is all. No more questions.

The accused was shocked to hear this testimony. He engaged no advocate to represent him. As he is shocked he lost composure to cross-examine the witness. When the witness was about to leave the witness stand, the trial judge out of curiosity asked him one question.

Judge - Who then is the woman and what is her likely age?

To this question the answer came cool from the witness- The woman is his grandmother and her age is 75.

How to Examine & Cross-Examine Witnesses

The Indian Evidence Act is not strictly applicable to departmental inquiries, but its provisions have significant relevance, as examination/cross examination of witnesses in substance is materially for the same purpose both in a law court and in a departmental inquiry. It is therefore pertinent to study the provisions of the Act, with reference to examination witness.

Provisions Covering Examination of Witnesses In The Court(Sections 137 to 140 of Indian Evidence Act)

Examination-in-chief is the examination of a witness by the party who calls him.

cross-examination is the examination of the witness by the adverse party.

Re-examination is the examination of the witness subsequent to the cross-examination by the party who called him.

The evidence of witnesses shall be taken in open Court in the presence and under the personal direction and superintendence of the Judge.The examination of a witness by the party who calls him shall be called his Examination-in-Chief. It must relate to relevant facts. No leading questions can be asked. The object of this examination is to get from the witness all material facts within his knowledge relating to the party's case. It is the duty of the counsel to bring out clearly and in proper chronological order every relevant fact in support of his client's case to which the witness can depose.

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The statements made in examination-in-chief lose much credibility and weight unless they are put into the crucible of cross-examination and emerge unscathed from the rest.

The examination of a witness by the adverse party shall be called his cross-examination. The purpose of the cross-examination is to test the veracity of the witness. No evidence affecting a party is admissible against that party unless the latter has had an opportunity of testing its truthfulness by cross-examination

[Maganlal Vs. King Emperor AIR 1946 Nagpur 126].

The object of cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness, to detect and expose discrepancies, or to elicit suppressed facts, which will support the case of the cross-examining party. Cross-examination, though a very powerful, is also a very dangerous engine. It is a double-edged weapon, and as often wounds him who wields it, as him at whom it is aimed. To wield it to advantage requires a great practice and natural tact. It should be kept in mind that the essence of cross-examination is, that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause, or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. But if the adverse party has had liberty to cross-examine and has not chosen to exercise it, the case is then the same in effect as if he had cross-examined.

When witness not to be Cross Examined: -1. A witness summoned merely to produce a document; 2. A witness sworn by mistake 3. A witness whose examination has been stopped by the judge before

any material question has been put is not liable to cross-examination;

4. A witness giving replies in answer to questions by the Court can only be cross-examined as to credit;

5. A witness, who has given no evidence in chief, may not be cross-examined as to credit;

6. The Court may disallow cross-examination used simply to oppress and not for the purpose of justice;

7. Witnesses to character, though liable to be, are in fact rarely cross-examined.

Witnesses shall be first Examined-in-Chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined.

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The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified on his Examination-in-Chief.The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matters, by permission of the Court, introduced in re-examination, the adverse party may further cross-examination upon that matter. The right to re-examination a witness arises only after the conclusion of cross-examination and it shall be directed to the explanation of any part of his evidence given during cross-examination, which is capable of being construed unfavorably to his own side. The object is to give an opportunity to reconcile the discrepancies, if any, between the statements in examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination.The examination of witnesses is viva voce. It is always in the form of questions and answers. Where a question is objected to and yet allowed by the Court to be put, the question and it answers are taken down verbatim. At the end of the deposition, it is read out to the witness and signed by the Presiding Officer.The procedure followed in departmental inquiries is almost identical. Here in the place of the judge, the Inquiry officer moderates on the examination/cross-examination of witness by both parties. It is also relevant to study what CVC has provided by way of guidelines, as it is an expert body in respect of conducting departmental inquiries.

Cross-Examination of Witnesses - Guidelines of CVC from its ManualIn departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public servant are not expected to act like judges or lawyers. The right of the Government servant to cross-examine a witness who has given evidence against him in a departmental proceeding is, however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311 (2).The scope or mode of cross-examination in relation to the departmental enquiries have not been clearly set out anywhere. But there is no other variety of cross-examination except that envisaged under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries should, as far as possible, conform to the accepted principles of cross-examination under the Evidence Act.Cross-examination of a witness is the most efficacious method of discovering the truth and exposing false-hood. During the examination-in-chief the witness may say things favourable to the party on whose behalf he tenders evidence and may deliberately conceal facts which may constitute part of the opponent's case. The art of cross-examination lies in interrogating witness in a manner which would bring out the concealed truth.Usually considerable latitude is allowed in cross-examination.

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1. It is not limited to matters upon which the witness has already been examined-in-chief, but may extend to the whole case.

2. The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner in putting questions to the witness. However, a witness summoned merely to produce a document or a witness whose examination has been stopped by the Inquiry Officer before any material question has been put is not liable to cross-examination

3. It is also not permissible to put a question on the assumption that a fact was already proved.

4. A question about any matter which the witness had no opportunity to know or on which he is not competent to speak may be disallowed.

5. The Inquiry Officer may also disallow question if the cross-examination is of inordinate length or oppressive or if a question is irrelevant.

6. It is the duty of the Inquiry Officer to see that the witness understands the question properly before giving an answer and of protecting him against any unfair treatment.

Re-examination of witnessAfter cross-examination of witness by or on behalf of the Government servant, the Presenting Officer will be entitled to re-examine the witness on any points on which he has been cross-examined but not on any new matter without the leave of the Inquiring Authority. If the Presenting Officer has been allowed to re-examine a witness on any new matter not already covered by the earlier examiner/cross-examination, cross-examination on such new matter covered by the re-examination, may be allowed.

Examination of a witness by the Inquiry Officer After the examination, cross-examination and re-examination of a witness, the Inquiry Officer may put such questions to the witness, as he may think fit. Such a witness may be cross-examined by or on behalf of the Government servant with the leave of the Inquiry Officer on matters covered by the questions put by the Inquiry Officer.

Record of evidenceA typist will be deputed by the Inquiry Officer to type the depositions of the witnesses to the dictation of the Inquiry Officer. The depositions of each witness will be taken down on a separate sheet of paper at the head of which will be entered the number of the case, the name of the witness and sufficient information as to his age, parentage and calling, etc., to identify him.The depositions will generally be recorded as narration but on certain points it may be necessary to record the questions and answers in verbatim.As evidence of each witness is completed, the Inquiry Officer will read the depositions, as typed, to the witness in the presence of the Government servant and/or legal practitioner or the Government servant assisting the delinquent officer in his defence. Verbal mistakes in the typed depositions, if

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any, will be corrected in their presence. However, if the witness denies the correctness of any part of the record, the Inquiry Officer may, instead of correcting the evidence, record the objection of the witness. The Inquiry Officer will record and sign the following certificate at the end of the depositions of each witness:- "Read over the witness in the presence of the charged officer and admitted correct/objection of witness recorded."The witness will be asked to sign every page of the deposition. The charged officer, when he examines himself as the defence witness, should also be required to sign his depositions. If a witness refuses to sign the deposition, the Inquiry Officer will record this fact and append his signature. The documents exhibited and the depositions of witness will be kept in separate folders.If a witness deposes in a language other than English but the depositions are recorded in English, a translation in the language in which the witness deposed should be read to the witness by the Inquiry Officer. The Inquiry Officer will also record a certificate that the depositions were translated and explained to the witness in the language in which the witness deposed.Copies of the depositions will be made available at the close of the inquiry each day to the Presenting Officer as well as to the delinquent officer.

Recorded Statement of witnesses - Accepting Directlyas Evidence- Guidelines of CVC

The question whether statements made by the witnesses during the preliminary inquiry/investigation can be straightway taken on record as evidence in examination-in-chief at oral inquiries has been examined by the Department of Personnel & AR. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accordance with the principles of natural justice to take on record the statements made by the witnesses during preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness concerned on its being read out to him. By adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. Instead of recording the evidence of the prosecution witness, de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance (at least 3 days) of the date on which it is to come up for inquiry. As regards the statement recorded by the Investigating officers of the CBI, which are not signed, the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded thereunder that it had been read out to the person concerned and has been accepted by him.The above are from the guidelines of CVC contained in their Manual. This is supplemented by additional information on the subject that is pertinent

Perverse Evidence of Interested Witness

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A witness is to speak the truth. This is binding on him as per law, as per conduct rules and on principles of decent morality of a good citizen. But what if a particular witness, develops specific interest for or against the charged officer and give perverse evidence? Perverse evidence refers to statements made by a witness, which are not true, but false. Additionally while making such statements the witness is clearly aware that what he speaks is not true. Civil/Criminal courts term it as 'perjury', if proved subsequently and inflict 'punishment' on the witness. Such evidence affects at the root of the sanctity of departmental inquiries and results in miscarriage of justice. But how to deal with this situation, as the witness is adequately coached and well prepared to meet intense cross-examination.

The following steps may be adhered to in such a situation:

1. Start with intense cross-examination of the witness asking for supplementary details of even minute character to test his demeanor

2. Try to bring out through cross-examination, if possible, that, he is an interested witness, to discredit veracity of his testimony.

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3. Even if these are not effective, suggest the correct facts to the witness, and ask for his affirmation or negation - (e.g.) "I say these developments took place and not the one you have stated. Now what have you to say to this". Even if the witness sticks to his original statements, it is disputed on record that the veracity of the witness is the subject matter of consideration on account of this step. It also amount to the particular statement/testimony of the witness has been contested by the other party and has not been accepted by default or failure of cross-examination.

4. Try to spot suitable witness for your side (Management or defence), who will explain the correct facts in his testimony. This will counteract to the testimony of the perverse witness

5. At any point if it is established that at least a part of the testimony of the perverse witness as false, propose to the IO to recall that witness for further cross-examination on these points. Obviously this is equally the duty for the Inquiry Officer to do even at his own initiative.

6. If the perverse witness is on behalf of the management, the charged officer should normally avail his privilege to appear as his own witness and testify the correct facts in his evidence. The PO can cross examine him. No amount of cross-examination can alter the truth or the stand of a genuine witness.

The moral is that a statement made by the other party at any stage of the inquiry, if it is not acceptable to you, must be contested, even if you are not able to immediately disprove the same categorically on record. Otherwise it will amount on account of your default that you have impliedly accepted the same and it will weigh against you in the inquiry. This is the Law of Default and it applies to both the PO and the CO.

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CHAPTER- 14DILATORY TACTICS EMPLOYED BY THE SUSPECTED PUBLIC

SERVANT- HOW TO MEET THEM DILATORY TACTICS EMPLOYED BY THE SUSPECTED PUBLIC SERVANT

ARE AS UNDER:

SUBMISSION OR WRITTEN STATEMENT OF DEFENCEThe accused Government servants generally demand inspection of listed documents and some additional documents to enable them to submit the written statement of defence called for under Rule 14 (4) of the CCS (CCA) Rules, 1965. This is done with the sole purpose of delaying the proceedings. This can be avoided by furnishing the copies of the listed documents and statements of listed witnesses to the charged Government servant along with the charge sheet. In case the documents are bulky and copies cannot be provided, the Government servant should be requested to inspect the same within 15 days and this fact should be mentioned in the forwarding memorandum.

PLEA OF BIAS AGAINST THE INQUIRY OFFICERWhenever a representation is made against the Inquiry Officer on grounds of bias, the proceedings are required to be stopped by the Inquiry officer till the representation is decided by the revisionary authority. The revisionary authority in such cases is the appellate authority of the Government servant concerned. The plea of bias should be raised as early as possible. The plea of bias raised against the Inquiry Officer after the conclusion of the inquiry has no significance and should be brushed aside as an afterthought. In order to avoid delay on this account, the representation should be promptly forwarded to the appropriate revisionary authority for a quick decision. Of late a new kind of dilatory tactic has come to notice in common proceedings. One of the employees involved in common proceedings submits a representation on grounds of bias against the Inquiry Officer. When this is decided, the second employee involved moves an application of bias against the Inquiry Officer and so on with the result that the inquiry is stalled for a long time. This can be effectively countered if the revisionary authority calls for such applications, if any, from other accused Government servants involved in the common proceedings before deciding the first application. This procedure, if adopted, would settle the question once for all and the inquiry can proceed without further delay.

INSPECTION OF DOCUMENTS BY THE GOVERNMENT SERVANT Generally, delay is caused by clever Government servants by not giving full particulars of additional documents required by them for their defence. This entails unnecessary correspondence between the Inquiry Officer and the accused employee causing avoidable loss of valuable time of the Inquiry Officer. This can be avoided if the Inquiry

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Officer settles this aspect during Preliminary Hearing itself by making it clear to the accused employee to indicate full particulars of the documents. The Inquiry Officer should, at the time of accepting the application for additional documents insist that the Government servant should furnish full particulars of the documents along with the name and address of the custodian and their relevancy failing which the request should not be entertained. The Inquiry Officer should also adhere to the time limits indicated in Rule 14 (11) of the CCS (CCA) Rules, 1965.

APPOINTMENT OF DEFENCE ASSISTANT BY THE EMPLOYEE It is common knowledge that some of the accused Government servants furnish the particulars of their defence assistant without consulting them. When the Inquiry Officer writes to such defence assistants, they show their inability to defend the accused employee. On receipts of the refusal, the accused employee nominates another Government servant to assist him and so on. This type of dilatory tactic can be effectively met if the Inquiry Officer, at the time of accepting the particulars of the proposed defence assistant, insists that the accused employee should produce a certificate from his defence assistant regarding his willingness to assist the accused employee and that he does not have more than two cases pending with him including the present one, if he is a serving Government servant. In the case of a retired Government servant, restriction of five cases in which he is assisting, is applicable, but his consent is necessary and must be insisted upon. This would help in saving much time and the inquiry can be expedited without violating the provisions of the rules in this regard (Rule 14 (8) of the CCS (CCA) Rules, 1965 refers).

DELAYS DURING REGULAR HEARINGS It should be borne in mind by the Inquiry Officers that Regular Hearing is to be held on day to day basis. Adjournments should not be allowed on flimsy grounds. While making use of discretionary powers vested in them, they should combine reasonableness with firmness. Requests made by the delinquent official during the course of the Regular Hearing should be decided quickly. In short, the Inquiry Officer should always remain in command of the proceedings. It is worthwhile to note that no appeals lies against the orders of the Inquiry Officer in view of the provisions of Rule 22 of the CCS (CCA) Rules, 1965. This necessitates that the Inquiry Officer should never decide matters put before him in an arbitrary manner. But once a decision has been taken, after due consideration of all aspects, it should be adhered to and no further time should be allowed to be wasted by re-opening the issue.

STAY ORDERS BY THE COURTS A wrong impression exists that the departmental inquiry should be stayed the moment the accused employee has either threatened to go

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to a court of law or has actually gone to a court. It is clarified that the departmental inquiry should not be stayed for the simple reason that the accused employee has threatened or gone to a court or even when a rule nisi has been issued by the court. The inquiry should not be stayed till definite stay orders passed by a competent court of law are received. This would save much of the valuable time now being wasted by staying the inquiry.

SUBMISSION OF MEDICAL CERTIFICATE BY DELINQUENT EMPLOYEE It is very often noticed that the charged Government servant resort to submission of medical certificate from any medical practitioner as and when the inquiry is fixed. In case the certificate is not from the authorized medical attendant, the Government servant should be informed in clear terms that a medical certificate from any medical practitioner other than the authorized medical attendant shall not be acceptable and the inquiry will proceed ex-parte. Where the medical certificate is received from the authorized medical attendant, the inquiry may be postponed but the next date should be fixed immediately after the expiry of the leave on medical grounds. The notice fixing the fresh dates of inquiry should be sent to the delinquent employee at the earliest. If the medical certificate is extended, new dates should be fixed after the expiry of the extended date of validity of the medical certificate. This will go a long way in meeting with this kind of dilatory tactic adopted by the Government servants.

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CHAPTER- 15WRITTEN BRIEF OF THE PRESENTING OFFICER

INTRODUCTION

1. Submission of the written brief is the culmination of the activities of the Presenting Officer. During the hearing, the parties to the proceedings present documentary evidence and lead oral evidence. Evidence presented during the hearings serve the purpose of presenting facts. The facts must lead to some inference. The link between the bare facts and the inference is required to be established through logic. To enable the Inquiry Officer to draw inference, the parties are given two options viz. present arguments or submit written briefs in support of their case . It must be appreciated that the submission of the written briefs is an alternative to the argument of the case. Lawyers generally argue the cases on conclusion of the examination of witnesses in the judicial proceedings. In most of the disciplinary cases, the summing up of the case is done through submission of written briefs. All the parties to the proceedings prefer the submission of written briefs because of the following reasons:

a) If the case is argued orally, the Inquiry Officer will have to take down notes of the argument and the same will again have to be reduced to writing. Submission of written briefs saves this extra labour for the Inquiry Officer.

b) Arguing a case is a more difficult task than leisurely writing a brief. Argument calls for certain additional skill i e. Presentation skills, verbal fluency, etc.

c) Officials are mostly familiar with the written submission of their proposals and would feel at home while preparing written briefs.

d) While arguing a case one may miss a point. But written briefs can always be rechecked and shown to an expert before submission and omissions can be avoided.

2. The advantages of the submission of the written brief should be fully availed by the Presenting Officer.It is desirable for the Presenting Officer to file written submissions rather than choosing to argue the case. If felt necessary, the written brief may be shown to the Preliminary Investigation Officer or the Vigilance Officer subject to their willingness/availability and the importance of the case.

2. While preparing the written brief the Presenting Officer should pay attention to the following aspects:

a) Form : Although no form has been prescribed for the written brief of the Presenting Officer it is desirable that the same conforms to a form which will facilitate easy presentation and effective communication of the ideasb) Facts: The brief should contain all the relevant facts which help in establishing the charge.

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c) Logic: Bare facts may not be able to lead to any conclusion. The facts are to be linked to the charge through logic.d) Language: Although, ideas constitute the backbone of the brief, yet the language must be faultless, powerful, impressive and easy to understand.FORM

4. As mentioned earlier, no form has been prescribed for the brief of the Presenting Officer. It is recommended that the following form may be adopted:a) Introduction: It is desirable that the brief starts with an introduction wherein the details of the case may be given. The introduction may run something like this:“ Charges were framed by xxxxx (Disciplinary Authority) against Shri. ABC (name and designation), under Rule 14 of the CCS (CCA) Rules 1965 vide OM NO. xxxxx dated xxxxx. On the denial of the charges by Shri ABC, it was considered necessary by the Disciplinary Authority to hold an inquiry into the matter and accordingly Shri. Mmmmmm (name and designation) was appointed as the Inquiry Officer and the undersigned viz. mmmmmm (name and designation) was appointed as the Presenting Officer. Inquiry was held during xxxxx (date of commencement of the inquiry ) and yyyyyyy ( date conclusion of the inquiry). The Inquiry Officer ordered on yyyyyy that the written brief of the Presenting Officer be submitted by zzzzzz (date) and accordingly this written brief is being submitted.”b) Charge: The second item in the Written brief must be the details of the charges. The para may readc) “ The articles of charge framed against Shri. ABC are: mmmmmmm,mmm”d) Proceedings during the Preliminary Hearing: Details such as the denial of the charges by theCharged Officer during the Preliminary Hearing, The details of the state documents admitted and disputed by the Charged Officer may also be indicated here.e) Opportunities given to the Charged Officer: Providing reasonable opportunity to the Charged Officer is an essential requirement of the disciplinary proceedings. Besides, the Charged Officer is likely to mention in his written brief that he was not provided with reasonable opportunity. Hence, the Presenting Officer should commence his contentions with a submission about the opportunities given to the Charged Officer. Presenting Officer should highlight the opportunity given to the Charged Officer for presenting additional documents/witnesses. Besides, permission granted to the Charged Officer for engagement of Defence Assistant, any lenience shown to the Charged Officer, any facility availed by him, etc. may be specifically brought out here. It is desirable that the Presenting Officer anticipates the arguments likely to be taken by the Charged Officer and

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provide answers to the same, to the extent possible. If any document which was totally irrelevant was requested by the Charged Officer and the same was denied by the Inquiry Officer, one can be more than sure that the Charged Officer will be mentioning the same in his written brief and trying to argue that he was denied reasonable opportunities. The Presenting Officer should anticipate such argument and highlight in his brief that the Charged Officer was provided with reasonable opportunity.

f) Case of the Disciplinary Authority: This paragraph will predominantly rely on the statement of imputations of the misconduct. Here the Presenting Officer may indicate the facts on the basis of which the charge is required to be proved.

g) Evidence on behalf of the Disciplinary Authority: After narrating the case of the Disciplinary Authority, the Presenting Officer may give the details of the evidence actually led on behalf of theDisciplinary Authority vis-a vis the evidence mentioned in the Charge Sheet (Annexures III and IV).

Any deviation, such as not presenting any witness mentioned in the charged sheet or presenting additional witnesses with the permission of the Inquiry may also be indicated.

h) Evidence on behalf of the Charged Officer: The details of the oral and documentary evidence presented by the Charged Officer may be listed here.

i) Evaluation of evidence: This the most crucial portion of the written brief. In this portion, the Presenting Officer should highlight the facts established by each piece of state evidence. There are two ways of achieving this, viz.i. The Presenting Officer may take up the facts to be established for proving the charge one by one, and indicate the evidence which establishes the fact.ii. Alternatively, the Presenting Officer may take up each item of evidence presented on behalf of the Disciplinary Authority and indicate what points have been established by each piece of evidence. j. Analysis of the case of the Charged Officer: This is another area where the Presenting Officer will have to do considerable brain teasing. The case of the Charged Officer can be inferred only from his submissions. But some Charged Officers do not present any written submissions till the conclusion of the hearing. Even the written Statement of Defence in response to the Charge Sheet will contain a one line denial such as “ I deny the charges”. As a result, the Presenting Officer may not have any document indicating the case of the Charged Officer. Under such circumstances, the Presenting Officer will have to construct the case of the Charged Officer from the evidence produced by him. The Presenting Officer should try to undermine the value of the defence witnesses citing acceptable reasons. In this paragraph, the Presenting Officer’s argument should run on the following lines:i. that the case of the Charged Officer is not logically possible.ii. that the Charged Officer has failed to establish what he tried to do.

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iii. that the witnesses led by the Charged officer are not reliable because of contradictions with the established facts.iv. That the defence witnesses were interested parties and hence their evidence cannot be relied upon.v. Inconsistency and absence of corroboration in the statements of the Defence Witnesses.k. Conclusion: Finally, the brief of the Presenting Officer should contain a specific assertion to the effect that on the basis of the evidence presented during the Inquiry, Charges should be held as proved. At this stage, the Presenting Officer should not bother about adequacy of evidence. If there is some evidence pointing towards the guilt of the Charged Officer, the charges should be held proved on the basis of preponderance of probability. If the evidence produced in the inquiry leads to proof beyond doubt, the Presenting Officer should specifically mention the same in his brief.FACTS

5. Cases are required to be proved on the basis of facts. Hence facts constitute an essential ingredient of the brief of the Presenting Officer. Before the commencement of the hearing, the Presenting Officer should identify the facts necessary for establishing the charge. He should also identify the evidence through which these facts will be established. In the written brief, the Presenting Officer should indicate the facts proved by the evidence of the disciplinary Authority.LOGIC

6. What fact is required to be proved depends upon the circumstances of the case. That crow is black is fact. This fact may not appear to prove anything. This fact may be used for establishing that a person has defect in vision. If a person a describes a crow as a blue colored bird, our logic informs us that the person should have some defect in his vision. The Presenting Officer should have a sound logic for drawing conclusions from the fact is presented in a case. Consider the following facts of a disciplinary case:

a) A person was charge sheeted for having preferred a false LTC claim. In those years LTC was permissible even for travelling in private bus. The charge sheet was issued nearly three years after the journey, on the basis of a report received from the State Transport Authority.

b) The case of the Disciplinary Authority was that the Charged Officer had submitted an LTC claim of having visited Kanya Kumari along with family in a Super Deluxe private bus. But the State Transport Authority had intimated that the name of the person was not in the list of passengers available in their office.

c) In the inquiry, the Charged Officer produced a list wherein his name also figured. According to the Charged Officer, the original passenger list was for two pages and he had both the pages with him when he traveled three years ago. By the time the disciplinary authority wrote to the State Transport Authority, there years had passed from the date of journey and unfortunately the second page of the list was lost or torn off or detached from the file of the State Transport Authority.

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d) An officer of the State Transport Authority was produced as a state witness. During cross examination, he admitted that the possibility of the second page getting detached from the file is not ruled out. Besides, he also stated that the initials on both the pages of the list shown by the Charged Officer and the initials on the single page of list held in the office of the State Transport Authority are of the same person.

7. On the basis of the above facts, one is most likely to conclude that there is some mix up of papers in the office of the State Transport Authority. One is likely to conclude that the charges are not proved. Yet, by the application of logic it was held in this case that the charges were proved and penalty was imposed on the Charged Officer. The logic was that if we take into account the number of passengers in both the pages, the total number works out to 75 and it was improbable that 75 passengers could be accommodated in a Super Deluxe bus for a journey from Delhi to Kanyakumari. Isolated facts cannot establish anything. Facts linked with logic alone can establish. At times logic may establish certain things which are not visible from the reading of plain facts. The Presenting Officer, in his written brief should be able to provide logical reasoning linking the fact and the conclusion which he wants the Inquiry Officer to arrive at.LANGUAGE

8. The basic purpose of preparing the written brief is presenting the details and convincing the Inquiry Officer about the reasons for concluding that the charges are proved. The facts to be presented in the brief may be many. The analysis and presentation of these facts calls for communication skill of a fairly high order. The brief is required to be read and understood by the Inquiry Officer without any clarification from the Presenting Officer. (Obviously, the Inquiry Officer will be reading the brief at his convenience and the Presenting Officer is not expected to be present for offering any explanation).9. Besides, verbal presentation has certain advantages such as body language, voice modulation, volume, etc. If the case is verbally argued, the Presenting Officer may be able to emphasis his points by raising his voice or slowing the pace of delivery. On the other hand, the Presenting Officer is arguing his case through the written brief and hence his brief must be able to speak loud and clear. Therefore, special efforts must be made by the Presenting Officer to prepare his written brief in a lucid style, endowed with a logical sequence. The Presenting Officer should therefore adopt an effective style of writing. It is desirable to type the vital points in bold letters or otherwise highlight the same.CONCLUSION

10. As already seen, the submission of brief is the last activity of the Presenting Officer. Charged Officer is entitled to prepare his brief on perusal of the brief of the Presenting Officer. Inquiry Officers follow two methods for obtaining the briefs from the parties:

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a) The Inquiry Officer may direct the Presenting Officer to submit two copies of the brief so that he(Inquiry Officer) may forward a copy to the Charged Officer.b) Alternatively, The Inquiry Officer is also at liberty to direct the Presenting Officer to forward a copy of the written brief to the Charged Officer and then send another copy to the Inquiry Officer.11. In the later event, care must be taken by the Presenting Officer to obtain the acknowledgment of the Charged Officer for the delivery of the brief. A copy of proof of delivery of the brief to the Charged Officer must be sent to the Inquiry Officer along with the copy of the brief meant for the Inquiry Officer. In either case, the time limit prescribed by the Inquiry Officer for submission of the brief must be strictly adhered to. If, on account of any unavoidable reason, the time limit could not be complied with, InquiryOfficer must be informed of the reason and extension obtained with the knowledge of the Charged Officer.

CHAPTER-16APPRECIATION OF EVIDENCE

Introduction

1. In the gamut of the multifarious activities in disciplinary proceedings, there are two distinct phases which are more difficult than others. They are, firstly, arriving at a conclusion as to whether, or not the Charged Officer is guilty; secondly deciding the quantum of penalty. While the latter of the above two falls exclusively within the jurisdiction of the Disciplinary Authority, the former is the responsibility of the Inquiry Officer as well as the Disciplinary Authority. In arriving at the conclusion as to whether the Charged Officer is guilty or not, the Disciplinary Authority is aided by the report of the Inquiry Officer, which is not binding on him. The Disciplinary Authority, for reasons to be recorded, is at liberty to disagree with the findings of the Inquiry Officer. Although the rules do not specifically state so, the Disciplinary Authority is required to go through the entire records of the case, apply its mind and decide afresh as to whether the Charged Officer is guilty or not. Thus the Disciplinary Authority is required to re-appreciate

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evidence. The Appellate Authority may also be required to re-appreciate evidence depending upon the contents of the appeal. Thus, appreciation of evidence is a process in which various functionaries in the disciplinary proceedings are intimately involved. This process involves the examination of the various documents forming part of the records of the proceedings and statements made by the witnesses in the course of the proceedings and arriving at a conclusion as to whether, the Charged Officer is guilty.2. Decision making is a part of the assignment of most of the middle and high level officials. However, the process of drawing conclusion from the records of disciplinary proceedings is complex and cannot be considered identical to the administrative decision making. Following are the distinguishing features of the decision making process in a quasi-judicial proceedings as compared to that in a purely administrative case:

a) In a case of purely administrative nature, the facts are generally presented by persons who do not have any interest in the final outcome of the case. Hence, by and large, the facts are objective. At any rate, there is not much scope for biased views or consciously concocted versions. On the contrary, the parties to disciplinary proceedings are keen about the final outcome and are expected to establish facts to suit their case.

b) Conclusions in the disciplinary proceedings are required to be based entirely on evidence. There is no such compulsion in administrative decision making. In administrative decision making, the authority can depend upon his vision, imagination, etc

c) Decision making authority in a disciplinary case is prohibited from relying upon his personal knowledge. On the contrary, an authority importing his knowledge for decision making in a purely administrative case is considered to add value to the decision making process.

d) In a disciplinary case, information collected behind the back of the Charged Officer cannot be relied upon. There is no such constraint in administrative decision making.

e) Disciplinary proceedings are covered by statutory provisions. Hence the decision making process is as important as the decision itself. Although the provisions of the Indian Evidence Act 1872, are not applicable for the disciplinary proceedings, the general principles of the Act are applicable. Due attention must therefore be paid to issues such as onus of proof, standard of proof, etc.

f) Disciplinary Proceedings are quasi-judicial in nature The rule of Audi alteram partem (Hear the other side), which is the first Principles of Natural Justice apply to the disciplinary proceedings. Although, the Principles of Natural Justice apply to the purely administrative actions also, the possibility of hearing the party is ruled out in most of the decision making, and hence the audi alteram partem rule is not applicable.

The applicability of this rule brings along with it several constraints in the conduct ofthe proceedings as well as in drawing conclusions.

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Types of evidence

3. In disciplinary proceedings, two kinds of evidence are produced viz. documentary and oral. Documentary evidence is presented by the parties and is taken on record after inspection by the opposite party. The documents are required to be read and understood. Oral evidence is tendered in person before the Inquiry Officer and the witness can be asked to clarify his statements. This facility is not available with the documents. Besides, a witness is subjected to cross examination by the opposite party and he may make contradictory statements during different stages of his depositions. On the other hand, a document does not change its contents. It is static. Accordingly, different procedures are to be followed and different techniques are to be adopted for evaluating each of these two types of evidence.THE SCENARIO

4. Life would have been much easier, if all the parties involved in the Disciplinary Proceedings speak truth, the whole truth and nothing but the truth. However, the hard reality is that we generally come across conflicting versions from the contesting parties to the proceedings. The conflict is not confined only to the interpretation of the orders, instructions, rules etc. It extends even to the factual aspects of the case. Very often, the versions of the parties are at variance even in the basic facts of the case. The variance is so marked that the versions cannot be simultaneously true. Obviously, only a part of the voluminous facts produced in the Inquiry can be true. It is in this context that the Inquiry Officer, Disciplinary Authority, etc. are charged with the onerous task of ascertaining the truth out of the available information. As stated by a famous judge, this process is, to a large extent, ‘personal, individual and depends upon an infinite variety of circumstances; any attempt to regulate or control it by a fixed rule is impracticable, worse than useless, inconsistent and repugnant to a nature of trial.’ Notwithstanding the difficulties involved, there are certain guidelines for appreciation of evidence produced in the proceedings and arriving at the truth. Before seeing these guidelines, let us have a look at the scenario so that we can appreciate the motive of the parties and their game plans.5. The CHARGE is based on some facts. Assume for a while that a charge has been leveled against an official that he has disobeyed orders issued by the superior authority. This charge is based on the following facts:a) That an order was issued whereby the Charged Officer was required to perform some act; andb) That the above order was issued by a superior officer who had the authority to issue such orders; andc) That the Charged Officer was informed of the orders; andd) That the Charged Officer did not carry out the orders, ore) That the Charged Officer refused to carry out the order, orf) That the Charged Officer did something contrary to the order.

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6. Establishment of these facts is the pre-requisite for proving the charge. The PresentingOfficer is required to establish the facts at (a) to (c) above and any one of the facts among the rest i.e. (d) to (f). If any one of these four facts is not proved, it may not be possible to hold that the charge has been proved. Presenting Officer will lead evidence for establishing these facts. For establishing the charge, the Presenting officer may lead the following evidence:

a) A copy of the order which prescribes that the Charged Officer will perform an act.

b) The point at para 4(b) above viz. that the signatory is the superior officer of the Charged Officer, may not be questioned by the Charged Officer. However, if the same is disputed by the Charged Officer, some evidence to this effect such as organisational chart or some Office Order which empowers the above officer to assign work to the Charged Officer may have to be provided.

c) Acknowledgement to the effect that the Charged Officer was made aware of the contents of the order referred to at (a) above. Alternatively, this may be established through collateral evidence such as a representation from the Charged Officer referring to the above instruction.

d) Suppose that the competent authority had issued orders to the effect that the Charged Officer (as well as other officials) will review the files in the section and submit, by a prescribed date, the list of files to be shifted to the Record Room. The fact that the Charged Officer had failed to carry out the orders may be established through any of the following means:

(i) A report of the immediate controlling officer of the Charged Officer wherein he would have mentioned the progress achieved in the weeding out drive and indicated the nil contribution of the Charged Officer.

(ii) A report of the physical inspection carried out after the prescribed date, which may indicate that a large number of files which should have been sent to the Record Room were found in the custody of the Charged Officer.

(iii) The records relating to the receipt of files in the Record Room which will indicate that the Charged Officer had not deposited any file in the Record Room by the prescribed date.

e) The refusal of the Charged Officer to carry out the orders of the competent authority may be written or oral. In case the Charged Officer had communicated in writing, his unwillingness to do the task, the communication itself will be a piece of documentary evidence to establish the fact at para4 (e) above. In such a case one may not have to wait for the due date for the completion of the task. As soon as the Charged Officer communicates in writing, his disobedience of the order, disciplinary action may be initiated against him. If the Charged Officer had orally communicated his disobedience for the instruction, then someone to whom the disobedience was communicated may be produced as a witness in the case.

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7. Against the above attempt of the Presenting Officer, the defence of the Charged Officer may take any of the following forms:(a) Questioning the maintainability of the proceedings – the Charged Officer may question the power of the Disciplinary Authority to issue the Charge Sheet and conducting the proceedings. Although this form of defence is rarely adopted by the Charged Officers, the possibility of a Charge Officer taking this line of defence is not ruled out. This contention of the Charged Officer is not required to be answered in the Inquiry proceedings. Hence this aspect is not covered in the present handout.(b) That the prosecution has failed to establish the charge – A Charged Officer may win the proceedings even by keeping quiet. For, it is for the prosecution to establish the charge. Even during the ex-parte proceedings, a Charged Officer may be exonerated, if the Presenting Officer fails to produce sufficient evidence. Obviously, in a case wherein the Charged Officer participates, he may contend that the PresentingOfficer has failed to establish the charges. This may be done in the following ways:

(i) That the evidence led by the Presenting Officer is not reliable/ acceptable. For example, the Charged Officer may contend that the instructions were not circulated to him at all. Such contentions may be raised in the written brief of the Charged Officer. If the evidence led on behalf of the Disciplinary Authority does not contain any proof to the effect that the instructions in question were communicated to the Charged Officer, this contention of the charged officer will have to be accorded serious consideration.(ii) That the evidence does not establish the facts, which the Presenting Officer wants to establish. For example, the Charged Officer may contend that the documentary evidence produced by the Presenting Officer for establishing that the charged officer has refused to carry out the task assigned to him does not amount to a refusal. He may contend that in his communication, he had only presented the difficulties anticipated by him in performing the task and he was duty bound to submit his views to his superior officer. Such a contention will also be raised in the written brief of the Charged Officer. This line of defence will be mostly relied upon by the Charged Officer in cases involving oral evidence. During cross-examination of the State Witnesses, the Charged Officer may try to elicit contradictory statements from the witness. Then he may contend in the written brief that the witness in question is not reliable.(iii) The Charged Officer may present a defence on his behalf. For example, in case of misbehaviour in the office, the Charged Officer may produce evidence to the effect that he was not present in the scene at all.

8. Normally in the Inquiry proceedings, the Charged Officer may adopt a combination of the methods mentioned in para (b) above. As a result of the endeavour of the parties, at the end of the Inquiry, there will be enough conflicting and contradictory evidence calling for evaluation. The evidence

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adduced during the Inquiry may generally fall in the following three categories:(a) Wholly reliable(b) Wholly unreliable(c) Partly reliable and partly unreliable

9. Obviously, the process of ascertaining whether a piece of evidence is reliable or unreliable or a combination of the two is a painful one. As mentioned by a famous Vice Chancellor over a hundred years ago “Belief is rarely the consequence of a strictly logical process. It is either partially or entirely the outgrowth of education, bias, affection, fear, or some other influencing passion. We believe what we wish to believe, and that we are in a mood for accepting as true. The same evidence which to one may be convincing to another may seem absurd.”10. It is in this context the Inquiry Officer, the Disciplinary Authority, etc. are required to make up their mind as to which of the statements made by different witnesses are reliable and which are not reliable.GENERAL PRINCIPLES

11. Regard must be paid to the following general principles for the purpose of evaluation of evidence.(a) Provisions of the Indian Evidence Act are not applicable but the general Principles are applicable: Indian Evidence Act 1872 is a comprehensive statute, which lays down various rules on the subject. When a fact is said to be proved, what a relevant fact is, what are admissible evidence, what kind of questions can be asked during the examination of witnesses, etc. are some of the multifarious factors covered in the above Act. The provisions of the act, as such are not applicable for the departmental inquiries. However, the general principles such as the order in which the witnesses are examined, disallowing leading questions during examination in chief, putting the burden of proof on a party who avers to a fact, etc are some of the general principles which are followed during departmental proceedings.(b) Evidence is to be weighed and not counted. A fact is not to be held as acceptable simply because it has been stated by more witnesses. A case may be decided on the basis of the statement of a single witness, provided he is reliable. In this connection, it is noticeable that Sec 134 of the Indian Evidence Act 1872, specifically states that Number of witnesses- No particular number of witnesses shall in any case be required for the proof of any fact.(c) Findings must be based on evidence, not conjectures and surmises: While the testimony of a witness is it self, insufficient to establish or justify an inference of a particular fact, it would be a gross irregularity to take the decisions based on suspicion. As stated by a judge, “The sea of suspicion has no shore and the court that embarks upon it is without rudder and compass.”

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(d) Status of the witness is immaterial for assessing credibility: No doubt that the statements made by the various witnesses in an Inquiry Proceedings are to evaluated with the result that the evidence of some may be rejected in whole or in part and that of some others may be accepted. But the acceptability or otherwise of a witness does not depend upon the official status of the witness because truth has no connection with status. (e) No evidence behind the back of the Charged Officer: The case is required to be decided on the basis of the evidence produced during the proceedings. Material collected behind the back of the charged officer cannot be used against him. Besides, the personal knowledge of the decision making officer should not be imported for deciding the case.(f) Burden of proof lies with the Disciplinary Authority: The general rule is that the burden of proof in a proceedings lies on the party who would fail if no evidence at all were given on either side. Thus burden of proof in the Inquiry Proceedings lies with the Disciplinary Authority. However, the burden of proof as to any particular a fact lies on that person who wishes the court to believe in its existence. Thus, if in the proceedings, the Charged Officer wants the Inquiry Officer to believe that on a particular day he was not present in the office, it is for the Charged Officer to provide evidence to this effect and prove the same.12. The recording of evidence and its evaluation is not the unique feature of Inquiry Proceedings. Evidence is recorded and analyzed by Courts also. In fact a greater volume of evidence is recorded in the courts. However, there are some distinguishing features of the evaluation of evidence in Inquiry Proceedings. The same are as under:

(a)Standard of proof: The standard of proof required in a criminal trial is “proof beyond reasonable doubt”. In the domestic inquiry proof beyond reasonable doubt is not required It is sufficient to establish the charges on the basis of the principles of preponderance of probability.

(b)Hearsay evidence: A witness is required to state what has been seen or heard by him. If a witness narrates what he has gathered from others, such a witness is known as hearsay witness. Normally hearsay evidence is not admitted in judicial proceedings. However the Supreme Court has held that in Inquiry Proceedings, even hearsay evidence is permissible.

(c) (c) Circumstantial evidence: Circumstantial evidence is permissible even in judicial proceedings. However the same is subject to certain conditions. In Inquiry proceedings, a more liberal approach is permissible towards circumstantial evidence.

DOCUMENTARY EVIDENCE

13. Documents on the basis of which the charge is proposed to be established are listed in Annexure III of the Charge Sheet. These are known as listed documents. Copies of these documents are normally given to the Charged Officer along with the Charge Sheet. The Charged Officer is given an opportunity to inspect the originals of these documents. In most of the

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departments, the copies of the listed documents are generally provided along with the Charge Sheet. Copies of ledgers etc. would not have been supplied to the Charged Officer. Thus, during inspection of documents, the Charged Officer may not have to ascertain the contents of the documents, except in respect of those documents, copies of which were not supplied to him. Hence during the inspection, the charge officer may take notes of the contents of documents whose copies were not supplied to him. In addition to this he can also satisfy himself about the conformity of originals with the copies supplied him. He can also examine whether the same has been tampered with. After the inspection of the documents, the Inquiry Officer takes the same on record. At this stage, the Charged Officer is required to state whether he admits or disputes the documents. The Inquiry Officer does not take disputed documents on record. They are required to be introduced through oral evidence. Admission of a document does not mean that the Charged officer is in agreement with the contents of the documents. For example, in a disciplinary proceedings relating to lack of devotion to duty, one of the listed documents may be a memo served on the Charged Officer highlighting his short comings in work. When the Charged Officer admits this document, he only admits that such a memo was in fact served on him. He may still argue that the contents of the memo are incorrect. Of course, he will have to lead evidence in support of this contention.14. Besides, the Charged Officer is given an opportunity to give the list of documents, which are required for the purpose of his defence. The Inquiry Officer is required to examine the relevance of these documents and procure such documents, which in his opinion are relevant for the purpose of defence. Such documents are known as additional documents. The Presenting Officer is at liberty to inspect these documents and obtain the copies of the same. Obviously, the Presenting officer is also at liberty to contest the content of the documents produced on behalf of the Charged Officer. The contentions of the contesting parties about the contents of the documents produced by of evidence will be contained in their written briefs. It is for the Inquiry Officer to interpret the document and determine as to whether the same establishes the facts, which the parties desire to establish. Interpretation of a document means two things: firstly, the meaning of the words and secondly the legal effect which is to be given to them.

15. As the documentary evidence is also not beyond dispute, considerable effort is required on the part of the Inquiry Officer and the Disciplinary Authority in evaluating them. The following guidelines may be of help in evaluating the documentary evidence:

(a) It is a general principle of evaluation of evidence that documentary evidence carries more weight than oral evidence. This is because of the fact that the contents of the documents are fixed and they do not change their colour to suit the occasion. However, before relying on the document, its authenticity must be ensured.

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(b) Even if the opposite party does not dispute the authenticity of a document, the authority evaluating evidence must satisfy itself about the same.(d)Written brief of the contesting parties may contain their interpretations

of the content of the documents and the same must be taken into account while evaluating the document. While it may not be possible for the authority to agree with he interpretation given by a party, the same must be gone through and the rival contentions evaluated before the Inquiry Officer ascribes a meaning to the content of a document.

16. There are some well recognised rules for the interpretation of documents for ascertaining the true meaning of the words used and to give effect to the true intention of the author of the same. They are:

(a)The presumption is that ordinary words are used to convey their ordinary meaning. Hence, documents, which are plain and unambiguous, must be interpreted according to their plain and unambiguous language.

(b)Every document must be construed as a whole without isolating the words and passages from their context. An attempt must be made to reconcile apparent inconsistencies and avoid an interpretation, which will render the document meaningless.

(c) Where the words of the document are clear, there is no need to gather the intention of the author from any extraneous source. Where, however, there is a dispute about the meaning of a word, the subsequent conduct of the parties can throw light on the meaning of the word.

(d)It would be wrong to given different meanings to the same expression in different parts of a document unless it is evident from the context that a different meaning should be put upon it.

(e)An authority, which is interpreting a document, cannot read words into a document, which can provide a rational meaning, even without such import of words.

APPRECIATION OF ORAL EVIDENCE

17. Neither the Indian Evidence nor any other Act lays down any provision regarding which witness is to be believed and which one should not be believed. While the above Act contains several provisions indicating what are the types of evidence which are admissible, it is silent as to which evidence is to be believed. It is an admitted fact that ‘the weight of evidence cannot be regulated by precise rules as the admissibility may be; it depends upon rules of commonsense and the weight of the aggregate of many such pieces taken together is very much greater than the sum of the weight of each such piece of evidence taken separately’. In fact the Draft Indian Evidence Bill contained a provision “Whenever any evidence is said to be admissible, it does not mean that it is to be regarded as conclusive, but only that the weight, if any, which the deciding authority may consider due, shall be allowed to it.” (Emphasis supplied). Although this provision does not figure in the Indian Evidence Act as it stands now, the principle is worth remembering.

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Thus, it has been left to the deciding authority to decide as to whether a witness should be believed or not. The following are some of the questions which often arise in the minds of the Inquiry Officers while evaluating evidence:(a) What weight is to be given for the statement of a witness?(b) Whether it must be believed in full or in part?(c) If it is to be believed in part, which part is to be believed?(d) Whether it must be rejected in toto?(e) What is the criterion for deciding the credibility?

18. Apart from the complexities in determining the weight to be attached to any individual witness, there are some general principles relating to appreciation of oral evidence. The following general principles may be borne in mind before assessing the credibility of individual witnesses:(a) Evidence must be taken as a whole for evaluation. As the various pieces of evidence in any proceedings are with reference to the facts relating to the issues in a particular case, there is an element of commonness among them. Evaluating evidence piece by piece may not lead anyone anywhere. The evidence produced in a case must be considered in its entirety and evaluated.(b) Status of the witness is immaterial for assessing credibility: No doubt that the statements made by the various witnesses in an Inquiry Proceedings are to evaluated. This may lead to the rejection, in whole or in part, of the statements of some of the witness, and the acceptance of the statements of some others. But the acceptability or otherwise of a witness does not depend upon the official status of the witness.(c) Affirmative statements carry more weight than denials: If one witness deposes to the effect that something occurred and another witness states that he was also present in the place at that time and no such thing occurred, other things being equal, greater weight must be attached to the statement of the one who affirms the occurrence of the event.d) Number of witnesses deposing a fact is not relevant: We have already seen that evidence must be weighed and not counted. Thus, the number of witnesses deposing to a fact does not add credibility to same. Decision making authority is at liberty to believe one witness against many deposing to the contrary, provided the former is above reproach and suspicion.(e) Even un-impeached witness can be rejected: During the proceedings, each party will try to assail the credibility of the witness led by the opposite party. During cross-examination, the effort is normally to make the Inquiry Officer believe that the witness is unreliable. Even if a witness has not been established as unreliable, it is not necessary for the deciding authority to believe the witness. Thus, the credibility of a witness does not depend solely upon the contradictions, inconsistencies brought out during

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cross examination or the depositions made by other witnesses. A famous author once remarked, “Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself, such as, the common experience and observation of mankind can approve as probable under the circumstances.” If the statement of a witness is contrary to the laws of nature or the ordinary human experience, the decision making authority is well within his right to reject, even though the statement has not been controverted. Eg. If a person asserts that he was reading in moonlight, the Inquiry Authority may reject this even if the opposing party did not make any effort to assail the statement.(f) Evidence may be partly accepted: It is not uncommon for the parties to establish truth with the help of false evidence. Hence, if a part of the statement of witness has been established, as false, it is not necessary to reject the entire evidence on this score. It is an admitted fact, that witnesses need not be wholly reliable. If a witnesscan not be believed in certain aspects of his depositions, it is no reason to reject his entire evidence.(g) Rejection of the evidence of one, by itself, cannot constitute proof of the evidence of another. During the proceedings, two parties would lead evidence to establish conflicting facts. If the witness led by one of them has been found to be lacking in credibility, the deciding authority may reject the same. However, the rejection of the evidence of one cannot be the basis for accepting the evidence of the opposite party. The evidence of the opposite party may be acceptable only if it passes the test of credibility.(h) More weight is given to the actions than to words. Other things being equal, evidence relating what happened, carries more weight than evidence relating to what was told. Obviously, words are more prone to be misunderstood and misrepresented.

19. The more difficult aspect of the process of the evaluation of evidence comprises determining the reliability of the witnesses. The weight to be attached to a witness is the cumulative outcome of a number of complex factors. It may not be possible to draw a comprehensive list of the factors, which determine the credibility of a witness. Besides, it may not be possible to lay down the inter-se importance of these factors by assigning a numerical index. It is for the decision making authority to determine as to which of these factors are more important than the others. The factors mentioned below cannot conclusively establish as to whether the witness must be believed or disbelieved. The list of factors given below only indicates the types of questions which the Inquiry Officer should ask at the time of evaluation of evidence:(a) Integrity of the witness: If a witness has been established as a person of bad character, the statements made by him are taken with a pinch of salt (or may be a ton of salt!)

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(b) Competence: Whether a witness is competent to assert what he is asserting is another question, which has to be considered by the Inquiry Officer. The basic rule is that even the most honest person can understand only what he is capable of understanding and hence cannot vouch for what he is incapable of perceiving. Competence as such depends upon many factors such as intelligence, familiarity with the language, knowledge, etc. Even a witness who is sincere and honest may mislead the Inquiry Officer with wrong information, which he himself has perceived wrongly. The intellectual capacity of a witness is a strong factor in determining his credibility.(c) Interest in the case: The amount of interest a witness has in the outcome of the case is a significant factor in determining the weight to be attached to the case. It may be easily admitted that, often, the colleagues, friends and relatives of a prson are better placed to depose about the incidents in which the above person is accused or a victim. Hence, they will be natural witnesses in such cases. It would not be fair on the part of the Inquiry Officer to reject the evidence tendered by relatives, friends and colleagues. At the same time, one should not be unmindful of the fact that such a person may have an interest in the outcome of the proceedings. Any witness who is interested in the outcome of a case is likely to distort truth to suit the purpose.(d) Demeanour: Demeanour i.e. the behavour and appearance of the witness, is a very important clue to the truth of the deposition. While an exhaustive list of the components of demeanour may not be possible, the following items may be of help in assessing the demeanour of the witness:i) hesitationii) doubtsiii) pace of depositioniv) variations in tonev) confidencevi) calmnessvii) postureviii) eye contact or the lack of itix) facial expression ie bright or pale, etc.An Inquiry Officer is required to take notes of the demeanour of the witness as and when the latter makes his statement. This note may be consulted while evaluating evidence. In this context, it is worth remembering that the Criminal Procedure Code specifically provides that the Magistrate shall make a note of the demeanour of the witnesses(e) Consistency: The amount of consistency in the statements of a person is directly proportional to the credibility of his evidence. While examining consistency, due regard must be paid to the fact that human beings are prone to forget facts with passage of time. Similarly, it is also likely that the quantum of information furnished may vary with circumstances. A person may furnish a sketchy report of what has happened when he would have

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been pre-occupied with what help must be done to the victim. Later on he may come out with a more detailed narration of the same incident. Hence allowances must be made for the vagaries of human memory and observation. Separable exaggerations and super additions, which do not go into the root of the matter may have to be ignored. Minor discrepancies add to the truthfulness of the statements. However the discrepancies in the material part of the evidence cannot be easily passed over.(f) Conformity of the testimony with experience: The deciding authority may view that a statement of a witness to be unacceptable on the basis of the former’s knowledge, observation and experience of the laws of nature, human conduct, etc.(g) Conformity with the statements of other witness. The truth of a person’s statement can be ascertained by comparing it with the statements of other witness.20. Despite the above, the task of evaluation of evidence continues to be a highly subjective area leaving much to the experience and attitude towards life.21. A few dicta evolved by eminent scholars may be of help in determining the credibility of the witnessIn any judicial as well as quasi-judicial proceedings, the parties to the proceedings endeavour to establish the facts through evidence. Often, the evidence led in the proceedings are conflicting and confusing. The decision making authority is required to decide the case on the basis of evidence.The following portion (sub paras f and g) may better be incorporated in the handout on the drafting of Charge Sheet:

f) It is also possible that the instructions required the Charged Officer to review all the files which were closed before 3 years and segregate those files which to be completedg) The instructions issued to employees do not always require them to do some act. There are instructions, which require the employees not to do some acts. Under such circumstances, the violation of the instruction may be the commission of an act rather than an omission of an act. Charged Officer would not have communicated his unwillingness to carry out the orders but would have done something in violation of the orders. For example if there were some orders requiring the employees not to leave the office till clearance is given by the Parliament Section, the departure before the prescribed time will constitute the disobedience of the instructions. The commission of this misconduct can be proved by oral evidence who had seen the Charged Officer leaving early or documentary evidence in the form of attendance taken before all the officials were allowed to leave.(a) That the action taken by the Charged Officer is otherwise legal.(d) Will try to raise doubts on the acceptability of these evidences. For example in respect of the documentary evidence produced by the Presenting

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Officer for establishing that the Charged Officer has communicated in writing that he would not be carrying out the review of the pending records, the Charged Officer may be contending that the note submitted by him does not amount to disobedience. He may argue that he had only expressed the difficulties in the task from the organisational point of view and had not refused to perform the work. Parties to the proceedings endeavour to establish facts for and against the charge. While the Presenting Officer will try to lead evidence to establish facts which are in support of the facts, the Charged Officer will try to marshal evidence For this purpose they lead evidence which are conflicting in nature. The major task of the decision making authority, be it Inquiry Officer, Disciplinary Authority or the Appellate Authority, is to decide the facts which have been established in the inquiry and draw conclusion as to whether the charge has been proved or not proved or disproved.

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CHAPTER- 17EVALUATION OF EVIDENCE

1. The primary functions of an inquiring authority are to record the evidence, to evaluate the evidence and to give his findings on each Article of charge. Having recorded the evidence, the Inquiring Authority is required to evaluate the same so as to decide whether a reasonable conclusion can be drawn on the basis of preponderance of probability, regarding the guilt or otherwise of the Charged Officer.GENERAL PRINCIPLES OF EVALUATING EVIDENCE

2. The evidence adduced during the inquiry is of two types namely oral and documentary. Oral evidence includes all statements which the Inquiring Authority permits to be made before it by witnesses, in relation to matters of fact under inquiry. The documentary evidence includes all documents produced for inspection and admitted in the inquiry. Before the Inquiring Authority embarks upon the assessment of the evidence, it is essential for him to understand certain general principles which he would be required to apply to this task.(i) The first principle is that the standard of proof in a departmental inquiry is preponderance of probability and not proof beyond reasonable doubt as required in Criminal trials. This principle has been enunciated by the Supreme Court in the case of Union of India Vs SardarBahadur (SLR-1972-SC.355) in the following words:-"A disciplinary proceeding is not a Criminal case and the standard of proof is preponderance of probability and not proof beyond reasonable doubt."(ii) The second principle is that the burden of proof rests on the disciplinary authority, i.e. it would be the responsibility of the Presenting Officer to establish the charge first and then only the Charged Officer would be required to controvert the same. It is not for the Charged Officer to prove his innocence or absolve himself from the charges. While evaluating evidence, it is the duty of the Inquiry Officer to see that the charges have been established by the Presenting Officer on behalf of the Disciplinary Authority first by adducing evidence before him during the course of Inquiry. If, the P.O. fails to bring home the charges, no duty is cast on the Charged Officer to prove his innocence.(iii) A further requirement is that the conclusion must rest on the evidence and not on matters outside the record. And, when it is said that the conclusion must rest on the evidence, it goes without saying that it must not be based on a misreading of the evidence.(iv) While drawing inferences and conclusion, the Inquiry Officer is required to assess the evidence which has been produced before him during the enquiry. He is not permitted to refer to the materials which have not been produced during the enquiry and for which the Government servant had no opportunity to examine and to rebut explain the same. It has also been help that Inquiry Officer cannot be a witness against the suspected public servant

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and the Inquiry Officer must in particular, avoid, giving any weight, however minute, to personal knowledge of any matter, against the Charged Officer.v) Suspicion, however, strong, has no evidentiary value whatsoever. Conjectures or surmises cannot take the value whatsoever. Conjectures or surmises cannot take the place of proof or evidence. In the case of Union of India Vs. H.R. Goel (AIR 1964-SC 364) where the allegations against the officer was that he (Shri H.C. Goel) on meeting Director (Administration), CPWD, at his residence apologized for not having brought 'Rasgullas' for the children and also took out his wallet and showed a folded paper which looked like a hundred rupee note, it was held that the evidence showed mere suspicion which could not be the basis for proving the charges framed against him.It will thus be seen that the Inquiry Officer cannot rely on his personal knowledge of facts, and only the evidence produced during the inquiry is to be considered and the Inquiry Officer should not refer to the materials which have not been produced during the inquiry and for which the Government servant did not have the opportunity to examine, refute or explain the same.Moreover, no conclusion should be arrived at arbitrarily, without evidence or on misreading of the evidence. These requirements are basic and cannot be whittled down in a departmental inquiry. Similarly, mere suspicion cannot take the place of evidence or proof. (A.R. Srinivasan's case S.C.66).3. All these principles are to be applied by the Inquiry Officer to report to the disciplinary authority whether in the context of the evidence adduced before him, the Articles of Charge have been proved, ,disproved or not proved. It is, therefore, essential to explain these terms. The Indian Evidence Act defines them as:-PROVED: A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case to act upon the supposition that it exists.DISPROVED: A fact is said to be disproved when, after considering the matters before it, the Court either believes that it does not exist, or considers its nonexistence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.NOT-PROVED: A fact is said not to be proved when it is neither proved nor disproved.4.0 MATERIAL EVIDENCE

4.1 In order that the articles of charge may be held as proved or otherwise there is always material evidence which may be oral or documentary, the production or non-production of which will affect the outcome of the enquiry. If such material evidence is not produced, during the inquiry, the article of charge cannot be held as proved.

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4.2 Material Evidence differs from case to case and it is not possible to give an exhaustive list. However, the following few examples may explain the importance of material evidence:-(i) Where the allegation is that the employee was found to be sleeping during duty hours, the person who actually saw him sleeping and reported the matter, is a material evidence.ii) An eye witness to an incident is always a material witness, but a person reaching the place of occurrence after the event is not a material witness. The reason is that the latter gathers his information from other persons and hence his evidence is merely hearsay evidence.iii) In the case of insubordination, the officer with whom the employees misbehaved is a material witness (Ranchorbhai's case `56).4.3 In the evaluation of evidence, the Inquiry Officer should give more weightage to the material evidence adduced during the enquiry. The material witness or documents, where the allegations are based on documents, reveal the story. Hence, scanning of material evidence with care will help in the correct appreciation of the circumstances of the case.5. HEARSAY EVIDENCE5.1 The Supreme Court has held in the case of State of Haryana Vs Rattan Singh AIR 1977 (SC1512) that hearsay evidence is admissible in departmental inquiries. It has observed that there is no allergy to hearsay evidence provided it has reasonable nexus and credibility, but departmental authorities and administrative tribunals should not swallow what is, strictly speaking, not relevant under the Indian Evidence Act.5.2 In this case, none of the passengers, who traveled in the bus without ticket but after making payment, were examined. Only the checking Inspector was examined, who had stated that the passengers refused to give written statements. In the case of Rattan Singh, the Supreme Court took the view that the sufficiency of evidence in departmental enquiry is beyond the scrutiny of the Courts. The Court further observed that the evidence of the checking Inspector provided some evidence relevant to the charge. It was not necessary to insist the passengers who traveled in the bus, on that day should be chased and brought before the departmental inquiry before a valid finding can be recorded. The Court, therefore, upheld the removal from service of Shri Rattan Singh.

6. STATUS OF THE WITNESS

While evaluating evidence of the various witnesses produced on behalf of the disciplinary authority and the charged officer, the golden rule is that "ALL WITNESSES ARE EQUAL" irrespective of their rank or status in the Govt. A higher credence value cannot be attached to a piece of evidence for the only reason that the witness holds a status higher than the one deposing to the contrary. However, the evidence of an independent witness is to be given higher weightage than an interested witness.

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7. VALUE OF EVIDENCE WHICH CANNOT BE SUBJECTED TO CROSS EXAMINATION

The right of cross examination is a valuable right given to the charged officer in departmental inquiries and denial of the same vitiates the enquiry. Hence, any evidence which cannot be subjected to cross examination should not be accepted. For example statements of witnesses recorded during preliminary investigation who are not produced during the inquiry are not to be relied upon. Similar is the fate of the affidavits. The person swearing to the affidavit may be called for cross examination and the value to be attached to an affidavit should be decided in each case on the result of the cross examination etc.8. VALUE OF TAPE RECORDED EVIDENCE

The tape recorded evidence can be relied upon during a departmental inquiry. In the case of Pratap Singh Vs. State of Punjab (AIR 1964 SC 72), the Supreme Court has ruled that the mere fact that there is a possibility of certain kind of evidence to be tampered with does not preclude it from being considered since almost all kinds of evidence can be tampered with. The court, however, ruled that while considering such evidence, it should be evaluate d in the context of the total circumstances of the case.9. VALUE OF THE EVIDENCE OF THE INVESTIGATING OFFICER

Whereas it is a fact that the evidence of the investigating officer is important as it helps inunfolding of the story, but since he cannot be a material witness or an eyewitness of the incident, hisevidence alone cannot be the basis of holding of the articles of charge as proved.10. ASSESSING THE VALUE OF ORAL EVIDENCE PRODUCED ON BEHALF OF DISCIPLINARY

AUTHORITY AND CHARGED OFFICER.

It is common knowledge that both parties in a departmental proceeding come up with different versions which are at times diametrically opposed, of the incident or happening. While assessing thevalue of their respective evidence, the Inquiry Officer should give more weight, to the one which is moreprobable, co-herent and consistent. The evidence which is apparently improbable and full of discrepancies should be totally discarded.11. EVALUATION OF DOCUMENTARY EVIDENCE

The evaluation of documentary evidence is easier than the evaluation of oral evidence. Since the departmental enquiries are basically fact-finding enquiries, the value of documentary evidence in such enquiries is slightly higher than the value of oral evidence for the simple reason that such evidence by its very nature is more exact and precise. Further such evidence is more reliable. This is not meant, in anyway, to depreciate the value of oral evidence. Where the oral evidence is direct, unequivocal and emphatic, it has the same value as accorded to the documentary evidence.

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12. EFFECT OF NON-PRODUCTION OF MATERIAL DOCUMENTS

The function of Inquiring Authority is to find out the truth in a case and the Presenting Officer is there to assist him in every way to achieve this object. Hence, if some document material to the fact of the case is in the possession of one party, it would be its duty to produce it before the Inquiry Officer. Failure to do so would raise a presumption adverse to the party possessing it.13. EVIDENTIARY VALUE OF F.I.R./ORIGINAL COMPLAINT

The original complaint/F.I.R. is important document since it throws light on the circumstances of the case. It, however, does not by itself, constitute a substantive evidence. The evidentiary value of a complaint/F.I.R. would depend on whether the complainant, the person who lodged the F.I.R. is examined during the enquiry and subjected to cross-examination by the accused. The non-examination of the complainant would not make the complaint totally inadmissible in departmental enquiry. In a case where disciplinary proceedings were initiated on receipt of a complaint by an authority and the complainant was not examined, the complaint would be admitted on the testimony of the authority who received it. In such cases, the evidentiary value of the complaint is not such unless it is corroborated in material details by other evidence oral, documentary or circumstantial. But, where the complaint itself is of a hearsay character, it has no evidentiary value.14. DOCUMENTARY EVIDENCE IN SUPPORT OF HANDWRITTING OF THE ACCUSED.

In the case of the documentary evidence where the handwriting of the suspected person is in doubt, it is always better to obtain the advice of the experts rather than to believe the testimony of the ordinary persons who have received no training to compare handwritings. If the expert appears before the Inquiry Officer, he must state reasons for his opinion expressed during the proceedings. The Inquiry Officer should evaluate the opinion of the expert on the basis of overall picture emerging from the deposition and cross examination like any other witness. But, where the opinion of the expert contained in the report or certificate and the document has not been challenged, and then the evidentiary value of the report will depend on the grounds mentioned for holding that opinion. The opinion expressed is not to be accepted mechanically. It is the duty of the Inquiry Officer to apply his mind to such opinion in the context of the circumstances of the case and reach independent conclusions.15. CIRCUMSTANTIAL EVIDENCE

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Circumstantial evidence is the evidence which does not prove the existence or non-existence of the principal fact by direct evidence but which establishes by direct evidence a circumstance or a chain of circumstances by which the existence or otherwise of the principal fact may be inferred. In criminal proceedings, the accused can be held guilty on circumstantial evidence provided the following conditions are satisfied:-(i) The primary facts or circumstances from which inference of guilt is drawn are duly proved by direct, oral or documentary evidence;ii) There is no missing link in the circumstantial evidence and the inferential links are accurately based on legal presumptions; andiii) The chain of the circumstances must exclude a hypothesis of innocence to a reasonable mind.But in the departmental proceedings, the rigors of the procedure of criminal trial are not applicable as the standard of proof demanded in departmental enquiries is that of preponderance of probability. The Inquiry Officer should ensure that the principles laid down in (i) and (ii) above are compiled with. As regards (iii) above, the Inquiry Officer should see that the criterion of preponderance of probability is satisfied before coming to a conclusion on the basis of circumstantial evidence.

CHAPTER- 18REPORT OF THE INQUIRY OFFICER

INTRODUCTION:

An oral inquiry is held to ascertain the truth or otherwise of the allegations leveled against the delinquent Government servant. The report of the inquiry officer is intended to serve as the basis on which the disciplinary authority has to take a decision as to whether or not the imposition of any penalty on the Government servant is called for. It is therefore, obligatory on the part of the inquiry officer to consider the entire evidence adduced during the inquiry before submitting his report to the disciplinary authority. The inquiry officers should submit his report in writing, duly signed by him. Even though, it is now a fully established proposition that the conclusion arrived at by the inquiry officer are not binding on the disciplinary authority and his findings are infused with life only when these are accepted after application of his mind by the disciplinary authority.REPORT TO BE BASED ON EVIDENCE ADDUCED DURING THE INQUIRY

It is now an established principle that the inquiry officer while writing his report should rely only on the evidence adduced during the inquiry and

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that he should not make use of any material which is not brought to his notice during the course of the inquiry.PERSONAL KNOWLEDGE OF INQUIRY OFFICER NOT TO BE USED

The next question that arises is whether the inquiry officer can make use of his personal knowledge and whether his report should be influenced by it. Now since the accepted principle in disciplinary proceedings is that the inquiry officer should consider only that evidence which has been produced during the Inquiry, it follows that no material from personal knowledge of the Inquiring Authority having a bearing on the facts of the case which has not appeared either in the articles of charge or in the statement of imputations or in the evidence adduced at the inquiry and against which the delinquent Government servant has had no opportunity to defend himself, should be imported into the case.

It is incumbent on the Inquiry officer to consider all the material brought on record. He cannot afford to omit any materials which have been produced during the course of the inquiry from his consideration. The report of the inquiry officer has to be based on the evidence adduced during the inquiry and anything happening before or after the inquiry has no relevance. It is the duty of the Inquiry Officer to ensure that no part of evidence which the accused Government servant was not given an opportunity to refute, examine, explain or rebut is relied on against him.REPORT NOT TO CONTAIN RECOMMENDATIONS ON QUANTUM OF PUNISHMENT.

The CCS (CCA) Rules, 1965 lay down that the inquiring Authority is required to give a finding on the articles of charge whether or not the same are proved, not proved or partially proved. The power to decide the quantum of punishment is vested in the disciplinary authority under Rule 15 of the above said rules. The Inquiry officer is therefore not empowered to give recommendations as to the quantum of punishment in his report.GUIDELINES FOR DRAFTING THE REPORT:Whether evidence Act and Criminal Procedure code is applicable to departmental inquiries.

The emphasis in departmental inquiries is heavily on facts. The rules also enjoin that whatever the inquiry officer does, should be lawful and in accordance with the rules on the subject. A legalistic approach is not called for as the legal principles with which the inquiry officers are primarily concerned are only the principles of natural justice. The Indian Evidence Act and the Criminal procedures code are not applicable in departmental inquiries except in so far as these are relevant in the context of the principles of natural justice.

STANDARD OF PROOF IN DEPARTMENTAL INQUIRIES.

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The standard of proof required in departmental inquiries differs materially from the standard of proof required in a criminal trial. The Supreme Court has, in the case of Union of India V Sardar Bahadur (1972)4 SCC 618, given a clear ruling that a disciplinary proceeding is not a criminal trial and the standard of proof required in a disciplinary inquiry is that of preponderance of probability and not proof beyond reasonable doubt.FORM AND CONTENTS OF THE REPORT

Rule 14(23) of the CCS(CCA) Rules 1965 makes it obligatory on the part of the Inquiry Officer to prepare a report since it provides that after the conclusion of the inquiry, a report shall be prepared. The report shall be in the narrative form and shall contain-

i) an introductory paragraph indicating the terms of reference under which the inquiry was held, i.e. a reference to the order appointing the Inquiry Officer, and the dates and places at which the inquiry was held;

ii) broad statement of the case under inquiry including the articles of charge and statement of imputations of misconduct or misbehavior or a gist thereof;

iii) charges which were admitted or dropped or not pressed, if, any, during the Preliminary Hearing;

iv) the charges that were not admitted and actually inquired into;v) any points arising out of the inspection of listed documents or

additional documents asked for by the charged officer including brief statement of facts and documents which were admitted;

vi) brief statement of the case of the disciplinary authority in respect of the articles of charge actually inquired into and the gist of the evidence produced on behalf of the disciplinary authority.

vii) Statement of defence of the charged official, and the defence evidence adduced during the inquiry, mention being made whether the charged official examined himself as his own witness;

viii) Points for determination arising out of the statement of prosecution case and defence case;

ix) An objective analysis of the evidence adduced during the inquiry from both sides and assessment of the same in respect of each point set out for determination and the finding thereon;

x) Finding on each article of charge with reasons therefore;xi) Signature of the Inquiring Authority.

The Inquiry Officer after he has signed and submitted the inquiry report becomes functus officio and has no power to change, modify or amend his report.MISBEHAVIOUR BEFORE INQIRY OFFICER BY THE CHARGED OFFICER

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At times, the charged officer may misbehave with the Inquiry Officer. The question arises whether the Inquiry Officer can proceed against such an official for misbehaviour. The answer is that an Inquiring Authority appointed under the CCS(CCA) Rules, 1965 by the disciplinary authority is not a ‘Court, as defined in the Contempt of Court Act’. Further, the Inquiry Officer, not being the disciplinary authority for the charged official, cannot proceed against him for misbehaviour in the proceedings before him. The Inquiry Officer, in such a case should make a report of misbehaviour of the charged official during the inquiry to the disciplinary authority, who after, considering the facts of the case, may initiate a separate disciplinary proceeding against the official, as misbehaviour with the Inquiry Officer constitutes misconduct.

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RECORD OF THE INQUIRY TO BE FORWARDED TO DISCIPLINARY AUTHORITY.

The Inquiring Authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of the Inquiry after he has written and signed his report. The record of the inquiry shall include:-i. the report of the inquiry prepared by the Inquiry Officer with spare

copies as required;ii. a folder containing the list of exhibits and the documents produced

during the inquiry on behalf of the disciplinary authority and the charged officer;

iii. a folder containing the list of witnesses produced on behalf of the prosecution and the defence separately along with their depositions arranged in the order in which they were examined during the inquiry;

iv. a folder containing written statement of defence, if any, written briefs filed by both sides, if any;

v. a folder containing Daily Order Sheets and applications, if any, submitted during the inquiry and order passed thereon along with orders of the disciplinary authority and the Inquiry Officer relating to the inquiry.

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CHAPTER- 19ACTION ON THE INQUIRY REPORT

INTRODUCTION

The reports of the inquiring Authority form the basis for further action by the disciplinary authority and hence needs its most careful consideration. It assists the disciplinary authority in coming to a conclusion as to the guilt of the Government servant and the penalty to be imposed on imposed on him. This, however does not mean that the findings of the Inquiring Authority are binding on the disciplinary authority and he must accept the same in all cases. It is open to the disciplinary authority to disagree with the findings of the Inquiring Authority and come to its own conclusions on the basis of its own assessment of the evidence adduced during the inquiry.

The disciplinary authority is required to carefully consider the report of the Inquiry Officer and the record of the inquiry when received by him. The disciplinary authority must satisfy itself that the Government servant was afforded reasonable opportunity to defend himself as per rules and that the principles of natural justice were followed by the Inquiry Officer before recording its findings on each articles of charge indicating whether or not the charge was proved.

The findings recorded by the Inquiry Officer become infused with life only when the disciplinary authority applies his mind to the material which inter-alia consists of the report of the Inquiry Officer along with the evidence and the record, etc. It is, therefore, necessary and in keeping with the principles of natural justice and the concept of reasonable opportunity enshrined in Article 311(2) of the Constitution that the delinquent employee should be provided with a copy of the report of Inquiry Officer with an opportunity to address the mind of disciplinary authority before the axe falls on him. The opportunity contemplated is the one to enable the delinquent to persuade the disciplinary authority which makes up its mind as regards the guilt of the delinquent that such a finding is not warranted in the light of the report of the Inquiry Officer.

Where the disciplinary authority agrees with the findings of the Inquiring Authority, it is not necessary for it to record its reasons as to why it accepts the findings of the Inquiring Authority. It is, however, conceivable that if the disciplinary authority does not accept the findings of the Inquiring Authority which may be in favour of the delinquent official and proposes to impose a penalty, it should give reasons why it differs from the conclusions of the Inquiring Authority, though even in such a case, it is not necessary that the reasons should be detailed or elaborate.FURTHER ENQUIRY

It is open to the disciplinary authority where, it is of the opinion that the inquiry has not been held in accordance with the rules and procedure as laid down under the CCS(CCA) Rules, 1965, to remit the case to the Inquiring Authority for further inquiry and report after recording its reasons in writing.

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The Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14 , as far as may be.FRESH INQUIRY

The next question that arises is whether the disciplinary authority is competent to order a fresh inquiry where is it not satisfied with the findings of an earlier inquiry. Normally, in such an eventuality, the disciplinary authority should disagree with the findings of the Inquiring Authority after recording its own reasons and record his own findings on the basis of the evidence already adduced during the inquiry. As already stated there is no provision in Rule 15 for completely setting aside the previous inquiries on the ground that the report is not to the liking of the disciplinary authority. If powers for fresh inquiry are vested with the disciplinary authority, there will be nothing to prevent them to order fresh inquiry one after another till a report is received of their liking.

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COURSE OF ACTION OPEN FOR DISCIPLINARY AUTHORITY ON RECEIPT OF INQUIRY REPORT

It is, therefore, clear from the foregoing discussion that the disciplinary authority has the following courses of action open to it.

1. To accept the findings of the Inquiring Authority. No reasons need to be recorded in this case.

2. To disagree with the findings of the Inquiring Authority and to record his own findings on all or any of the articles of charge after recording his brief reasons in writing for the disagreement after giving an opportunity of representation to the delinquent official.

3. To remit the case to the same Inquiring Authority, if available, or to another Inquiring Authority for further inquiry and report after recording reasons in writing. While remitting the case, the disciplinary authority should indicate the irregularity noticed, such as violations of procedure or the constitutional provisions etc; the stage from which further inquiry should be held and any additional evidence to be recorded, if considered necessary.

ACTION WHEN ARTICLES OF CHARGE ARE NOT PROVED

In case where the articles of charge are not held to be proved by the disciplinary authority either on the basis of the report of the Inquiring Authority or on its own findings and it is of the opinion that the Government servant should be exonerated, it shall make an order to that effect and communicate it to the Government servant together with a copy of the report of the Inquiring Authority if the same had not already supplied, its own findings on it and brief reasons for its disagreement , if any, with the findings of the Inquiring Authority.COPY OF THE INQUIRY REPORT TO BE GIVEN TO CHARGED OFFICER IN ALL CASES

A question is generally raised whether it is obligatory on the part of the disciplinary authority to furnish a copy of the inquiry report to the charged officer, even in those cases where the disciplinary proceedings though initiated under Rule 14 of the CCS(CCA) Rules, 1965 end either in the imposition of a minor penalty or result in the dropping of the proceedings. It has been decided in consultation with the Ministries of Home Affairs and Law that a copy of the inquiry report has to be furnished to the accused official, if not already supplied along with the final order of the disciplinary authority irrespective of the fact whether the final order imposed a major or a minor penalty or only orders dropping of the proceedings. This is necessary to enable the official to scrutinize the report for the purpose of filling an appeal, if he so wishes.IMPOSITION OF MINOR PENALTY

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If the disciplinary authority, on consideration of the report of the Inquiring Authority is of the opinion that any of the minor penalties specified in clauses (i) to (iv) of Rule 11 of the CCS(CCA) Rules, 1965, should be imposed on the Government servant, it shall notwithstanding anything contained in Rule 16 of the CCS(CCA) Rules, 1965, make an order imposing such penalty.DETERMINATION OF QUANTUM OF PUNISHMENT

In determining the quantum of punishment, the disciplinary authority should take into account only that material which the Government servant had the opportunity to rebut or explain. The basic object is to ensure that no material of which the Government servant was not given prior notice and for which he did not have adequate opportunity of rebutting or explaining should be taken into account for deciding the extent of punishment to be awarded.

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WHETHER PAST RECORD TO BE CONSIDERED

A question is generally raised whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on an officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned. The Ministry of Home Affairs has considered this question in consultation with the Ministry of Law. It is considered that if previous bad record, punishment etc., of an officer is proposed to be taken into account in determining the penalty, it should be made a specific charge in the charge sheet itself, otherwise any mention of bad record in the order of penalty unwittingly or in a routine matter, when this had not been mentioned in the charge sheet, would vitiate the proceedings and so should be avoided. (Ministry of Home Affairs O.M No.134/20/68-AVD, dated 28th August, 1968).

The final order must be signed by the disciplinary authority competent to impose the penalty mentioned in the order. It this is not done the order is liable to be quashed for want of jurisdiction. However, a higher authority such as the appellate authority or the reviewing authority can sign the order imposing the penalty if the disciplinary proceeding were initiated by such an authority. The authority competent to impose a minor penalty cannot sign a final order imposing a major penalty even if the disciplinary proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were initiated by it.COMMUNICATION OF ORDER

The final order made by the disciplinary authority must be communicated to the Government servant along with:-

a) a copy of the report of the Inquiring Authority if an inquiry has been held and the copy of the report has not already been furnished to the employee.

b) a statement of the findings of the disciplinary authority, if these are different from those of the Inquiring Authority together with brief reasons for its disagreement, if any;

CAN THE DISCIPLINARY AUTHORITY CANCEL HIS OWN ORDER IMPOSING THE PENALTY

The disciplinary authority has no inherent powers to cancel the penalty imposed by him. Such a power to cancel his own penalty order is not envisaged under the CCS (CCA) Rules, 1965.FINAL ORDER TO BE A SPEAKING ORDER

The final order imposing the penalty should be a speaking order. It is an essential attribute of a quasi-judicial order that it should contain the reasons for conclusions reached.

The final order should be clear, indicating the scope of penalty imposed. Care should be taken to pass such an order as can be

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implemented. An order which is vague and hence cannot be implemented is an infructuous order. Making of such an order should be avoided.IMPOSITION OF MORE THAN ONE PENALTY

Normally, the need for imposing two statutory penalties at a time would not arise. However, the penalty or recovery from the pay of the Government servant of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders can be imposed along with another penalty. The punishing authority would, however, do well to bear in mind that when more than one penalty is imposed one of which is recovery of pay of the loss caused to Government, the net cumulative effect on the Government servant should not be of such severity as to make it impossible for him to bear the strain.

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BURDEN OF PROOF IN DEPARTMENTAL PRECEEDINGS:

WHAT IS BURDEN OF PROOF?

When a person is bound to prove the existence of any fat, it is said that the burden of proof lies on that person. (Section 106. Indian Evidence Act)

It was held in Sulhendra V.Union Territory. AIR 1962 that in departmental proceedings the burden of proof was on the employer. The court observed-“Enquiring officers must understand that a charge has to be proved against the delinquent and it is not for the delinquent to absolve himself from the charge” And again “the burden was on the prosecution to bring home the charge against the petitioner. But the burden appears to have been thrown on the petitioner to exonerate himself. DISMISSAL WITH RETROSPECTIVE EFFECT NOT PERMISSIBLE:

An order of dismissal cannot be given effect to retrospectively from the date of commencement of suspension but only from the date on which the order of dismissal is passed.

Whenever orders of Dismissal/Removal are passed on a Govt. servant, consequent on his desertion or conviction in a court of law or for any other reason, the orders should be made effective only from the date of issue of the orders and not from an earlier date.DISCIPLINARY CASES SHOULD BE CLOSED ON THE DEATH OF THE CHARGED OFFICIAL.

Where a Govt. servant dies during the pending of the inquiry, i.e. without charge being proved against him, imposition of any of the penalties prescribed under the CCS(CCA) Rules 1965, would not be justifiable. Therefore, disciplinary proceedings should be closed immediately on the death of the charged Govt. servant.NO CLOSING OF DISCIPLINARY PROCEEDINGS WITHOUT INTIMATION TO THE ACCUSED

Once disciplinary proceedings are initiated against an official, the proceedings cannot be closed without sending intimation to that effect to the accused official.

Disciplinary proceedings against an employee who has been dismissed or removed from service in another disciplinary case will stand suspended. These proceedings can be reviewed, if and when the official is re-instated in service on appeal.

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CENSURE AT LEAST TO BE AWARDED WHEN DECIDED TO PENALIZE A GOVT. SERVANT AS A RESULT OF DEPARTMENTAL PROCEEDINGS AND WARNINGN NOT TO BE ADMINISTERED:

19. TIME LIMIT FOR PASSING FINAL ORDER ON THE INQUIRY REPORT:

In cases which do not require consultation with the Central Vigilance Commission or the UPSC, it should normally be possible for the disciplinary authority to take a final decision on the inquiry report within a period of 3 months at the most. In cases where the disciplinary authority feels that it is not possible to adhere to this time limit, a report may be submitted by him to the next higher authority indicating the additional period within which the case is likely to be disposed of and the reasons for the same. In cases, requiring consultation in the CVC and UPSC also every effort should be made to ensure that such cases are disposed of as quickly as possible. It is imperative that the time limit of three months prescribed should be adhered to after receipt of the advice of CVC or UPSC.

CHAPTER- 20

IMPLICATIONS OF MINOR PENALTIES When the Punishment of Censure is to be awarded

As per Government of India, Ministry of Home affairs, the scope of "censure" is summarised as follows:

" an order of 'censure' is a formal and public act intended to convey that the person concerned has been guilty of some blame-worthy act or omission for which it has been found necessary to award him a formal punishment, and nothing can amount to a 'censure' unless it is intended to be such a formal punishment and imposed for good and sufficient reasons after following the prescribed procedure. A record of the punishment so imposed is kept on this officer's confidential rolls and the fact that he has been censured will have its bearing on the assessment of his merit or suitability for promotion to higher posts."[Circular No.29/32//5/Ests(A)dated 13.12.56 - Ministry of Home Affairs]In a subsequent circular the Ministry has clarified the procedure for making the punishment of censure. It has further pointed out that the officer making the formal order of censure should act in a responsible manner and should make an objective analysis.In a more recent clarification it is observed, that at least 'censure' to be awarded if the official is to be penalised. In other words it is pointed out that 'warning' should not be issued as a result of such proceedings. The penalty of 'censure' is the minimum to be imposed, when it is found that as a result of the proceedings some blame attaches to the officer[OM.No.2011/1/79 Estt (A) dated the 30th January, 1982]

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The clarifications conclusively convey that 'censure' is an outlet, to close the disciplinary case, where the main allegations are not proved, but some minor blame is found still attaching to the delinquent officer. It is neither justified to inflict harsh punishment to the delinquent officer, nor possible to award him totally a clean chit. The punishment of 'censure' is a way out in such situations.

Penalty of Recovery of Loss Caused to the Employer due to theNegligence, or Breach of Orders by the Delinquent Officer

If the employer or the organization that the employee serves incurs any loss on account of the employee, it can be recovered invoking the contractual obligations of the employee and no inquiry is needed. If such loss is recovered it is not a punishment, it is by way of re-compensation. The fact is that merely invoking a contractual obligation and recovering the loss, does not amount to a punishment, while it is done through a disciplinary action; it lends a stigma to the employee and recognizes that he has committed a misconduct. It is also possible that the employee may not be co-operating and resisting recovery, when requested for outside a departmental inquiry. In such a case initiating a disciplinary case and serving a charge sheet is the answer.Further it is also clarified that "while normally there should be no necessity to imposing two penalties at a time, there is no bar to awarding the penalty of recovery along with any other penalty. But in such cases also the severity of the strain vis-a-vis the nature of the offence committed by the official should be carefully assessed and borne in mind by the punishing authority.Further the penalties indicated in Rule 11 of C.C.S.(C.C.A) Rules are graded only. Accordingly when the penalty of recovery is awarded, there should be no necessity to award a lower penalty. The necessity to award another penalty should arise only when it is considered absolutely necessary to award a higher penalty like 'reduction'.[D & G, P & T.No.105/26/8-Vig III dated 30.03.81]

In such cases it is expedient to effect recovery in convenient installments spread over a period of time, so that undue hardship is not caused to the employee. It is desirable that the employee's take home pay is not less than 50% of his gross emoluments, less deduction for P.F and Life Insurance.(which are in the nature of savings and not loan repayments)

Withholding of Increments

Withholding of increment can be effected only on increments accruing after date of punishment order. It cannot affect the increment which was due prior to the date of the punishment order, even though it may not have been actually released due to any administrative reasons of delay.

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When the penalty of withholding increment is awarded to an employee, it is obligatory on the part of the disciplinary authority to specify the period for which the penalty must remain current. It is further clarified that where an order of penalty purports to withhold, the "next increment" for a specified period, it implies that all the increments falling due during that period will be withheld, because without getting the next increment, an officer cannot get increments falling after the next increment. All disciplinary authorities should therefore, ensure that the orders of penalty are correctly worded in accordance with their intention. Thus if it is desired that only one increment should be withheld over a specified period it should not be stated in the order that the "next increment" be withheld for a specified period. The proper course of action in such a case would be to specifically order that "one increment' be withheld for a specified period. Such an order will have the effect of withholding one increment only over a specified period and the official concerned will be able to draw the subsequent increments falling during the period, of course depressed by one increment which is withheld.

[D.G & P.T. Letter No.20/41/66-Disc., dated the 14th April,1967]

This punishment should not be awarded when the employee/officer has already reached the ceiling of his scale of pay and has no more increments due to be secured in the existing scale. In such a case the punishment becomes illogical and unenforceable. A milder form of this punishment is to withhold increment without cumulative effect. In this case, the next ensuing increment is not released on due date, but released along with the increment for the subsequent year after the next year or after the specific period of withholding expires.

In case of all minor penalties, except (iii) (a) under Rule 11, the employee continues to draw his current remuneration, and only one or more benefits to accrue in future may be suspended or stopped.

But when a punishment of withholding of increment is awarded and its effects are in operation, i.e. the officer employee has not reached the level of salary, that he would reach, but for the punishment, a second punishment of withholding of increments, if awarded can be implemented, only after the full effects of the first punishment are cleared. The relevant clarifications of the Government of India are as under:

"..it has now been decided that where the disciplinary authority imposes penalties of stoppage of increment one after the other in separate cases, on the Government Servant, the effect of the first punishment order of stoppage of increment will continue for the period specified in the punishment order. Thereafter the pay of the government servant will be raised by giving him increments, which, but for the imposition of the penalty, would have been admissible to him and only then the second order of stoppage of increment will be made effective, which will continue for the period specified in the second punishment order for stoppage of increment and so on."

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[Director General, Posts & Telegraphs No.230/308/75--Disc.II, dated 3rd May,1976]

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Implementation of the Second Penalty Imposed duringthe Currency of the First Penalty

Guidelines issued by the Director of Posts & Telegraphs are quoted as under:

A question has been raised as to how the penalties imposed on a Government Servant are to be implemented, when the punishment awarded to him against the earlier proceeding is already current. In other words, when the first penalty imposed against the Government Servant is of a lower Grade and the second penalty of higher grade is imposed against him during the currency of the first penalty.

The normal procedure should be that when any disciplinary case crops up during the currency of an earlier penalty, the disciplinary authority should clearly indicate in the punishment order whether the two penalties should run concurrently or the subsequent penalty should be implemented only after expiry of the first penalty. It has been decided that where, however, such a specific mention has not been made, two punishments should run concurrently and the higher penalty, even though ordered later, should be implemented immediately and after expiry of its period, if the currency of the period of earlier punishment, i.e. lower punishment, still continues, then the same may be implemented for the balance period. In this context the example may bring the point home.

Supposing an official was punished vide order dated, 1st December, 1977 with reduction to the minimum stage of Rs.425/- in the scale of Rs.425-640 for a period of four years with effect from 1st January 1978. Another punishment order against him was issued on 28th June, 1978 inflicting a penalty of reduction from Scale (Rs.425-640) to time scale (Rs.280-480) at the stage of Rs.396/- for a period of three years with effect from 1st July, 1978. In this case, it would be observed that the currency of the first penalty is from 1-1-1978 to 31.12.81 and that of the second penalty (higher one) from 1-7-78 to 30.06.81. With the imposition of the higher penalty during the period of the first punishment, the second punishment, i.e. the higher one, would become effective from 1-07-1978 and would last up to 30.06.81. For the balance period, i.e. from 01.07.1981 to 31.12.1981, the first penalty which is deemed to be running concurrently would be implemented.

[Director of Posts & Telegraphs in Letter No.154/5//78-Disc.II, dated the 30th July, 1981]

Withholding of Promotion

Obviously if the officer is a misfit and not eligible for promotion in the foreseeable future, this punishment if awarded to him has no significance. If the promotion is already approved and the employee is kept in panel along with other officers, this punishment may normally be considered and the

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effective date of his promotion deferred. However, if the officer is not already selected and paneled, awarding this penalty should not stop the eligibility of the officer for being considered for promotion. And if he is selected for the promotion, he must be allowed to join the higher post, i.e. enjoy the benefit of promotion, after the period of withholding is over.

Promotion of Employees on whom Penalty has been Imposed

Whether the penalty of 'censure' is a bar to eligibility to sit for departmental Examination for promotion or for promotion proper?

"The fact of the imposition of the minor penalty of censure on a government servant does not by itself stand against the consideration of such person for promotion, as his fitness for the promotion has to be judged, in the case of promotion by seniority, on the basis of the over-all assessment of his service record, and in the case of promotion by selection by merit, on the basis of his merit categorisation, which is again based upon an overall assessment of his service record. So far as the eligibility of the government servant who has been awarded the penalty of 'censure', to appear at a departmental promotional examination is concerned, the same principle would apply, viz. that he cannot, merely because of the penalty of 'censure' be debarred at appearing for such examination. In case, however, the rules of such examination lay down that only those eligible persons can be allowed to appear at the examination, who are considered fit for the purpose, the fitness of an eligible candidate, who has been awarded the penalty of censure, to appear at the examination has to be considered on the basis of an overall assessment of his service record and not merely on the basis of the penalty of censure."

[Govt. of India, Chief Secretary, (Departmental personnel) O.M.No.21/5/70-Ests.(A) dated the 15th May 197l]

Whether the Responsibility of the Employee for any loss is indirect, should he be debarred from being considered for promotion during the period of recovery of loss; and In case of stoppage of increment should an employee be debarred from being considered for promotion?

"Recovery from the pay of the government servant of the whole or any part of pecuniary loss caused by him to the government by negligence or breach of orders, of withholding of pay are also minor penalties laid down in Rule No.11 of the (C.C.S.) (C.C.A) Rules1965. As in the case of promotion of a government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to government or of withholding of his increment(s) does not stand in the way of his consideration of promotion though in the latter case promotion is not given effect to during currency of the penalty. While therefore the imposition of such a penalty does not by itself debar, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his

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suitability or otherwise for promotion and of his fitness for admission to a Departmental Promotional Examination (where fitness of the candidate is a condition precedent to such admission")

[Govt. of India, Chief Secretary, (Departmental personnel) O.M.No.21/5/70-Ests.(A) dated the 15th May 197l]

An officer whose increments have been withheld or who has been reduced to a lower stage in the time scale, cannot be considered on that account to be ineligible for promotion to higher grade, as the specific penalty of withholding promotion has not been imposed on him. The suitability of the officer for promotion should be assessed by the competent authority, as and when occasion arises for such assessment. In assessing the suitability the competent authority will take into account the circumstances leading to the imposition of the penalty and decide whether in the light of the general service record of the officer and the fact of the imposition of the penalty he should be considered suitable for promotion. Even when, however, the competent authority considers that in spite of the penalty the officer is suitable for promotion, the officer should not be promoted during the currency of the penalty.

[Govt. of India, Chief Secretary, (Departmental personnel) O.M.No.22011/6/75-Ests.(D) dated the 30th December, 1976]

CHAPTER-21APPEALS, REVIEWS AND REVISION

Introduction:The CCS(CCA) Rule 1965 provide for appeal to prescribed appellate authorities against orders passed by the disciplinary authority on any of the penalties mentioned in Rule 11 and also some other orders passed by an authority like suspension, enhancing the penalty etc.Orders Against which Appeal LiesAn employee who is in service or has ceased to be in Sangathan’s service, may prefer an appeal against the following orders:-

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i. an order of suspension made or deemed to have made;ii. an order imposing any of the prescribed penalties whether made by

the disciplinary authority or by any appellate or reviewing authority;iii. an order enhancing a penalty;iv. an order which :

a) denies or varies to his disadvantage his pay, allowances, pension or other conditions or service as regulated by rules or by agreement,

b) interpreted to his disadvantage the provisions of any such rule or agreement.

An order:

a) stopping him at the efficiency bar in a higher scale of pay on the ground of his unfitness to cross the bar,

b) reverting him while officiating in a higher service, grade or post to a lower service, grade or post, otherwise than a penalty,

c) reducing or withholding the pension, including additional pension, gratuity and any other retirement benefit, or denying the maximum pension admissible to him under the rules.

d) Determining the subsistence and other allowances to be paid to him for the period of suspension or for the period during which he is to be under suspension or for any portion thereof,

e) Determining his pay and allowances;i) for the period of suspension, orii) for the period from the date of his dismissal, removal or

compulsory retirement from service or from the date of his reduction to a lower service grade, post or stage in a time-scale of pay, to the date of his re-instatement or restoration of his service, grade or post, or

f) determining whether or not the period from the date of his suspension or from the date of his dismissal, removal, compulsory retirement or reduction to a lower service, grade, post, time-scale of pay or stage in a time-scale of pay to the date of his reinstatement or restoration to his service, grade or post shall be treated as a period spent on duty for any purpose.

Orders against which Appeal does not Lie.No appeal lies against the following orders:

i. any order made by the Chairman, Kendriya Vidyalaya Sangathan;ii. any order interlocutory nature or of the nature of step-in-aid or the

final disposal of disciplinary proceedings, other than an order of suspension; and

iii. any order passed by an Inquiry Officer during the course of the Inquiry. Under Rule 14 of the CCS(CCA) Rules, 1965.

Period of Limitation for Appeals

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No appeal shall be entertained unless it is preferred within a period of 45 days from the date on which a copy of the order appealed against is delivered to the appellant. However, the appellate authority may entertain the appeal even after the expiry of a period of 45 days if it is satisfied that the appellant had sufficient cause for not preferring the appeal in time.Form and Content of AppealEvery appeal shall be preferred by the appellant in his own name and addressed to the authority to whom the appeal lies. It shall contain all material statements and arguments on which the appellant relies, shall not contain any disrespectful or improper language and shall be complete in itself.Channel of submission

The appeal will be presented to the authority to whom the appeals lies, a copy being forwarded by the appellant to the authority making the order.The authority which made the order appealed against will, on receipt of the copy of the appeal, forward the same to the appellate authority, without any avoidable delay and without waiting for any direction from the appellate authority, with all the relevant records and its comments on all points raised by the appellant. Misstatement, if any, should be clearly pointed out.Consideration of Appeal

The appellate authority, while considering the appeal, should see:I. whether the procedure laid down in the rules has been complied with

and if not, whether such non-compliance has resulted in the violation of any provisions of the constitution or failure of justice.

II. Whether the findings of the disciplinary authority are warranted by the evidence on the record of the case; and

III. Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe

Orders by Appellate AuthorityIn the light of its finding the appellate authority passes an order:i) confirming, enhancing, reducing, setting aside the penalty; orii) remitting the case to that authority which imposed or enhanced the

penalty or to any other authority with such direction as it may deem fit in the circumstances of the case.

Authorities Competent to Make a Revision/Review:

The authorities competent to make a revision or review have been specified in the Appointment, promotion, seniority Rules 1971 as amended from time to time.Orders by Revision / Review:

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After considering all the facts and circumstances of the case and the evidence on record the Revision/Reviewing authority may pass any of the following orders:

a) confirm, modify or set aside the order; orb) confirm, modify or set aside the penalty imposed by the order, or

impose any penalty where no penalty has been imposed; orc) remit the case to the authority which made the order or to any

other authority directing such authority to make such further inquiry as it may consider proper in the circumstances of the case; or.

d) Pass such other orders as it may deem fit.

If the penalty proposed to be imposed after review including enhancement of penalty, is a minor penalty, the employee concerned shall be given a reasonable opportunity for making a representation against the action proposed. In case the penalty proposed to be imposed by enhancing the penalty already imposed or otherwise is a major penalty, the employee concerned shall be afforded reasonable opportunity and oral inquiry will be held. The employee will also be given an opportunity of showing cause against the penalty proposed on the evidence adduced during inquiry.Procedure of Revision/Review:An application for Revision/Review will be dealt with as if it were an appeal.The reviewing authority will not revise/review a case until after the expiry of the period of limitation for an appeal or if an appeal has been preferred already until after the disposal of the appeal.

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MOCK INQUIRY

MODEL CHARGE-SHEET AND INQUIRY REPORT

LALKAKA CASE

No. VIG (CS)/15(7)Government of IndiaDepartment of SupplyDirectorate General of Supplies & Disposal(Vigilance Section)

Dated: the 28th June, 1975 New Delhi

MEMORANDUM

The undersigned proposes to hold an inquiry against Shri Lalkaka, UDC, DGS&D, New Delhi under Rule-14 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965. The substance of the imputations of misconduct or misbehaviour in respect of which the inquiry is proposed to be held is set out in the enclosed statement of Articles of Charge (Annexure-I). A statement of the imputations of misconduct or misbehaviour in support of each Article of Charge is enclosed (Annexure-II). A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained are also enclosed (Annexures III and IV).2. Shri Lalkaka is directed to submit within 10 days of the receipt of this Memorandum a written statement of his defence and also to state whether he desires to be heard in person.3. He is informed that an inquiry will be held in respect of those articles of charge as are not admitted. He should, therefore, specifically admit or deny each article of charge.4. Shri Lalkaka is further informed that if he does not submit his written statement or defence on or before the date specified in para2 above, or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of Rule-14 of the CCS (CCA) Rules, 1965 or the orders/directions issued in pursuance of the said Rules, the inquiring authority may hold the inquiry against him ex-parte.5. Attention of Shri Lalkaka is invited to Rule 20 of the Central Civil Services (Conduct) Rules, 1964 under which no Govt. servant shall bring or attempt to bring any political or outside influence to bear upon any superior authority to further his interests in respect of matter pertaining to his service under the Government. If any representation is received on his behalf from another person in respect of any matter dealt within these proceedings, it will be presumed that Shri Lalkaka is aware of such a representation and that it has been made at his instance and action will be taken against him for violation of Rule 20 of the CCS (Conduct) Rules, 1964.6. The receipt of this Memorandum may be acknowledged.

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Sd/-Director (Administration)

To

Shri Lalkaka, UDCDGS&DNew Delhi

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ANNEXURE-I

Statement of articles of charge framed against Shri Lalkaka, UDC, DGS&D, New Delhi.

That said Shri Lalkaka while functioning as Upper Division Clerk during the period 1972-74 committed gross misconduct and failed to maintain devotion to duty while dealing with A/T No.SMH-5/107/45/650/16.12.71/PAQD/644 dated 8.3.72 placed on M/s Saru Smelting Private Ltd., Meerut for supply of 67.00 tones of Zinc Base Alloy Ingots in as much as he failed to take prompt and timely action on firm’s letter dated 25.4.73 which resulted in loss of rupees Nine Lakhs in the risk purchase which could not be recovered from defaulting firm.

2. Shri Lalkaka has thus failed to exercise reasonable care in the discharge of his official duties and thereby contravened Rule 3(I) (II) of CCS (Conduct) Rules, 1964. He has therefore rendered himself liable to disciplinary action under CCS (CCA) Rules, 1965.

ANNEXURE-II

Statement of imputations of misconduct or misbehaviour in support of the

Article(s) of charge framed against Shri Lalkaka, UDC, DGS&D.

A/T No. SMH-5/107/45/650/16.12.71/PAQD/644 dated 8.3.72 was placed on M/s. Saru Smelting Pvt. Ltd., Meerut for the supply of 67.00 tones of Zinc Base Alloy Ingots for General Manager, Ordnance Factory, Katni. The D/P stipulated in the A/T was 31.12.72. The firm supplied 22.3864 tones within the delivery period. In their telegram dated 28.12.72 and letter dated 25.4.73, the firm intimated that they had offered the entire balance quantity for inspection on 28.12.78. The inspector in this case was Inspector of Metals, Muradnagar (U.P.). DGS&D wrote to the Inspector on 7.2.73 to indicate the supply position. The Inspector replied on 16.2.73 that the firm had offered 38.7940 tones for inspection, but due to some technical reasons the stores could not be accepted and the firm were advised to put up samples for test before the stores could be finally accepted. The firm wrote to the Inspector on 9.4.73 that the material offered by them got mixed with other lots and with great difficulty they had been able to segregate about 10 tones of the materials and requested the Inspector to depute someone for inspection around 16.4.73. As regards balance quality, the firm stated that they were approaching DGS&D for extension. The Inspector replied to the firm that inspection could be carried out only on receipt of suitable extension from DGS&D. The firm in their letter dated 25.4.73 to DGS&D requested for extension by 10-12 weeks. In the meantime, the case was examined and as the contract had been kept alive by the Inspector’s letter dated 16.2.73 and

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17.4.73, a reference was made to the Ministry of Law on 30.4.73 for future course of action. The Ministry of Law advised on 19.5.73 that as the contract had been kept alive, a notice of performance would have to be issued before considering the question of cancellation of the contract. Accordingly, a performance notice was issued to the firm on 25.5.73 calling upon them to complete supply by 15.7.73 failing which the outstanding quantity would be cancelled at their risk and cost. The performance notice also contained denial clause and reservation of right to recover L/D. The firm in their letter dated 30.5.73, while acknowledging notice pointed out that the extension should have been granted upto 20.8.73 as per their letter dated 25.4.73 and also they could not accept the R/R and denial clauses. They, therefore, requested to waive these clauses and stated that they accepted the extension under protest.

2. the firm in their letter dated 13.3.73 intimated that the balance quantity could not be manufactured during the extended D/P due to shortage of power in U. P. and therefore requested for D/p by 8-10 weeks from the date of receipt of A/L to enable them to manufacture and offer the stores for inspection. The AD(S) concerned stated that reference might be made to the Indentor whether he would agree for grant of extension in delivery period, but the Dy. Director pointed out that in view of telex from the DGOF and in view of urgency of the requirements, the D/P might be extended by 10 weeks with R/R. This proposal was approved by D(S). Accordingly, an A/L was issued on 30.7.73 extending the D/P from 15.7.73 to 20.10.73 with R/R and denial clauses. This letter was also acknowledged by the firm under protest in view of the conditional clauses. The firm stated that the delay in supply was due to reasons beyond their control. It was ascertained from the progress wing on 20.11.73 that the firm had not supplied the balance quantity and they did not appear to be interested in supplying the stores. The case was referred to the Ministry of Law on 19.1.74 for advice whether the A/T could be cancelled for the outstanding quantity at the risk and cost of the firm treating 20.10.73, the last extended D/P as the date of breach. It was also stated that the A/T had not been kept alive after 20.10.73. The Ministry of Law advised that the contract could be cancelled treating 31.12.72 as the date of breach. The date 31.12.72 was the initial mutually agreed D/P stipulated in the A/T. on a further reference made by the Purchaser etc., the Ministry of Law confirmed on 5.2.74 that the date of breach would be 31.12.72. The A/T was cancelled on 25.2.74 for the balance quantity at the risk and cost of the firm.

3. For the balance quantity, an advertised tender was opened on 6.4.74. But it was not possible to recover the extra amount involved in the risk purchase from the defaulting firm as the risk purchase could not be made within six months from the date of breach.

4. The AD(S) in his note dated 30.4.73 while referring the case to the Ministry of Law on 30.4.73 had made reference to the Inspector’s letter dated 16.2.73 and 17.4.73 and firm’s letter dated 9.4.73. In the meantime letter dated 25.4.73 from the firm was received on 28.4.73 which was initialed by Assistant Director (Supplies) on 30.4.73. In this letter the firm

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had requested for extension by 10-12 weeks. In the amendment letter dated 25.5.73, extension was granted to the firm up to 15.7.73, which was less than 8 weeks and this letter was also objected to by the firm vide their letter dated 30.5.73. Moreover, in DGS&D letter dated 25.5.73 no reference of firm’s letter dated 25.4.73 was given. Before issuing the performance notice, the request made by the firm in their letter dated 25.4.73 for extension of D/P should have been taken into account. This important letter was not brought into the picture at the appropriate time.

5. It is seen from the purchase file that the firm’s letters dated 25.4.73 (where they sought for extension by 10-12 weeks) and 30.5.73 (where they objected to extension granted in our letter dated 25.5.73) were put up by dealing hand on 23.6.73. The AD(S) in his note of the same date stated that no action was necessary in view of the performance notice already given. If immediate reference had been made to the Ministry of Law pointing out the request letter dated 25.4.73, a suitable date of extension in delivery period might have been fixed with Law Ministry’s approval and that would have been taken as the date of breach.

6. The failure on the part of Shri Lalkaka to take prompt action on the firm’s letter dated 25.4.73 resulted in loss of Rupees nine lakhs in risk purchase which could not be recovered from the defaulting firm. Shri Lalkaka has thus not displayed the devotion to duty expected of a Govt. servant. He has thus, contravened Rule 3(1) (ii) of CCS (Conduct) Rules, 1964 and rendered himself liable to disciplinary action under CCS (CCA) Rules, 1965.

ANNEXURE-III

List of documents by which the articles of charge framed against Shri Lalkaka, UDC, DGS&D, New Delhi are proposed to be sustained. 1. Main file No.SMH-5/644 2. File No.SMH-5/107/45/650/16/12/71/644 (Vols. I & II).

ANNEXURE-IV

List of witnesses by whom the articles of charge framed against Shri Lalkaka, UDC, DGS&D, New Delhi are proposed to be sustained.

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To

The Director of AdministrationD. G. S.& D.New Delhi

Sir,

I deny the allegations raised against me in your Memo No. VIG (CS)/15 (97) / 74 dated 28.6.74.

However, to give proper defence, I would request for an opportunity to inspect the documents listed in Annexure-III of the charge-sheet and in addition the statement of defence given by the higher officers, if they have also been charged.

Yours faithfully Sd/- (Lalkaka) UDC DGS&D, New Delhi

Dated: 9.5.1975

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No. VIG (CS)/15(97)Government of India

Directorate General of Supplies & Disposals(Vigilance Section)

Dated: New Delhi the 20th August 1975

O R D E R

Whereas the Govt. servants specified in the margin are jointly concerned in a disciplinary case.

Now, therefore, the undersigned, in exercise of the powers conferred by sub-rules (1) and (2) of Rule 18 of Central Civil Services (Classification, Control and Appeal) Rule, 1965 hereby directs:

(1) That disciplinary action against all the said Govt. servants shall be taken in a common proceeding;

(2) That the undersigned shall function as Disciplinary Authority for the purpose of the common proceedings and shall be competent to impose all the penalties mentioned in Rule 11 of the said Rule and

(3) That the procedure prescribed in Rule 14 of the said rules shall be followed in the said proceedings.

Dir. General D.G.S.& D.

(1) Shri N. Umarji Asstt. Director (S)

DGS&D, New Delhi

(2) Shri Lalkaka, UDCDGS&D, New Delhi

Copy to:-

1. Shri Umarji, Asstt. Director (S), DGS&D, New Delhi2. Shri Lalkaka, UDC, DGS&D, New Delhi3. Shri A.B.C., Commissioner for Departmental Inquiries, Manjagar House Hutments, New Delhi (Inquiry Officer)4. Shri S C Hai, Section Officer, DGS&D, New Delhi (Presenting Officer)

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No. VIG (CS)/15(97)Govt. of India

Directorate General of Supplies and Disposals(Vigilance Section)

Dated : the 20th August, 1975.New Delhi

O R D E R

Whereas inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 is being held against:-

(1) Shri N. Umarji, AD(S), DG(S)&D, New Delhi(2) Shri Lalkaka, UDC, DGS&D, New Delhi

And whereas the undersigned considers that a Presenting Officer should be appointed to present the case before the Inquiry Officer.

Now, therefore, the undersigned, in exercise of the powers conferred by Rule 14(4) (c) of the said rules, hereby appoints Shri A.B.C., Commissioner, for Departmental Inquiries, New Delhi as Inquiry Officer to inquire into the charges framed against the said S/Shri N. Umarji and Lalkaka.

Directorate General of Supplies and Disposals

Copy to:-

(1) Shri N. Umarji, Assistant Director (Supplies), DGS&D, New Delhi

(2) Shri Lalkaka, UDC, DGS&D, New Delhi

(3) Shri A.B.C., Commissioner for Departmental Inquiries, Jamnagar House Hutments, New Delhi (Inquiry Officer)

(4) Shri S C Hai, Section Officer, DGS&D, New Delhi (Presenting Officer)

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No. VIG (CS)/15(97)Govt. of India

Directorate General of Supplies and Disposals(Vigilance Section)

Dated : the 20th August, 1975.New Delhi

O R D E R

Whereas inquiry under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rule, 1965 is being held against:-

(1) Shri N. Umarji, Assistant Director (Supplies), DGS&D, New Delhi

(2) Shri Lalkaka, UDC, DGS&D, New Delhi

And whereas the undersigned considers that a Presenting Officer should be appointed to present the case before the Inquiry Officer.

Now, therefore, the undersigned, in exercise of the powers conferred by Rule 14(4) (c) of the said rules, hereby appoints Shri SC Hai, Section Officer, DGS&D, New Delhi as Presenting Officer to present the case in support of the articles of charge framed against the said S/Shri N. Umarji and Lalkaka.

Directorate General of Supplies and Disposals

Copy to:-

(1) Shri N. Umarji, Assistant Director (Supplies), DGS&D, New Delhi

(2) Shri Lalkaka, UDC, DGS&D, New Delhi

(3) Shri S C Hai, Section Officer, DGS&D, New Delhi (Presenting Officer)

(4) Shri A.B.C., Commissioner for Departmental Inquiries, Jamnagar House Hutments, New Delhi (Inquiry Officer)

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F. No. 18/DE/75-CDEGovt. of India

Central Vigilance CommissionJamnagar House Hutments

Akbar RoadNew Delhi

Dated: the 1st September, 1975.

To

1. Shri N. Umarji Asstt. Director (Supplies) DGS&D, New Delhi

2. Shri Lalkaka Upper Division Clerk DGS&D, New Delhi

Subject:- Departmental Inquiry against S/Shri N. Umarji, Asstt. Director and Lalkaka UDC, DGS&D, New Delhi

The Director General of Supplies and Disposals in his order No.VIG/(CS)/15(97) dated 20th August, 1975 has appointed me as the Inquiry Officer under Rule-14 of the CCS (CCA) Rules, 1965 to hold a joint inquiry into the charges framed against Shri N. Umarji, Asstt. Director and Shri Lalkaka, UDC of the DGS & D, New Delhi. The preliminary hearing in the above cited inquiry will be held on Monday the 15th Sept., 1975 at 11.00 hours in my office at Jamnagar House Hutments, Akbar Road, New Delhi, which you are required to attend positively along with your defence assistant, if any. Please note that if your fail to attend, the proceedings will be held ex-parte.

Kindly acknowledge receipt.Commissioner for Departmental Inquiries.

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ToThe Commissioner for Departmental InquiriesJamnagar House Hutments, Akbar RoadNew Delhi

Subject:- Departmental Inquiry against S/Shri N. Umarji, Asstt. Director and Lalkaka UDC, DGS&D, New DelhiRef:- Your letter No.18/DE/75-CDE (MKV) dated 1.9.75

Sir, With reference to the charge-sheet served against me vide DGS&D, Memo No. VIG (CS)/15/(97)/71 dated 28.6.75, I beg to make the following submissions for your kind consideration:-I. I may kindly be permitted to inspect and to take notes from: (a) the documents listed in Annexure-III of the charge-sheet. (b) such other additional documents as I may find to be relevant for pursuing my defence (the relevancy will be explained while asking for the additional documents).II. If necessary, I wish to be assisted during the oral hearings by another

Govt. servant whose particulars will be intimated to you in due course.III. I do not wish to examine myself as a witness (vide Rule 14(17) of the

CCS (CCA) Rules, 1965, but I wish to produce Defence witnesses whose names will be intimated after I have examined the documents. The witnesses will be persons who have vast experience of the purchase procedure and since the charge against me would stand or fall on the proper interpretation of the purchase procedure adopted in the case, the evidence of these Defence Witnesses would be of crucial importance.

IV. Normally, th4e evidence against an accused officer is brought up before a court of Inquiry through Prosecution Witnesses who inter-alia identify the documents also. In the charge-sheet served on me no Prosecution Witnesses have been cited. It is, therefore, not clear how the evidence is going to be brought up before your honour. Who would prove the listed documents? Who would explain the procedure to be followed in the oral inquiry may kindly be explained before the inquiry starts. Perhaps, a Court Witness had better be summoned, who could answer all questions pertaining to purchase.

V. It if is the intention that the Presenting Officer should argue the case straightaway, I would request that this should be postponed till my Defence Witnesses have been examined.

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VI. I reserve the right to submit my written arguments after I have been put in possession of the written brief (arguments) that may be submitted by the presenting Officer.

VII. I deny the charges and am totally innocent. Yours faithfully, Sd/- (Lalkaka) UDC, DGS&D, NewDated: the 15th Sept., 1975

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To

Shri SC HaiSection OfficerPresenting Officer

Sir As directed by Shri ABC, Commissioner for Departmental Inquiry on 15.9.75, I maykindly be allowed to inspect the Documents listed in Annexure-III of the charge-sheet.

Thanking you,

Yours faithfully, Sd/- (Lalkaka) UDC, DGS&D, New DelhiDated: 17.9.1975

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To

Shri SC HaiSection OfficerPresenting Officer

Subject:- Departmental Inquiry against S/Shri B. Umarji, Asstt. Director and Lalkaka UDC, DGS&D, New Delhi

Charge Sheet No. VIG (CS)/15 (97)Sir, As per the directions given during the preliminary hearing held in the CDE office on 15.9.75, I have completed inspection of documents relating to A. T. No.SMH-5/107/45/650/ 16.2.71/PAOD/644 dated 8.3.72.

I request that the file relating to A. T. No. SMH-5/101/45/226/25.6.71/PAOD/565 dated 13.9.71 may kindly be made available to me for inspection as I will be requiring the same as additional document.

Yours faithfully, Sd/- (Lalkaka) UDC, DGS&D, New DelhiDated : the 17th Oct., 1975

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IMMEDIATEF.No.18/DE/75-CDE

Government of IndiaCentral Vigilance CommissionJamnagar House, Akbar Road

New Delhi Dated: 17th Nov., 1975

To

1. Shri N. Umarji Asstt. Director (Supplies) DGS&D, New Delhi

2. Shri Lalkaka Upper Division Clerk DGS&D, New Delhi

Subject:- Departmental Inquiry against S/Shri B. Umarji, Asstt. Director and Lalkaka UDC, DGS&D, New Delhi

The regular hearing in the above cited enquiry will now be held in my office at Jamnagar House Hutments, Akbar Road, New Delhi on the 2nd and 3rd

December 1975, commencing at 11.00 a.m. on the 2nd Dec., 1975. You are required to attend along with your defence assistant, if any. Please note that if your fail to attend, the proceedings will be held ex-parte.

Kindly acknowledge receipt.

(A. B. C.)Commissioner for Departmental Inquiries

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IMMEDIATE

F.No.18/DE/75-CDEGovernment of India

Central Vigilance CommissionJamnagar House, Akbar Road

New Delhi-110 001 Dated: 21st Nov., 1975

To

1. Shri N. Umarji Asstt. Director (Supplies) DGS&D, New Delhi

2. Shri Lalkaka Upper Division Clerk DGS&D, New Delhi

Subject:- Departmental Inquiry against S/Shri B. Umarji, Asstt. Director and Lalkaka UDC, DGS&D, New Delhi

In modification of my letter of even number dated 17th November, 1975, I write to say that the regular hearing in the above cited inquiry will now be held in my office at Jamnagar House Hutments, Akbar Road, New Delhi on the 10th and 11th December 1975, commencing at 11.00 a.m. on the 10th December, 1975. You are required to attend alongwith your defence assistant, if any. Please note that if your fail to attend, the proceedings will be held ex-parte.

Kindly acknowledge receipt.

(A. B. C.)Commissioner for Departmental Inquiries

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PROCEEDINGS HELD IN THE ROOM OF THE INQUIRY OFFICER ON 10.12.1975 IN THE CASE OF INQUIRY AGAINST S/SHRI N. UMARJI,

AD(S) AND LALKAKA, UDC, DGS&D

Case of the Presenting Officer –

The case was based on the documents marked as exhibit P-1, P-2 and P-3. These documents were shown to the defendants and exhibit D-1 was also added to the documents on the request of the defendant (Shri N. Umarji).

The Presenting Officer submitted that the original delivery period in the contract was 31.12.1972. Out of the total quantity of 67 tones on order, the firm had supplied only a quantity of 22.3864 tones by the due letters issued by the Defence Inspectorate at P.45/c as also the letter issued by the firm to the Inspector of Metals, Murad Nagar at P.49/c, the case was reviewed by the AD(S) on 28.4.1973, suggesting that a performance notice may have to be issued to the firm. Accordingly, the matter was referred to the Ministry of Law and the file was received back with the ad vice on 19.5.1973 and consequently the performance notice was issued on 25.5.1973 (P.54/c), calling upon the firm to complete the supplied by 15.7.73. Meanwhile, the firm vide their letter dated 25.4.1973 had asked for re-fixation / extension in delivery period for 10/12 weeks. This letter was not taken note of at the time when the performance notice was issued on 25.5.1973. The firm acknowledged the performance letter vide their letter dated 30.5.1973 (P.59/c), drawing attention to their letter dated 25.4.1973, where they had asked for 10/12 weeks and also accepting extension under protest for the denial clauses.

These two letters viz. 25.4.1973 and that of 30.5.1973 serial numbers 32 and 34 respectively, were put up by the dealing assistant on 23.6.1973 and the case was shown to the Director of Supplied, whose powers the value of the contract attracted. The conclusion of the note of the AD(S) was that no action was necessary at that stage, since the performance notice had already been issued calling upon the firm to supply the stores by 15.7.1973.

The firm again came up for extension of the delivery period in their letter dated 30.7.1973 (P.65/c), which was granted to them with R/R upto 20.10.1973 (pp.67-68/c). However, when the firm could not make further supply, ultimately the contract had to be cancelled. When the Ministry of Law was approached to determine date of breach, they held the view that the date of breach in this case would be 31.12.1972 i.e. the original delivery period given in the acceptance of tender.

Based on the above factual position, the Presenting Officer centralised the whole thing on the issue that had the letter dated 25.4.1973 which was received in the section on 30.4.1973, been brought on file by the dealing assistant at the time when the file was received back, with advice, from the

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Ministry of Law on 19.5.1973, the complexion of case as it stands today, would have been different. It would have enabled the Higher Officers to take note of the request of the firm contained in the said letter. He further maintained that this receipt was post A/t receipt and was the responsibility of the dealing assistant to have brought it on the first available opportunity. In not doing so, he had contravened the instructions according to which the request for extension in delivery period, asked for by the firm should have been put up within 7 days. What had been the material change, if the receipt had been put up in time, being a separate issue, which has been discussed in the foregoing, atleast the dealing assistant could have discharged his duty in the right manner.

The Inquiry Officer adjourned the case for 11.12.1975 at 2.00 p.m. (SC Hai)

Presenting Officer

10.12.1975 - DW—1New Delhi - 12.12.1975

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DEPOSITION OF SHRI R. BANERJI, DEPUTY DIRECTOR, DGS&D, NEW DELHI

Examination-in-Chief

I joined the DGS&D as Assistant Director in 1958. I was promoted as Dy. Director in January, 1975. I am fully conversant with the DGS&D procedure with particular reference to contracts for purchase, extension, cancellations, risk purchase etc. I have been shown the file at Ex. P-1 and the letter of the Supplying Firm dated 25.4.1973 at S No.32 on page 57 therein and I say that the firm’s request for re-fixation or extension of the period of delivery will not be agreed to without including the L/D clause and the denial clause. In the file at Ex. P-1, the performance notice-cum-extension dated 25.5.73 at S. No.31 on P.54 includes the usual L/D and denial clauses. I further say that all letters of extensions, the supplying firm will invariably accept such conditions only under protest, with the result that in case the supplying firms in actual practice do not supply the balance quantity at all, even to the smallest extent, the extension becomes unilateral on the part of the purchaser and the L/D and denial clauses will not be possible to be enforced on the supplier by treating the date of breach will have to be the date for fulfillment of supplied indicated in the original A/T. In case, the party has delivered some quantity during the period of extension, such period of extension will automatically and legally become the date of breach.

In the case of the supplying firm on the file at Ex.P-1, I see that the firm was given extension in the first instance upto 15th of July, 1973 vide S. No.31. The firm was given a second extension upto 20 th Oct., 1973 vide S. No.42. Even thereafter the firm appears to have failed to have made even an iota of supply either in the first extension or in the second extension upto 20th Oct., 1973. I say that since the firm completely failed to offer any supplied either in the first extension or in the second extension, the two extensions given vide S. No.31 and S. No.42 of Ex.P-1became inoperative for enforcement of L/D and Denial clauses, particularly because the firm had accepted the two extensions only under protest. In this connection, I say that the DGS&D office order No.21 dated 1.1.72 states inter-alia :–

“According to the legal advice, an extension letter as issued by the Purchase Officer in the standard form of extension — DGS&D — 166 — can operate only if there is an acceptance, absolute and unqualified, to all the terms and conditions of extension. Such an acceptance can be evidenced either by correspondence, or by conduct, i.e. by making supplied without raising any objection. Mere postal acknowledgement of a letter of extension will not serve the purpose.” (This office order dated 1.1.72 is marked as Ex. D—2)

In view of this office order dated 1.1.72, I say that since the supplying firm in Ex. P-1 did not accept the terms and conditions of extension in an absolute and unqualified manner but only under protest on both occasions of

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grant of extension and further since the firm did not supply even an iota of the contracted balance quantity during the two period of extension pending 20th Oct., 1973, I say that there was no mutually agreed D.P. after 31.12.72, the date of breach, fixed in the original A/T. I say that the firm’s letter dated 25.4.73 S. No.32 in file at Ex. P-1 would not have made any difference in regard to the mutually agreed D. P. in the first extension, even if it were granted for 10-12 weeks as asked for by them, only under protest because of the inclusion of L/D and Denial Clauses in S. No. 31.

The value of the contract in the Ex. P-1 is Rs.4.15 lakhs and therefore, I say that the decision on any points in regard to this contract be taken only at the level of the Director and not at lower levels, like A.D. or D.D. In the years 1972 and 1973, the limit upto which cases could be decided by the Asstt. Director was Rs.50, 000/- only. Of course, this limit can be raised to Rs.75, 000/-. In the circumstances, in cases of type beyond the powers of Asstt. Director as in Ex. P-1, the Asstt. Director concerned can only make suggestions or proposals for the consideration of the higher officers and it is left to the higher officers to accept or reject the suggestions made by the A.D. or pass an entirely fresh alternative order. I am shown the DGS&D office order No. 3(10)/66-O & M dated 31st May, 1966 detailing the respective duties of A.D., Section Officers, Assistants/UDCs, LDCs and Stenographers. I say that the post A/T work assigned to the Assistants/UDCs is also mentioned at item 2 at the top of page-4 of the same O.M. It is also seen from item No.6 on page 4 of the same O.M. that the Assistant/UDC is required to attend to any other item of work arising in the section, or given by the A.D. /S/O. The DGS&D office order No. 3(10)/66—O & M dated 31st May, 1966 is marked as Ex. D-3.

Cross Examination (by Presenting Officer)

Q.1 Please see the firm’s letter dated 25.4.73 at S. No.32 of Ex. P-1. Do you agree that if this letter had been brought on the file before the issue of S. No.31 and before putting up the draft by Shri Lalkaka on 22.5.73 after receipt of the Law Ministry’s advice vide P.0/notes of Ex. P-1 instead of issuing the performance notice carrying D. P. to 15.7.73 with the usual L/D and Denial Clauses, the firm’s request of 25.4.73 for extension of 1-12 weeks could have been considered and the issue of performance notice could have been avoided.

A.1 I agree that if the firm’s letter dated 25.4.73 had been brought on the file immediately on receipt of the Law Ministry’s advice on 19.5.73 and before the draft letter of the performance notice was put up by the Dealing Assistant Shri Lalkaka on 22.5.73, it would have been possible to consider the firm’s request dated 25.4.73 on merits and avoid the issue of performance notice as was done vide S. No.31 dated 22.5.73. Instead of the performance notice vide S. No.31; it would have been possible to issue an ordinary extension letter to the firm but of course embodying the usual L/D and Denial Clauses.

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Q.2 Please see office order No.18 dated 1.1.73 sub-paras (a) (i) therein (marked as Ex.P-4). Do you agree that the firm’s letter dated 25.4.73 vide S. No.32 of Ex. P-1 which was received by the Dealing Assistant, Shri Lalkaka on 2.5.73 should have been put up by him within 4 days of the receipt of that letter as stipulated in the office order dated 1.1.73 instead of 23rd of June, 1973 as was actually done by him on P.10/n. of Ex. P-12.

A.2 I agree that the receipt dated 25.4.73 at S. No.32 should have been put up within the time limit laid down in the office order dated 1.1.73 at Ex. P-4.

Q.3 Please state when the letter dated 25.4.73 at S. No.32 was put up alongwith the firm’s letter 30.5.73 (S. No.34) on the 23rd June, 1973 by the Dealing Assistant on P.10/n of Ex. P-1, was it not possible or necessary to re-examine the D. P. stipulated in the performance notice issued to the firm on 25.5.73 vide S. No.31 in order to ensure that the firm’s request, lost sight of at the earlier stage, was considered in paragraph (a) (1) of the office order No.18 dated 1.1.73 at Ex. P-4?

A.3 There as no alternative but to watch the performance of the firm till 15.7.73, particularly in view of their undertaking, though under protest, in material for inspectin wit the extended delivery period of 15.7.73.

Re-examination (By Shri N. Umarji)

NIL

Re-examination (By Shri Lalkaka)Q.1 Please see your reply to Q. No.1 under cross examination and state

what difference it would have made if the firm’s letter dated 25.4.73 was put up by me on the performance notice on 22.5.73 (P.9/n) in accordance with the Law Ministry’s advice. In particular, please state if it would have made nay difference at all in regard to (a) fixing the D. P. at 15.7.73 and (b) including the L/D and Denial clauses?

A.1 So far as the D. P. is concerned, the delivery period would have been a little longer, say 10-12 weeks instead of 7 weeks as fixed in S. No.31. So far as the L/D and denial Clauses are concerned, it would have made no difference, because such clauses would have been included in any case, even after the consideration of the firm’s request dated 25.4.73.

Q.2 Arising out of your above reply, please state if the complexion of the case would have been altered in any way even if the firm’s letter of 25.4.73 had been taken into account at the appropriate time?

A.2 Since the delivery period would have been extended including the L/D and Denial Clauses, the complexion of the case would not have been altered in any material manner.

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Further Cross-Examination by the Presenting Officer

Q.1 Please see your answer to Q.2 under re-examination. Do you agree that in the present case the complexion had not been changed not because the L/D and Denial Clauses were to be incorporated in the extension letter, irrespective of the firm’s letter of 25.4.73 being taken into account or not but only because the firm failed to supply even an iota of the balance material during the extended D.P. and hence the extension itself was rendered inoperative in the legal sense?

A.1 I agree that in the present case since the firm failed to supply even an iota of the balance material during the extended D.P., the extension became legally ineffective and the complexion did not differ at all, whether the L/D and Denial clauses were included or not.

Further re-examination (by both the defendants)

NIL

Read out the witness in the presence of the two defendants and accepted as correct.

Sd/- Inquiry Officer 12.12.1975

Sd/-R. BanerjeeWitness12.12.75

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REPLIES OF SHRI LALKAKA, DEFENDANT TO QUESTIONS PUT BY THE INQUIRY OFFICER

Q.1 Please explain the reasons why you did not bring the supplying firm’s letter dated 254.73 (S. No.32) to the notice of the Assistant Director and higher officers at the time you submitted the draft performance notice to the firm on 22.5.73 vide P.9/n of the file at Ex. P-1 although the firm’s letter was lying with you from 2nd May, 1973 for disposal?

A.1 When the file reached me on 21.5.73, the decision had already been taken at the Director’s level to issue performance notice on the firm for 45 days with the concurrence of the Law Ministry. I is true that the firm’s letter dated 25.4.73 had reached me much earlier, on 2.5.73 itself, but that letter which was seen by the Assistant Director on 30th

April, 1973 did not carry any directions or instructions that the letter was important or urgent and should be connected when the Law Ministry’s advice was received on the relevant file subsequently. Hence, I did not consider this letter of 25.4.73 as important enough to be connected when I put up the draft. More so, the D.P. was already fixed for them in the usual R.R.

Q.2 whether the receipt at S. No.32 was important or not, since it was the post A/T receipt from the firm, were you not required to put up that receipt in accordance with the office order at Ex. D-3 (item D-3) and Ex. P-4 within 7 days of the receipt atleast on a part file even though the main file was under reference to Law Ministry during the period from 30.4.73 to 18.5.73?

A.2 The two office orders at Ex. D-3 and P-4 no doubt, require the receipt at S. No.32 to be put up in the manner stated above. However, in actual practice it was not possible for me to put up this receipt promptly, because the receipt did not bear any priority marking by the A.D. or any specific instructions from him on the body of the letter itself when he passed on the receipt to me on 30.4.73.

Q.3 Please see S. No.12-23 in the file at Ex. P-1, received by you during the period 16.9.72 to 2.1.73, it will appear that you had put up all these 12 receipts in one lot on 1.2.73 vide top portion of P-3/n of the file. What is your explanation for the inordinate delay in putting up these 12 receipts at the appropriate time even though they were all post A/T receipts and the relevant file Ex. P-1 was also lying with you during this period.

A.3 I did not put up these receipts earlier because they were routine receipts for information only and to be filed without being put up to the A. D. again on the file. In this connection, item No.2 under the heading “Miscellaneous work’ on page 2 of the Office Order is relevant.

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Q.4 As per annexure-I to the charge-sheet do you accept that the purchaser had to incur a loss of Rs.9 lakhs in the risk purchase which could not be recovered from the defaulting firm?

A.4 I say that the purchaser had to pay extra Rs.9 lakhs in repurchase of the balance material which the defaulting firm failed to supply even after two extensions. There was no loss of Rs.9 lakhs as alleged in Annexure-I.

Q.5 I say it to you that apart from the question of loss, the charge of imputation of lack of absolute devotion to duty can be considered against you by reason that you had failed and neglected to put up the firm’s letter dated 25.4.73 (S. No.32 of Ex. P-1) promptly and in time in accordance with the instructions in Ex. P-4 and D-3. What is your explanation for your lapse?

A.5 My only explanation is that the letter dated 25.4.73 of the firm did not carry any instructions from the A.D. to be put up as an important receipt by any specified date.

Q.6 Did the letter at S. No.32 carry any remarks by the A.D. on the body of the letter to the effect that it should be simply filed without being put up (vide instruction No.2 under the heading ‘Miscellaneous work’ at (Ex. D-3).

A.6 No.

Q.7 Please see the letters at Sr. Nos. 12-23 and say if these letters carry any remarks by the A.D. for simply being filed without being put up?

A.7 There is no such indication.

Read out to the defendant in the presence of the P. O. and accepted as correct.

Sd/- A.B.C. Inquiry Officer 12.12.75Sd/-LalkakaDefendant12.12.75New Delhi

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REPLIES OF THE DEFENDANT UMARJI TO QUESTIONS PUT BY THE INQUIRY OFFICER.

Q.1 The firm’s letter at S. No.32 of Ex. P-1 was seen by you on 30.4.73. The file itself was referred to the Ministry of Law only on 30.4.73 after it was seen by your Director on 30.4.73. Did you not consider it important enough to refer to the firm’s letter of 25.4.73 also to the Law Ministry because the suggestion for performance notice had become inappropriate after the receipt of the firm’s request dated 25.4.73. even if you could not withhold the Law Ministry, you could have sent the firm’s letter to the Law Ministry so that a correct view could have been taken, both in regard to the nature of notice to be given to the firm as well as the period of extension. What have you got to say?

A.1 A number of files are referred to the Ministry of Law from time to time, either for issuing performance notice or for considering cancellation and advices regarding further course of action. Similarly, many receipts are received in the Section asking for extension etc. It is, therefore, not practically possible to remember and connect the receipts to those which are being referred to Ministry of Law. Apart from this, the practice is not to refer the receipts relating to the cases already sent to the Ministry of Law earlier, as there are possibilities of the receipts getting lost. In the circumstances, this particular receipt could have been connected on receipt of the file back from Ministry of Law on 19.5.73 by the dealing hand, more so, because I did not given any direction for the letter at S. No.32 to be filed.

Q.2 Do you accept that the purchaser had to incur a loss of Rs.9 lakhs in the re[purchase of the residual quantity not supplied to the defaulting firm?

A.2 No. The reason is even if action was taken on the firm’s letter (S. No.32) it would not have changed the nature of the case. Even in that case valid risk purchase would not have been possible because the firm would have agreed to the extension only under protest and in view of the office order No.21 of 1.1.72 (Ex. P-2) such qualified and conditional acceptance of extensions were ineffective in law.

Q.3 Apart from the question of loss, I put it to you that there was failure and neglect on your part to ensure the receipt at S. No.32 being put up at the appropriate time on return of the file from the Law Ministry so as to enable yourself as well as Dy. Director / Director to take a fresh look at the case and consult the Law Ministry again, more so, because the issue of performance notice was uncalled for when the specific request of the firm was already available in your office and was also duly seen by you on 30.4.73. This involves not only lack of absolute devotion to duty on your part but equally your neglect to ensure devotion to duty of the dealing assistant, Shri Lalkaka who was working under your control and dealing with the case at Ex. P-1 vide Rule 3(i) (ii) 3(2) (i) of the CCS (Conduct) Rules, 1964?

A.3 I have already explained earlier that it is not practically possible to remember and connect all receipts with the cases referred to Law Ministry. The letter at S. No.32 was with the dealing assistant. The file was received back from Ministry of Law on 19.5.73. To avoid delay, I immediately put up that file to the competent authority for approving

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the proposal for issue of performance notice. In terms of the office order, responsibility for putting up the receipt relating to post A/T cases will be that of the dealing hands. If the receipt at S. No. 32 had been connected on 22.5.73, I would have shown the case again to higher authority for action as might have been deemed necessary under the circumstances.

The number of receipts and the files is so large that it is not always possible to ensure that no delay takes place in putting up any particular receipt at the appropriate time.

Read out to the defendant in the presence of the P. O. and accepted as correct.

Sd/- A.B.C.

Inquiry Officer

12.12.1975Sd/-N. UmarjiDefendant12.12.1975

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To

The Commissioner for Departmental InquiriesJamnagar House HutmentsAkbar RoadNEW DELHI

Subject:- Shri N. Umarji, Assistant Director and shri Lalkaka, UDC, DGS&D, Departmental Proceedings against –

Written Brief (arguments) of Shri LalkakaSir,

In accordance with the directions given at the conclusion of the oral bearings in the above cited departmental proceedings, I beg to submit herewith my written arguments showing my total innocence of any misconduct. I wish to mention here that I was entitled to receive a copy of the prosecution arguments before submitting my brief but I have as yet not received these arguments and this has caused me considerable difficulty in drafting my arguments as I have been compelled to guess what the Presenting Officer may have in his mind. Any shortcomings that may be noticed in my arguments are solely due to my being kept in the dark about the prosecution story. I pray that a copy of the Prosecution arguments which must have been received by now may kindly be made available to me to enable me to add a rejoinder, if necessary.

For a better appreciation of the issues, it is necessary to set out briefly the facts of the case which have given birth to the charge-sheet and the joint inquiry under Rule 14 of the CCS (CCA) Rules, 1965 that is to say for the imposition of a major penalty as it was held that failure to take prompt action to deal with a request from the firm concerned for extension of the delivery period to a situation where no damages could be recovered for failure to fulfill the terms of the contract and the Govt. suffered a loss of Rupees nine lakhs (Rs.9,00,000).

The main point to note is that in case where a contracting firm defaults and commits a breach of contract, risk purchase can be made at the cost of the defaulting firm within 6 months from the date of breach. Once this period of limitation of 6 months has crossed, no damages can be collected.

In the present case an A/T dated 4.3.72 was placed on M/s. Saru Smelting Private Ltd., Meerut for supply of 67 tones of Zinc base alloy ingots. The delivery period was stipulated as 31.12.72. After supplying 22.3864 tones within the delivery period, the firm started to default. They sent a letter on the 25th April, 1973 by the Assistant Director who initialed the letter and sent it down to the Section without any comments or priority marking. He did so obviously because in the file, the Inspector of Metals, Muradnagar, had reported that the firm had offered 10 tones of the material for inspection but Inspector Metals had refused to inspect the lot till the question of

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extension of delivery period was settled. The letters written by the Inspector dated 16.2.73 and 17.4.73 had the effect of keeping the contract alive and reference was made to the Ministry of Law on 30.4.73 for future course of action. That Ministry advised on 18.5.73 that as the contract had been kept alive, a notice of performance would have to be issued before considering the question of cancellation of contract. Accordingly, a performance notice was issued to the firm on 25.5.73 calling upon them to complete supplies by 15.7.73, failing which, the outstanding quantity would be cancelled at their risk and cost. This was ensured by including in the performance notice denial clause and reservation of rights to recover liquidated damages. The firm accepted the extension under protest pointing out that in their letter dated 25.4.73 they had asked for extension upto 20.8.73 and that they objected to the levy of Liquidated Damages and denial clauses and reserved their right to claim waiver of the same at a suitable stage. This letter (dated 25.4.73) was put up to officers on 23.6.73 when it was merely noted by all the senior officers and no special attention was paid to the request to grant extension upto 20.8.73 obviously because extension had already been granted upto 15.7.73 in the notice of performance.

Subsequently this extended delivery period was further extended to 20.10.73 and an A/L was issued on 30.7.73 to the firm including once more the R/R and Denial Clauses. This too was accepted under protest by the firm. They did not, however, make the slightest attempt to supply any more material and it became transparent that they had no intention of doing so as they were no more interested in the contract.

The case was now referred to the Ministry of Law on 19.1.74 for advice whether the contract could be cancelled and the outstanding quantity purchased at the risk and cost of the firm treating 20.10.73 (the last extended D/P) as the date of breach. The Ministry of Law now advised that the contract could be cancelled treating 31.12.72, (which was the original mutually agreed D/P in the a/T) as the date of breach. Since the legal opinion was that the date of breach was 31.12.72, there was no question of making risk purchase at the cost of the firm in as much as the period of limitation of 6 months had long been passed. Consequently, the question arose as to who was responsible for this lapse and S/Shri N. Umarji, Assistant Director and I was charge sheeted. So far as I am concerned, two charges are inherent in the statement of imputations accompanying th4e charge sheet. These are:–

(i) Failure to put up a letter from the firm M/s Saru Smelting Ltd. Dated 25.4.73 asking for an extension of the delivery period (fixed in the original A/T for 31.12.72) by 10-12 weeks, which resulted in an issue of a performance notice on 25.5.73 calling upon the firm to complete supplies by 15.7.73, failing which the outstanding quantity would be cancelled at their risk and cost. The performance notice included the normal denial clause and reservation of rights to recover liquidated damages.

It has been argued further that –

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“If immediate reference had been made to the Ministry of Law pointing out the request made by the firm for extension in delivery period in their letter dated 25.4.73, a suitable date of extension in delivery period might have been fixed with the Ministry’s approval and that date would have been taken as the date of breach. The failure on the part of Shri Lalkaka to take prompt action on the letter dated 25.4.73 resulted in loss of Rs.9,00,000/- in risk purchase which could not be recovered from the defaulting firm.”

(ii) Failure to observe the rule that “every govt. servant shall at all times maintain devotion to duty” vide Rule 3(i) (ii) o the CCS (Conduct) Rules, 1964.

IMPUTATION (i) ABOVE –

An Office Order has been produced (Ex. D-2) No.21 dated 1.1.72 which reads as follows:-

“According to the legal advice, an extension letter as issued by the purchase officer in the standard form of extension can operate only if there is an acceptance, absolute and unqualified, to all terms and conditions of extension. Such an acceptance can be evidenced either by correspondence or by conduct i.e. by making supplies without raising any objection. Mere postal acknowledgement of a letter of extension will not serve the purpose.”

In other words, risk purchase can be recovered only when there is a clear and unquestioned acceptance by a firm of their liability for the recovery of L/D for failure to supply the tendered material according to the original condition stipulated in the A/T. In view of this, the sine-quo non effecting recovery of damages in the present case was an unqualified acceptance by the firm of the terms of extension of notice and which they would have never agreed to. As comprehensively established by the defence witness (Shri Banerjee) who is a past master in the sphere of purchase, the failure to put up the letter of 25th April, 1973 had made not the slightest difference to the question of recovery in as much as under the preferred terms of extension under protest because of L/D and denial clauses. This is what he says in his deposition:–

“I say that the firm’s letter dated 25.4.73 would not have made any difference in regard to the mutually agreed D/P in the first extension granted to them on 25.5.73 because the firm would even in that case have accepted the extension even if it were granted for 10-12 weeks (as asked for by them) only under protest because of the inclusion of the L/D and

denial clauses in S. No.31 (extension notice at S. No.31).”

The position was reiterated and confirmed during cross-examination (by the Presenting Officer) as follows:–

“I agree that if the firm’s letter dated 25.4.73 had been brought on the file immediately on

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receipt of the Law Ministry’s advice on 19.5.73, it would have been possible to consider the firm’s request on merits and avoid the issue of performance notice. Instead of the performance notice (vide S. No.31) it would have been possible to issue an ordinary extension letter to the firm. But of course embodying usual L/D and denial clauses”.

Q.1 Since the office order reproduced earlier states unequivocally that legally it is not possible to recover any damages unless the extension is absolute and unqualified and since there was not earthly chance of the firm’s accepting without protest and restrictive L/D and denial clauses (as amply proved by their subsequent conduct vide their letter dated

7.8.873) how could any recovery be made? The loss mentioned in the charge sheet is therefore purely hypothetical

and without any logical basis whatsoever. This was clarified during re-examination of the Defence Witness (Shri Banerjee) by me as follows:–

A.1 So far as the L/D and Denial clauses are concerned, it would have made no difference because such clauses would have been included in any case even after consideration of the firm’s request dated 25.4.73.

Q.2 Arising out of your above reply, please state if the complexion of the case would have been altered in any way even if the firm’s letter of 25.4.73 had been taken into account at the appropriate time?

A.2 “Since the delivery period would have been extended including the L/D and Denial clauses the complexion of the case would not have been altered in any material manner.”

There is thus no question of Government’s suffering loss of Rs.9, 00,000. Such a loss could be contemplated only in the assumption that the firm would have meekly and without protest accepted the notice of extension including the L/D and Denial clauses.

The learned Inquiry Officer himself got this position clarified by a question which he put to my co-accused Shri Umarji as reproduced below:–

Q.2 “Dou you accept that the purchaser have to incur a loss of Rs.9,00,000/- in the re- purchase of the residual quantity not supplied by the defaulting firm?

Ans. No. The reason is even if action was taken on the firm’s letter (S. No.32) it would not have changed the nature of the case. Even in that case valid risk purchase would not have been possible because the firm would have agreed to the extension only under protest and in view of the office order No.21 of 1.1.72 (Ex. P-2) such qualified and conditional acceptance of extensions were ineffective in law.” The very basis of the charge sheet which has been drawn up is thus entirely imaginary and there has been no loss whatsoever.

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IMPUTATION (ii) ABOVE(DELAY)

So far as delay in putting up the crucial letter dated the 25th April, 1973 is concerned, the case against me has been summed up by the Presenting Officer as follows:–

“The Presenting Officer centralised the whole thing on the issue that had the letter dated 25.4.73 which received in the Section on 30.4.73 been brought on the file by the dealing assistant at the time when the file was received back with advice from the Ministry of Law on 19.5.73, the complexion of the case, as it stands, would have been different. It would have enabled the higher officer to take note of the firm contained in the said letter. He further maintained that this was a post A/T receipt and was the responsibility of the dealing assistant to have brought it on the file at the first available opportunity. In not doing so, he had contravened the instructions on the subject according to which the extension in delivery period asked for by a firm should be put up by the dealing assistant within 7 days.”

I would like to point out at the outset a contradiction inherent in the Presenting Officer’s arguments and the formal statement of imputations which inter alia says (para5) as follows:–

“It is seen from the Purchase file that firm’s letter dated 25.4.73 (where they sought for extension by 10-12 weeks) and 30.5.73 (where they objected to extension granted in our letter dated 25.5.73) were put up by the dealing hand on 23.6.73. The AD(S) in his note of the same date stated that –

“no action was necessary in view of the performance notice already given.”

If immediate reference had been made to the Ministry of Law pointing out the request made by the firm for extension of D/P in their letter dated 25.4.73, a suitable date of extension in the delivery period might have been fixed with Law Ministry’s approval and that would have been taken as the date of breach.”

In other words, even at that stage it was open to the senior members of the hierarchy to refer the case to the Ministry of Law, had the AD(S) and other senior officers considered the letter dated 25.4.73 to be of any importance. For the reasons explained in Section-1, the officers did not think so and the letter dated 25.4.73 was regarded quite correctly as routine. The presumption of the Presenting Officer, therefore, that had the letter dated 25.4.73 been put up on the file as soon as it was received back from the Ministry of Law, it would have enabled the higher officers to take note of the request of the firm, is totally belied by the circumstances that when it was actually put up on 23.6.73, no senior officer took a serious note of this letter.

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I submit respectfully and humbly that this provides as clear an evidence as can be of an attempt on the part of the prosecution to pass on the entire responsibility to the lowest official in the ladder who would be defenceless by sheer virtue of this humble station. The only protection that I can see lies in the hands of the learned Inquiry Officer, who, I am encouraged to find, has seen through this game. In him I now put my trust.

The other point made by the Presenting Officer is that under Office Orders dated 1.1.73 and dated 31.5.66; I was under an obligation to put up a post A/T within 7 days. This, I submit, is a distortion caused by bringing two unrelated Office Orders together because Office Order No.18 dated 1.1.73 is a compilation of all the important orders regarding purchase matters relating to Delivery / Grace Period / Downward trend on prices etc. and is addressed to the Purchase officers for whose guidance this is meant. This Office Order is not meant for lower grade staff / considering specially the fact that the Purchase Sections are all either manned by Pilot Officers or Desk Officers.

Office Order dated 31.5.66 does not mention any period or limit of the time at all. It is thus wholly arbitrary to link these two office orders at random and try to draw a strained conclusion throwing the entire blame on the helpless underling viz. the UDC.

Indeed, when a pointed question was put on this issue by the learned Inquiry Officer to the Defence Witness, he replied as follows:–

Q. Do you agree that the firm’s letter dated 25.4.73 should have been put up by him within 7 days of the receipt of that letter as stipulated in the office order dated 1.1.73?

Ans. I agree that the receipt dated 25.4.73 at S. No.32 should have been

put up within the time limit laid down in the office order dated 1.1.73.

It should be carefully noticed that the Defence Witness deliberately avoids saying who should have put up the letter on the file –– the A.D. concerned or the dealing hand. Defence Witness does so because being a purchase officer himself he knows that the primary responsibility is that of the base officer. The following ancillary circumstantial evidence would make the position clearer.

In the penetrating question put to Shri Umarji, A.D.(S), the co-accused, the learned Inquiry Officer asked:–

Q. “The firm’s letter was seen by you on 30.4.73. The file itself was referred to the Ministry of Law only on 30.4.73 after it was seen by your Director on 30.4.73. Did you not consider it important enough to refer the firm’s letter of 25.4.73, also to the Law Ministry because the suggestion for performance notice had become inappropriate notice after the receipt of the firm’s request dated 25.4.73?

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Even if you could not withhold the file from being despatched to the Law Ministry, you could have sent the firm’s letter to the Law Ministry so that a correct view could have been taken both in regard to the nature of notice to be given to the firm as well as the period of extension. What have you got to say?

Ans. A number of files are referred to the Ministry of Law from time to time either for issuing performance notice or for considering cancellation and for advice regarding further course of action. Similarly, a number of receipts are received in the section asking for extension etc.

A : It is, therefore, not practically possible to remember and connect the receipts to those files which are being referred to the Ministry of Law.

B : Apart from this, the practice is not to refer the receipts relating to the cases already sent to the Ministry of Law earlier as there is possibility of the receipt getting lost.

C : In the circumstances, the particular receipt could be connected only on receipt of the file back from Ministry of Law on 19.5.73 by the dealing hand.

D : More so because, I had not given any direction for the letter at S. No.32 to be filed only.”

I offer the following comments on the questions sidelined above:–

‘A’ on page 6 : The firm’s letter was received on 30.4.73 that is to say, on the very day the main file was being sent to the Ministry of Law. Since there is hardly any time lag between the two events, could the connection not be made there and them? Does it not amount to avoiding the real issue raised by the Inquiry Officers question? Memory can fail after a long lapse of time but not when events occur on the same day namely, the 30th April, 1973.

‘B’ on page 6 : It is quite correct that part files are not sent for the reason stated by Shri Umarji. How could I be expected to put up a part file regarding the letter dated 25.473 within 7 days?

‘C’ on page 6 : I did not see the file on its return from Ministry of Law on 19.6.73. It was straightaway put up by Shri Umarji to higher officers and their orders obtained. How then, could I have linked the receipt on 19.5.73? Here again is an attempt to throw the blame on me somehow.

Shri Umarji has gone on to say further:–

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“The file was received back from the Ministry of Law on 19.5.73. To avoid delay I immediately put up the file to the competent authority for approving the proposal for issue of performance notice. In terms of the office order, responsibility for putting up the receipt relating to post A/T cases will be that of the dealing hand.

If the receipt at S. No.32 had been connected on 22.5.73, I would have shown the case again to the higher authority for action as might have been deemed necessary under the circumstances.”

I would only observe that when I did actually put this letter up on 23.6.73, was any concrete proposal or suggestion made by AD (S) to higher officers. The file was then put up saying merely that no action appeared to be necessary. In view of this, to say now that had the letter been put up on 19.5.73, suitable action would have been taken is another illustration showing an attempt to lay the blame on the underdog.

‘D’ on page 6 : “More so, because I had not given any direction for the letter at S. No.32 to be filed only.”

The crux of the entire case lies on this and I am very happy that this has been appreciated by the learned Inquiry Officer, who put a most searching question to me as follows:-

Q.6 Did the letter at S. No.32 carry any remarks by the AD(S) on the bottom of the letter itself to the effect that it should be simply filed without being put up.

Ans. No.

Q.7 Please see the letter at S. No.12-23 and say if the letters carry any remarks by the AD(S) for simply being filed without being put up

Ans. There is no such indication.

This shows conclusively that it was the habit of the AD(S) to initial all routine receipts without making any comments, such comments being reserved only for urgent important receipts. This is entirely in accordance with the instructions in the Manual of Office Procedure witch says (in Chapter IV) inter alia while indicating the duties of the supervisory staff that it is their duty –“to mark receipts to the dealing hands concerned and where necessary indicate urgency grading and give directions regarding line of action.”

It follows, therefore, that where no instructions are given, the receipt is to be regarded as routine. The letter dated 25.4.73 did not have any indication to alert me that it was not a routine receipt. Indeed, being a Pilot Section, the base officers themselves required to deal with all important and complicated receipts according to office order dated 31.5.1966.

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S U M M A R Y

To sum up –

I. Causing a loss of Rs.9, 00,000 to the Government by failure to bring the firm’s request for extension to the notice of officers in time.

I have shown conclusively that this allegation is wrong and that no damages could be collected so long as the firm protested against the levy of the R/R and Denial Clauses in the extensions granted to them. Indeed, ever after 25.4.73, extensions were granted to the firm and they always accepted them under protest. How could damages be recovered?

The entire cause for the misunderstanding arose because –

(i) Firstly, the Inspector of Metals, Muradnagar kept the contract alive by entering into correspondence with the firm after the expiry of the D/P, and

(ii) Secondly, the Ministry of Law first advised the grant of a notice of performance on the understanding that the contract was alive and later on held that the date of breach of contract was 31.12.72 (which is the correct position, as there was no mutually agreed D/P after 31.12.72), the firm having failed to supply any material during the extensions which were all accepted under protest.

By this time, the statutory period of 6 months had passed and no damages could be recovered under any circumstances. The concept that a loss

was caused in thus wholly misconceived.

II Lack of devotion to duty in failing to put up promptly the letter from the firm dated 25.4.73 asking for extension.

The finding on this charge would depend on what answers are found to the following questions:-

(1) Was it or was it not the duty of the AD(S) to indicate a priority marking on this letter dated 25.4.73 when he sent it down to the Section on 30.4.72 –– the very day on which the main file was being sent to the Ministry of Law?

Shri Umarji cannot plead lapse of memory when the two events happened on the same day viz. Receipt of the letter from the firm and reference of the question to the Ministry of Law.

Under the Manual of Office Procedure (Chapter IV) it is incumbent on all superior Officers to indicate priority marking and to give directions on important receipts. This is further borne out by the DGS&D Office Order dated 31.5.66 wherein the

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base officers are required to handle all important receipts themselves. Had Shri Umarji thought the letter dated 25.4.73 to be important, he could not have failed to indicate a priority marking on it. It has, however, been established vide s. No.12 to 23 in the file that it was his habit not to indicate any marking on unimportant receipts. The letter dated 25.4.73 did not bear priority marking showing conclusively that it was not regarded as an important receipt. Indeed, had Shri Umarji thought otherwise, he would not have failed to add it to his file which was –– on that very day –– being sent to the Ministry of Law.

I was thus left with the firm impression that the receipt in question was routine.

(2) Was the main file on its return from the Ministry of Law sent down to the Section to enable the dealing hand to take action?

It was not. In his deposition Shri Umarji clearly stated ––

“The file was received back from the Ministry of Law on 19.5.73. To avoid delay I immediately put up the file to the competent authority for approving the proposal for issue of performance notice.”How could I have dealt with the letter dated 25.4.73 on 19.5.73 when the file never came to me?

(3) Was it possible to open a part file within 7 days of receipt of the letter in question and refer it to the Ministry of Law?

There is no question of opening a part file because of the risk of losing the papers as explained by Shri Umarji in his deposition. This was all the more so in the instant case as the receipt bare no instructions or priority marking.The idea of 7 days has been introduced by bringing together two entirely unrelated Office Orders of which one dated 1.1.73 pertains to Purchase Officers only and the other does not refer to any time limit. Indeed, if this argument of 7 days is conceded, it was all the more the duty of the AD(S) to have given a clear priority marking on the receipt when he sent to down to the Section.That he did not do so, shows that the prosecution argument about 7 days is far-fetched and mischievous.

(4) When the receipt in question was actually put up on 23.6.73, was any serious note taken of it by the senior officers?

It was not. This alone shows that the grant of the notice of performance had met the requirements of the case and that decision did not require any revision. In fact, this has been commented in the statement of imputation (Para 5) as follows:––“If immediate reference had been made to the Ministry of Law pointing out the request made by the firm for extension of D/P in their letter dated 25.4.73, a suitable date of extension in delivery

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period might have been fixed with Law Ministry’s approval and that date would have been taken as the date of breach.”This shows that at no state was the particular receipt regarded as urgent, important or calling for prompt action, by the higher ups.Why now blame the humblest man in the hierarchy who was faced on 22.5.73 with a decision already taken by the senior officers on the file and with the direction to immediately put up a draft?

Prayer As I have repeatedly pointed out that an attempt has been deliberately made by the prosecution to throw all the blame on the lowest and the humblest official in the hierarchy namely UDC who is altogether defenceless. My only strength lies in the learned Inquiry Officer and, as I have said earlier, in him I place my trust. I would only like to mention that I have faced and successfully qualified in a staff competitive test held by the Institute of Secretariat Training and Management for promotion to the grade of Assistant and that my accrual promotion hinges solely on the outcome of this inquiry.

Yours faithfully,

Sd/- LALKAKA,

UDC DGS&D

NEW DELHI

Dated : 29.12.1975

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F. No. 18/DE/75-CDEGovernment of India

Central Vigilance Commission

Sub:- Departmental enquiry against S/Shri N. Umarji Assistant Director (S) and Lalkaka, UDC, DGS&D, New Delhi

REPORT

1. Introduction

The Director General of Supplies & Disposals, in his Order No. VIG(CS)/15(97)/74(II), dated 20th August, 1975 appointed me as the Inquiry Officer, under Rule 14 of the CCS (CCA) Rules, 1965, to hold a joint inquiry against S/Shri N. Umarji, Assistant Director (S) and Lalkaka, UDC, DGS&D, New Delhi. By another order of the same date he nominated Shri SC Hai, Section Officer, DGS&D as the Presenting Officer to present the case in support of the charges. The preliminary hearing was held on the 15th

September, 1975 duly attended by the two charged Officers and the PO. The inspection of documents and the additional documents was completed in November, 1975 and thereafter the regular hearing was taken up and completed in one spell from 10th to 12th December, 1975. Since no witness was cited in Annexure-IV to the charge sheet memorandum, the PO relied on four exhibits P-I to P-4 in presenting the case of disciplinary authority. The two defendants introduced three exhibits D-I to D-3 and one defence witness (DW-I) in support of their defence. At the close of the oral evidence, the PO and the two defendants requested for time to submit their respective cases through final written briefs. The briefs received from them have been placed in the relevant folder below.

2. Charges Framed and Inquired into

The imputations of misconduct against the two defendants arose in connection with their handling the question of grant of extension of delivery period to M/s Saru Smelting Pvt. Ltd., Meerut for supply of Zinc Base Alloy Ingots in April, 1973. The charged framed against Shri N. Umarji, Assistant Director (S) and Shri Lalkaka, UDC vide Annexure-I to the charge sheet memorandum are reproduced below:

(i) Shri N. Umarji, Assistant Director (S)

That said Shri N. Umarji while functioning as Assistant Director (Supplies) during the period 1972-74 committed gross misconduct and failed to maintain devotion to duty while dealing with A/T No.SMH- 5/107 /45/650/16.12.71/PAQD/644 dated 8.3.72 placed on M/s Saru Smelting Private Ltd., Meerut for supply of 67.00 tones of Zinc Base Alloy Ingots in as much as he failed to take prompt and timely action on firm’s letter dated

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25.4.73 which resulted in loss of rupees Nine Lakhs to Government in the risk purchase which could not be recovered from the defaulting firm.

2. Shri Umarji thus failed to exercise reasonable care in the discharge of his official duties and thereby contravened Rule 3(i) (ii) of CCS (Conduct) Rules, 1964. rendered himself liable to disciplinary action under CCS (CCA), Rules, 1965.

(ii) Shri Lalkaka, UDC

That said Shri Lalkaka while functioning as Upper Division Clerk during the period 1972-74 committed gross misconduct and failed to maintain devotion to duty while dealing with A/T No.SMH-/107 /45/650 /16.12.71 /PAQD/644 dated 8.3.72 placed on M/s Saru Smelting Private Ltd., Meerut for supply of 67.00 tones of Zinc Base Alloy Ingots in as much as he failed to take prompt and timely action on firm’s letter dated 25.4.73 which resulted in loss of rupees Nine Lakhs in the risk purchase which could not be recovered from defaulting firm.

2. Shri Lalkaka has thus failed to exercise reasonable care in the discharge of his official duties and thereby contravened Rule 3(i) (ii) of CCS (Conduct) Rules, 1964. He has, therefore, rendered himself liable to disciplinary action under CCS (CCA) Rules, 1965.

3. Facts and Documents Admitted

The broad facts of the case relating to the placement of a contract on 8.3.72 on M/s Saru Smelting Private Ltd., Meerut for the supply of 67.00 tones of Zinc Base Alloy Ingots in the stipulated date namely 31.12.72, the firm’s failure to supply the balance inspite of two extensions in 1973 leading to the eventual cancellation of the contract and the repurchase in 1974, as brought out in Annexure-II have been admitted by the two defendants. The documentary exhibits P-1 to P-4 and Exhibits D-1 to D-3 were also admitted by both sides. The DGS&D have issued orders from time to time in regard to the procedure to be followed for the grant of extension in the delivery period. The extracts from two office orders namely No.21 dated 1.1.72 and No.18 dated 1.1.73 which are relevant to the present case have been obtained from the PO and placed in the exhibits folder vide Ext. D-2 and Ext. P-4 respectively. Similarly, office order No.3(10)/66-O&M dated 31.5.66 outlining the duties at the Assistant Directors/Section Officers, Assistants / UDCs etc. level is also pertinent to this inquiry and a copy of the same has been placed at Ext. D-3.

4. Case of Disciplinary Authority

The Presenting Officer has argued the case in support of the charges in his two notes dated 10.12.75 and 23.12.75 respectively (Pages q to 2 of the deposition folder and the first page in the folder of written briefs). He has proceeded more or less on the same lines as Annexure-II. He has also sought to rely on the evidence of DW-1 particularly vide answers to question

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1 and 2 on page 9 of the deposition folder that he did not consider the supplying firm’s letter dated 25.4.73 (S. No.32 of Ext. P-1) asking for extension of 10 to 12 weeks as important enough to be connected at the time of draft performance notice put up by him on 22.5.73 (Page 9/ante of Ext. P-1). Shri Lalkaka has also conceded that he did not put up the firm’s letter within the prescribed time of 7 days. The imputations of lack of devotion of duty on the part of Shri Lalkaka is, therefore, quite evident. In regard to Shri N. Umarji also, he neglected to connect the firm’s request dated 25.4.73 at the appropriate time nor had he ensured timely submission of the receipt according to the prescribed instructions by his subordinate Shri Lalkaka.

As a result of their combined negligence, the extension of DP was allowed to the firm on 25.5.73 (S. No.32 of Ex. P-1) because the extension of DP upto 15.5.73 fell short of their demand for 10/12 weeks. Eventually the firm failed to make any further supplied either during the first extension or second extension given to them upto 20.10.73. Since the DP became legally the original DP in the contract, consequently the recovery of extra expenditure on risk purchase of the unsupplied balances could not be effected from M/s Saru Smelting Private Ltd., Meerut since the repurchase could not be effected with the admissible period of six months from the date of breach i.e., 31.12.72. The extra expenditure involved in repurchase was of the order or 9 lakhs which is sholly attributable to the negligence on the part of the two charged officers to consider the defaulting firm’s letter dated 25.4.73 promptly and with devotion. In the circumstances the charge of contravention or Rule 3(1) (ii) of CCS (Conduct) Rules by the two charged officers is thoroughly established.

5. Defence arguments of the two charged officers

The two charged officers Shri N. Umarji and Shri Lalkaka have submitted their respective cases through their written briefs placed in the relevant folder below. Their defence plea is briefly smmarised below:––

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(a) Shri N. Umarji’s defence

The evidence of DW-1 will clearly show that the extension of DP will always be accompanied by the L/D and Denial Clauses which the defaulting firm will invariably accept under protest. Extension of time meets the request of the firm fully. Consequently, it will not be possible to enforce risk purchase on the supplier by treating the date of breach as extended DP will have no legal sanction as per office order at Exts. P-4 and DW-2. DW-I has stated that firm’s letter dated 25.4.73 would not have made any difference whatsoever in regard to the mutually agreed DP in the first extension granted to them on 25.5.73 because the firm would in any case have accepted the extension of DP even by 10-12 weeks as demanded by them only under protest because of the inclusion of the L/D and Denial Clauses. In other words, the failure to connect the firm’s letter dated 25.4.73 at the time of issue of the performance notice on 25.5.73 was absolutely immaterial in regard to the consequences following from the failure of the supplying firm to make any supplied at all either in the first extension upto 15.5.73 or the second extension upto 20.10.73. The Law Ministry’s advice fixing the date of breach as 31.12.72 only should not be related to the firm’s letter dated 25.4.73 but to the non-supply of any stocks during the extended DP even though accepted by the firm under protest. It is true that extra expenditure was involved in repurchase of the unsupplied balance but this cannot be attributed to the negligence of the defendant. Shri Umarji has also pointed out that he had to deal with hundreds of receipts every month as Officer-in-Charge of the Section and it was not physically possible for him to remember the firm’s letter dated 25.4.73 and connect it promptly. This was the responsibility of the dealing UDC Shri Lalkaka in terms of the order dated 31.5.66 (Ext. D-3). Even at the time this letter was put up by Shri Lalkaka on 23.6.73 was duly approved by the competent authority namely Director of Supplies. Since the Director did not suggest any other course of action, the blame for the consequences, if any, has to be taken by the higher officers and not by the Assistant Director. In fact, his note dated 23.6.73 was more or less identical to a similar case in respect of the same defaulting firm where extension of DP was allowed upto 15.4.75 (vide notes on page 36 of the file at Ext. D-I). It would not, therefore, be proper or reasonable to charge Shri Umarji with lack of devotion of duty.

(b) Shri Lalkaka UDC

Shri Lalkaka has emphasised the following points in his defence ––

(i) After expiry of DP on 31.12.72, the Inspector of Metals had kept the contract alive by corresponding with the defaulting firm after that date. On this basis, the Ministry of Law had agreed to the issue of performance notice and since the firm eventually

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failed to supply any further quantity inspite of two extensions upto 20.10.73, the extended DP became inoperative in the eyes of law, more so, since the firm had accepted the extension under protest, in regard to the L/D and Denial Clauses. In the meanwhile the statutory limit of six months beyond the date of breach 31.12.72 had expired and there was no question of repurchase at the risk and cost of the defaulting firm. The concept that loss was involved in repurchase was therefore not valid.

(ii) The letter dated 25.4.1973 could not be put up by him when the file at Ext. P-1 was received back from the Law Ministry on 19.5.73 because the Assistant Director himself dealt with the file straight away and obtained the orders of the Director for issue of performance notice. In view of the decision already taken to allow extension of DP upto 15.7.73, the usual draft in the prescribed form was put up by Shri Lalkaka and issued on 25.5.73. If the firm’s letter dated 25.4.73 was important enough, the Assistant Director should have made some remarks on that letter for being put up on return of the file from the Law Ministry. When the letter was actually put up by Shri Lalkaka on 23.6.73, the decision even at Director’s level was that no further action was called for. In the circumstances, it is unreasonable to argue that Shri Lalkaka’s failure to connect firm’s letter at appropriate stage led to adverse consequences. In any case, DW-1 has already stated that the letter dated 25.4.73 would not have made any material difference since a defaulting firm will invariably accept the DP only under protest on grounds of inclusion of L/D and Denial Clauses.

(iii) It is true that the office order at Ext. P-4 as well as Ext. D-3 required all post A/T cases to be put up by the dealing assistant to the Assistant Director within 7 days. In the present case, the main file Ext. P-1 was under reference to the Law Ministry from 30.4.73 to 18.5.73 and in the absence of any specific directions on the body of the letter from the Assistant Director, it was not possible for Shri Lalkaka to put up that single letter on a part file. These receipts were of a routine nature and meant to be added to the file on receipt in the Section. The two office orders at Ext. P-4 and D-3 are entirely distinct and different in contents and it would not be proper to co-relate them to justify the charge against the defendant.

To sum up, there was no negligence at all on the part of the defendant.

6. Assessment of Evidence, both Oral and Documentary and the Inquiry Officer’s findings on the points regarding determination.

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From an assessment of the evidence, both documentary and oral, the following points emerge:––

(i) Extension of the date of delivery period involves changing the terms of the original contract and, therefore, such an extension will be valid in a legal sense only if the contractor or supplying firm accepts all the terms and conditions of such extensions in an unqualified manner. In case the acceptance of the extension is only conditional, the extended DP will be treated as unilateral and not as mutually agreed DP. It has come out from the deposition of DW-I that all letters of extension of DP are issued invariably including the L/D and Denial Clauses to enable Government to effect repurchase at the risk and cost of the defaulter within the admissible period. Equally, the inclusion of L/D and Denial Clauses will never be accepted by the parties without protest, with the result that in reality there will be no mutually agreed DP. Nevertheless, if during such extensions where there is no mutually agreed DP, the contractor delivers some supplied, the extended DP, the date of breach will not be the extended DP but only the date fixed in the original contract. In the present case under inquiry, the DP in the original contract was 31.12.72. First extension was given upto 15.7.73 (short of the firm’s request upto 20.8.73) and the second extension upto 20.10.73 which was a little longer than the firm’s demand. On both the occasions, the l/D and Denial Clauses were included and therefore, the supplying firm accepted the extensions only under protest. The firm was also careful enough not to deliver any supply at all during the two extensions and in sequel; there was no mutually agreed DP after 31.12.72, the date of breach fixed in the original contract. From the legal angle, the date of breach could be taken as only 31.12.72 and not 20.10.73. The Law Ministry’s advice on this point is quite emphatic vide their notes dated 24.1.74, 5.2.74 and 7.2.75 on pages 17 and 18 of Ext. P-1 and page 47 of Ext. P-2. There was thus no question of enforcing the repurchase at the risk and cost of supplier because the admissible period of 6 months had elapsed on 30.6.73 while the decision to go in for repurchase could be taken only in February, 1974, after DGS&D had failed in their efforts to persuade the supplier of the indenting department, namely the General Manager, Ordnance Factory, Katni, who was pressing for risk purchase in view of urgent requirement of the balance supplies for defence components. It is seen from the noting on page 45 of Ext. P-2 that there was an unprecedented rise in the prices of raw material required for manufacture of non-ferrous stores and therefore, the repurchase of about 44.6 tones of Zinc Base Alloy Ingots involved an extra expenditure of Rs.9 lakhs. The DGS&D was fully aware of the legal advice that the date of breach for enforcement of risk purchase would be only 31.12.72 and not 20.10.73 and hence the recovery of the extra expenditure of Rs.9 lakhs from the defaulting firm was totally ruled out. At the same time, repurchase at hither price could not be avoided because the Indentor was pressing hard for the supplies. In this situation, the extra expenditure was inevitable and the ir-recoverability on this extra expenditure from the defaulting firm owing to legal

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infirmity could not be treated as loss to Government. When the firm failed to supply any quantity upto 31.12.72, the DGS&D could have restored to repurchase immediately (instead of much later in 1974 when the market prices of raw materials had registered an inordinate increase) so that the extra expenditure involved in purchase could have been reduced to the minimum possible level instead of the high figure of Rs.9 lakhs.

In any case, in my view, the concept of loss arising out of repurchase is itself based on inaccurate and improper appreciation of the circumstances of the case. Accordingly, the responsibility for this imaginary loss could not be placed on the two defendants.

(ii) The Presenting Officer contended that if only prompt and timely action had been taken on the defaulting firm’s letter on 25.4.73 (S. No.32 of Ext. P-1) on receipt of the Law Ministry’s advice on 19.5.73, a suitable date of extension in the delivery period could have been fixed in consonance with the firm’s demand for 10-12 weeks. In actual practice, the first extension granted to the firm upto 15.7.73 fell short of the firm’s demand for DP upto 20.8.73 with the result that the firm accepted the DP upto 15.7.73 under protest. Even after receiving the firm’s conditional acceptance dated 30.5.73, the defendants failed to re-examine the feasibility of modifying the extended date of delivery as required by the firm but had only suggested that no action was necessary in view of the performance notice-cum-extension already issued on 25.5.73. If only the DP had been suitably modified, it would have been possible to arrive at a mutually agreed extension of date which could be enforced on the defaulting firm. In contrast to the PO’s contention, the evidence of DW-I is quire emphatic that the firm’s letter dated 25.4.73 would not have made any material difference at all from a legal angle because the firm would have in any case accepted the extension only under protest by reason of inclusion of L/D and Denial Clauses. In view of the circulars at Exts. P-4 and D-2, even a mutually agreed DP, if accepted under protest in respect of inclusion of L/d and Denial Clauses will not be legally binding on the second extension granted to the firm at the latter’s specific request. The firm wanted further extension from 8 to 10 weeks only in their letter of 13.7.73 but the DGS&D was generous enough in his letter of 30.7.73, in fixing the extended delivery date as 20.10.73, in excess of the DP of 10 weeks asked for by the firm. Despite this, the firm had accepted the second extension only under protest on the score of the L/D and Denial Clauses. In other words, it is not possible for me to accept the argument that re-fixation of the date of delivery instruct consonance with the period of time required by the firm will be of any avail because the firm accepts such mutually agreed extension under protest on grounds of L/D and Denial Clauses. In view of this position, even if the letters dated 25.4.73 and 30.5.73 of the firm had been examined by the defendants at the appropriate stage in consultation with t he Law Ministry and suitable extension of date of delivery in accordance with the firm’s demand had been re-fixed and allowed, it

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would have made no difference whatsoever because of the inclusion of the L/d and Denial Clauses which t he firm would never accept without protest, thereby creating legal void. The defaulting firm was cunning enough to ensure that no supply was effected either in the first or even the second extension, with a view to clued legal action.

To conclude, I agree with DW-1 and reject the contention of the Presenting Officer.

(iii) As regards, the point whether the defendants failed to deal with the firm’s letter dated 25.4.73 with devotion, at the appropriate stage, the office order at Ext. P-4 and D-3 do require the dealing UDC to put up all post at receipt for extension in delivery period within seven days of the receipt of such letters. At the same time Ext. P-4 contemplates exceptions where the request for extension of D/P requires relevance to the indentor or other authorities in which event final reply could be issued to the firm within 7 days of the receipt of advice from the indentor or the other concerned authority. In the instant case the firm’s letter dated 25.4.73 was seen by the Assistant Director, Shri N. Umarji on 30.4.73 and received by Shri Lalkaka, UDC on 2.5.73 (s. No.32 of Ext. P-1). This receipt should have been put by the UDC, Shri Lalkaka within a week from 2.5.73. However, the relevant file (Ext. P-1) on the subject of extension of date was already under submission by Shri Lalkaka to Assistant Director(S) on 25.4.73 and the Assistant Director in turn had submitted the case on 28.4.73 to Deputy Director / Director from whom the file had gone direct to the Law Ministry on 30.4.73. The file was received back by the Assistant Director, Shri Umarji on 19.5.73 and submitted direct to the Deputy Director and Director for approval of further action as agreed to by the Law Ministry. The file was received back by Shri Lalkaka on 22.5.73. In this sequence of events, it was not possible for Shri Lalkaka to deal with the letter dated 25.4.73 of the firm within a week of its receipt on 2.5.73 in the absence of file and pending Law Ministry’s advice. He could have and should have connected this letter while putting up the draft performance notice-cum-extension letter on 22.5.73. His failure t do so, however, did not make any material difference as brought out by the deposition of DW-1 because the firm would in any case have accepted the extension letters only under protest for inclusion of L/D and Denial Clauses. Nevertheless, this failure shows lack of absolute devotion to duty on the part of Shri Lalkaka. At the same time there is some force in his contention that since the Assistant Director did not mark the receipt as important or urgent with specific instruction on the body of the letter itself on 30.4.73, he considered it as a routine receipt, for the simple reason that the question of extension of DP had already been referred to the Law Ministry for advice prior to receipt of the firm’s request dated 25.4.73. Even so, the Assistant Director had not given any instructions on the body of the letter dated 25.4.73, that it should be treated as a routine receipt and filed. It will be observed from Shri Lalkaka’s reply to question No.3 on page 10 of the deposition folder that a large number of post A/T receipts were dealt with by him

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only after considerable delay. This would only expose his negligence in putting up the post A/T receipts. The same apathy is attributable to Shri N. Umarji, Assistant Director, though he had pleaded that he could not remember and connect each and every receipt since the number of receipts received by him was quite considerable and it was the duty of the dealing hand, namely Shri Lalkaka to put up all post A/T receipts in a prompt and timely manner as required under office orders at Ext. P-4 and DW-3. While this may be so, the fact remains that he failed to exercise proper supervision on his subordinate Shri Lalkaka to obviate delay in dealing with post A/T receipts. There are, however, certain extenuating features which go to mitigate the defendants as emphasised in the previous two sub-paras (i) and (ii). Moreover, it is to be noted that when the letter of the defaulting firm dated 25.4.73 was actually put up to their superior officers, namely the Deputy Director and Director of Supplies, they simply concurred with the line of action suggested by the defendant Shri N. Umarji. The failure of the superior officers, namely the Deputy Director and Director to call for a careful re-examination of the firm’s request should only serve to enforce the defence plea that the blame should not be placed on their shoulders.

The lapse is a collective one committed by the whole hierarchy of officers including the Director of Supplies who was the appropriate officer competent to take a decision in regard to this contract. In this view of the matter, it will be only proper if the wider responsibility for failure on the part of the two defendants is placed at the door of the Director of Supplies who in view of his superior status and powers was expected to exercise effective and real scrutiny on the problems placed before him.

7. Finding of the Inquiry Officer on the charge framed against the two defendants. In the light of the assessment of the evidence and determination of the points made in the previous paragraph, my finding is that two defendants could have displayed greater devotion to duty in dealing with the post A/T letters of the defaulting firm M/s Saru Smelting Private Ltd., Meerut. Nevertheless, they could not be held responsible for the extra expenditure pf Rs.9 lakhs involved in the repurchase of the balance of Zinc Base Alloy Ingots not supplied by the defaulting firm. In the result, the change against the two defendants, vide Annexure-I, as extracted in paragraph 2 on page 2 ante, has not been established.

Sd/- (A. B. C.)

INQUIRY OFFICER 19.1.1976New DelhiDated : 19.1.1976

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F. No. VIG (CS) 16 (97)Government of India

Directorate General of Supplies & DisposalsDated : New Delhi the

24th March, 1976ORDER

Whereas deiciplinary proceedings under Rule-14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 were instituted against Shri Lalkaka, Upper Division Clerk, DGS&D, in regard to the charges framed against him vide memorandum No. VIG (CS)/15 (97) dated 28 th June, 1975.

2. Whereas Shri ABC, Commissioner for Departmental Enquiries, who was appointed as Inquiry Officer to inquire into the charges framed against the said Shri Lalkaka has submitted his report (copy enclosed).

3. Whereas after taking into consideration the record of inquiry and having regard to all the facts and circumstances of the case, the undersigned in satisfied that the findings of the Inquiry Officer are not acceptable for the reasons given in the Annexure attached to this order and that good and sufficient reasons exist for imposing a penalty of ‘Censure’ on Shri Lalkaka.

4. Now, therefore, the undersigned accordingly orders that the penalry of ‘Censure” should be imposed on Shri Lalkaka.

5. Shri Lalkaka is informed accordingly.

Director (Administration)

Shri LalkakaUpper Division ClerkDES&D, New Delhi

ANNXURE

One of the articles of charge framed against Shri Lalkaka, UDC, DGS&D, New Delhi was that while functioning as Upper Division Clerk during the period 1972-74, he committed gross misconduct and failed to maintain devotion to duty while dealing with A/T No.SMH-5/107/ 45/ 650/16-12-71/PAOD/644 dated 8.3.72 placed on M/s Saru Smelting Pvt. Ltd., Meerut for supply of 67.00 tones of Zinc Base Alloy Ingots in as much as he failed to take prompt and timely action on firm’s letter dated 25.4.73, which resulted in loss or Rupees Nine Lakhs in the risk purchase which could not be recovered from the defaulting firm.

Shri Lalkaka has stated before the Inquiry Officer that he took the firm’s letter dated 25.4.73 as of routine nature, because if it was considered important, the Assistant Director should have made some remarks on the letter when it was seen by him at the Dak stage. It is difficult to subscribe to

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this contention of Shri Lalkaka that in the absence of any advice at the Dak stage, cases could be taken as un-important and delayed and dealt with casually by the Dealing Assistant, Shri Lalkaka has thus failed to maintain devotion to duty by not putting up the letter dated 25.4.73 till 23.6.73 even when the file became available on return from the Ministry of Law and was dealt with by him on 22.5.73. There is no doubt that this lapse did not contribute at least indirectly to the huge loss.

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