Manual Of Disciplinary Proceedings Kerala Pdfl
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Manual Of Disciplinary Proceedings Kerala Pdfl
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Article 311 provides two procedural safeguards to the civil servants in relation to their tenure of office. These are:- A) No removal or dismissal by an authority subordinate to the appointing authority. B) No removal or dismissal or reduction in rank, except after an inquiry affording reasonable opportunity of hearing. However, as is said by Lord Acton that power corrupts and absolute power corrupts absolutely, many a times, some Govt. Servants start misusing their official power and position. They start shirking work, do not do their work as per rules and orders and indulge in other kinds of misconduct. Therefore, in order to discipline them and to control them, the concept of departmental proceedings is provided in the service rules. The departmental proceedings against a public servant has to go through various steps such as: 1. Lodging of complaint or making allegations of misconduct against the Govt. Servant. 2. Holding of Preliminary Inquiry. 3. Consideration of the report of the Preliminary Inquiry by the disciplinary authority. 4. Show cause notice to the delinquent official who is prima facie held responsible in the Preliminary Inquiry. 5. Replying of the employee to the Show Cause Notice. 6. Issuance of Charge-sheet to the delinquent official, if reply is considered unsatisfactory by the disciplinary authority. 7. Replying of the employee to the charge-sheet. 8. Scrutiny of the reply by the disciplinary authority. 9. Appointment of Enquiry Officer i.e. order for regular inquiry and nomination of Presenting Officer. 10. Legal assistance for defence. 11. Attendance and examination of witnesses. 12. Submission of Inquiry report by the enquiry officer. 13. Show Cause Notice to the delinquent employee 14. Submission of reply and Consideration of past records of the delinquent official 15. Penalty Proposed. 16. Final order. 17. Service Appeal, if any. The procedure to be followed in disciplinary proceedings is generally laid down in Service Rules and Standing Orders made there under. However, the procedure, so laid down, is subordinated to the provisions of the Constitution of India i.e. any rule can not be ultra-vires the provisions of the Constitution, e.g. Article 310,311 etc. Although the provisions of the Indian Evidence Act,1872, do not apply to the departmental proceedings but the principal of natural justice has to be followed. Thus, reasonable opportunity to defend himself must be given to the person against whom departmental proceedings have been initiated. It is also to note that acquittal in criminal proceedings on the same set of charges, per se, does not entitle the delinquent to claim immunity from disciplinary proceedings, as observed by the Supreme Court in case C.M.D.U.C.O. Vs P.C. Kakkar, AIR 2003 SC 1571.In the same way, departmental proceedings may be continued even after retirement of the employee. (U.P.S.S. Corp.Ltd. Vs K.S.Tandon, AIR 2008 SC 1235) The detailed analysis of various steps of the departmental proceedings is provided as under:- (1)Lodging of a complaint: The departmental proceedings against a Government servant starts with the lodging of a complaint with the disciplinary authority. On the receipt of a complaint, it is open to the disciplinary authority to hold preliminary inquiry to ascertain the prima facie truth in the allegations. The complaint may be made by an ordinary citizen or superior officer of the employee.
After the conclusion of preliminary inquiry, a brief record of the proceedings should be prepared in writing. The inquiry should conclude into a report which should contain the findings as to whether there seems to be some substance in all or some of the allegations and to what extent a particular employee is responsible. After examining the report, the disciplinary authority should decide as to whether a prima facie case exists for the initiation of regular departmental inquiry or not. It is to be noted that while ordering preliminary inquiry, the disciplinary authority should not dictate to the inquiry officer the name of the official against whom preliminary inquiry is contemplated because it would adversely jeopardize the defense of the official concerned. In case State of U .P. Vs C.S. Sharma, AIR 1968 SC 158, the disciplinary authority wrote to the inquiry officer to conduct an inquiry but also wrote that he was sure that the delinquent was guilty. Such expression of opinion by the disciplinary authority was held to vitiate the whole inquiry proceedings.
When a Govt. official is held prima facie responsible for misconduct in the preliminary inquiry report, then show cause notice is issued by the disciplinary authority asking him to submit his reply as to why further proceedings be not initiated against him. In the show cause notice the delinquent is required to be informed that he is prima facie held responsible for the professional misconduct/lapse.
If the reply to the show cause notice is considered as unsatisfactory by the disciplinary authority, then formal departmental proceedings are initiated against the Govt. servant starting from issuing charge-sheet to him. The grounds on which it is proposed to initiate the formal departmental proceedings should be reduced to the form of definite charge or charges. The charges should be communicated in writing to the delinquent in the form of a charge sheet. The expression ''Charge-sheet" is borrowed from criminal law. It refers to the written and formal intimation to the delinquent, about the alleged misconduct so that he has full knowledge of the acts or conduct, he is accused of. It is a document containing the allegations of misconduct, called the ''Charge", leveled against the employee concerned. There is no specific or prescribed form in for issuing the charge-sheet. Generally, it is in the form of a letter or notice. Requisites of a Valid Charge:- In a disciplinary proceedings, the charge sheet is very important. It should be framed with great care and competence. A faulty charge-sheet may invalidate the whole proceedings. The requisites of a valid charge or charge sheet are the following: (a) The Charge should not be vague:- The charge must be specific, particular and precise. The vagueness of a charge vitiates the inquiry proceedings. It is not easy to define the term vagueness. If the ground is incapable of being understood nor defined with sufficient certainty, it can be called vague. It would be vague if it does not give any indication of charges against the employee. If the charges are imprecise or indefinite, the person charged would not be able to understand them and defend himself effectively. (b) The language of the charge -sheet should be simple and impartial:- The language of the charge-sheet should be simple and clearly understandable to the employee. (c) The charge should give full details of the incident:- All the material relating to the charges must be brought along with the charge-sheet. The delinquent employee should be provided with all material relating to the charges to give him a reasonable opportunity to defend himself, examine and cross-examine witnesses. (d) The charge-sheet should contain a statement of allegations on which each charge is based. (e) The charge should be based either on breach of the conduct rules framed from time to time or on good and sufficient reason:- It is for the disciplinary authority to decide as to what constitutes good and sufficient reason.It may include incompetence, inefficiency, insubordination, infidelity, neglect of duty, absence from duty, conduct unbecoming of a public servant etc." (g) The manner of writing the charge-sheet should not be such as to indicate pre-judged conclusion of the guilt which might make the whole inquiry proceedings an empty formality:-If there is an actuated motive of the employer to punish and it is ostensible or smelled from the charge-sheet, it is malafide and is liable to be quashed. The charge-sheet is merely a description of misconduct alleged or reported and not proved against the employee which requires proof of evidence and inquiry. By no means it should show that the disciplinary has already reached a conclusion. (h)The concerned employee must be given a reasonably sufficient time to explain the charges. (i) To ensure that the delinquent is given an opportunity to give an explanation to defend himself, it is obligatory on the part of the disciplinary authority to furnish the delinquent not only with a copy of charge-sheet but also the grounds on which those charges were based and the circumstances in which it was proposed to take action against him. Furnishing of a copy of the preliminary inquiry report along with the charge-sheet would not be necessary in each case. However, if reliance is placed upon that report, a copy of the same has to be given to the delinquent failing which he would be prejudiced in defending himself. (Capt. I.S.Bawa Vs State of Punjab, 1996(5) SLR (P&H) 387) (j) Service of charge-sheet:- The charge-sheet should be served within a reasonable time. However mere delay in serving the charge-sheet would not invalidate the inquiry proceedings unless the same has resulted in prejudice to the delinquent. However, if the charge-sheet has been served beyond the period of limitation, it is liable to be quashed. The Charge-sheet may be served personally, by post or through the press. However, the usual mode of service of a charge-sheet, in case of a departmental inquiries is by personal service. It should be handed over to the employee concerned and its receipt be obtained from him. If he refuses to give receipt, an endorsement to that effect be made on it, in the presence of at least two witnesses. If the employee is able to establish that no charge-sheet was served upon him, the entire disciplinary proceedings would become invalid. Therefore, there should be sufficient material on record to show the service of the charge-sheet on the employee concerned. In order to enable the employee concerned to prepare his explanation, it is obligatory on the part of the disciplinary authority to allow the official concerned to inspect the official record, documents and take copies thereof. He must, on a request made by him, in that behalf, be supplied with the copies of the statements of the witnesses, recorded during the preliminary inquiry, particularly, if those witnesses are proposed to be examined at departmental trial.( State of U.P. Vs Shatrughan Lal, AIR 1998, SC 3038). If the reliance is placed upon the preliminary inquiry report, a copy of the same has to be given to the delinquent, failing which he would be prejudiced in defending himself. However, furnishing of a copy of the preliminary inquiry report along with the charge-sheet would not be necessary in every case, particularly when it is not to be the foundation of the proceedings. (V.K. Nigam Vs State of M.P., AIR 1997 SC 1358). The disciplinary authority may refuse to allow inspection of such records or the taking of such extracts as are not relevant for the purpose of the inquiry or are not to be used against the delinquent. However, the provisions of Indian Evidence Act,1872, do not apply to departmental inquiries.