Presentation Made at Institute of Public Administration Bangalore in Aug. 2008

7/28/2019 Presentation Made at Institute of Public Administration Bangalore in Aug. 2008

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HOW TO CONDUCT A

DEPARTMENTAL INQUIRY

By R.K. Sharma,Dy. Secretary (Retd.), GOI

E-mails: [email protected]


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Organisation of the Presentation

Examination of complaints

Preliminary Enquiry/Investigation

Drafting and issue of charge-sheet Memo.

Minor penalty proceedings

Major penalty proceedings

Inquiry proceedings

Consultation with CVC/UPSC

Order imposing penalty or exonerating the COunder the CCS (CCA) Rules, 1965

Departmental proceedings under the Pension Rules


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EXAMINATION OF

COMPLAINTSSources of complaint:-(1) A colleague or jealous/inimical colleague or

acquaintance or any other person,

(2) Complaint received through M.P./MLA,

(3) Complaint received through CVC or CBI,

(4) Acts of omission and/or commission on the part of theGovt. servant concerned referred to Vig./Disc. Cell byby Estt./Admn. Branch. For example, irregularities inLTC/TA claim, submission of false caste certificate,penalty imposed by Chief Information Commissioner,report of arrest of a Govt. servant in a criminal case

or his conviction by a court of law, etc.


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(Contd.)

Sources of complaint:-(4) Complaint of sexual harassment

(5) Complaint of discrimination, etc. by a member

of SC/ST category.

(6) Acts of omission and/or commission reported in

an Audit Report,(7) Anonymous/pseudonymous complaint, etc.


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(Contd.)

No cognizance to be taken ofanonymous/pseudonymous complaintsCVCs instructions

Identification of acts of misconduct/lapses alleged in the complaint


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PRELIMINARY

ENQUIRY/INVESTIGATION Departmental investigation by Vigilance Section or

Disc. Section or by an officer to be designated for the

purpose

Reference to an outside agency for investigation

such as the CBI, police, etc.

Consideration of the issue of suspension of the

employee in case of acts of moral turpitude, financial

scandal, criminal offence, etc.


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(Contd.)

To avoid unnecessary harassment to the officials,against whom frivolous complaints are received atthe time of their promotion/selection, the CVC, videits circular dated 31.8.2004 addressed to the CVOs

of all PSUs/PSBs, has decided that:

(a)As a rule, complaints/cases which are more than 5 years oldand no action has been taken till then, should not beinvestigated. However, the limit of 5 years will not apply to casesof fraud and other criminal offences; and

(b)No cognizance should be taken of any complaint which isreceived 6 months prior to the initiation of selection process forsenior posts.


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Drafting and issue of

charge-sheet Memo. CVC to be consulted wherever necessary for

their 1st stage advice

Charges to be definite and specific, and notgeneral, vague or non-specific

Format for minor or major penaltyproceedings is given in the CCS (CCA)

Rules, 1965 An act reflecting on integrity will normally

warrant major penalty proceedings.


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(from pre-page)

Articles of Charge, Statements of Imputations ofMisconduct, List of Documents and List of Witnessesto be drawn up carefully for major penalty action.

Minor penalty charge-sheet Memo. to be issued withStatement of Imputations of Misconduct only.

Original documents to be collected as evidence as faras possible and kept safely in Vig./Disc. Cell.

Charge-sheet Memo. to be signed by the competentdisciplinary authority himself/herself or by anauthorized officer under the rules/regulations wherethe President/Central Government is the DisciplinaryAuthority


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(Contd.)

WARNING, REPRIMAND,ADVISORY, ETC.Two types of warnings:-

(1)Non-recordable A copy of it is not

placed in the ACR dossier.(3)Recordable A copy of it is placed in

the ACR dossier.


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(Contd.)

VIGILANCE CLEARANCEThe Government have issued revisedguidelines for issuing vigilance clearance,videDepartment of Personnel and TrainingsO.M. dated 14.12.2007 (copy is availableunder the heading, Conduct/DisciplineRules on the website, dtf.in.


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(Contd.)

Penalties enumerated in Rule 11Minor Penalties:-

(i) Censure; (ii) Withholding of promotion; (iii)recovery from pay of the whole or part of anypecuniary loss caused by him to the Government bynegligence or breach of orders; (iii a) Reduction to a

lower stage in the time scale of pay by one stage fora period of not exceeding three years, withoutcumulative effect and not adversely affecting thepension; (iv) Withholding of increments of pay.


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(Contd.)Major Penalties:-

(v) Save as provided for in clause (iii) (a), lower stage in the timescale of pay for a specific period, with further directions as towhether or not the Government servant will earn increments ofpay during the period of such reduction and whether on the expiryof such period, the reduction will or will not have the effect ofpostponing the future increments of pay;

(vi) Reduction to lower time-scale of pay, grade, post of servicewhich shall ordinarily be a bar to the promotion of theGovernment servant to the time-scale of pay, grade, post or

service from which he was reduced, with or without furtherdirections regarding conditions of restoration to the grade, or postor service from the Government servant was reduced and hisseniority and pay on such restoration to that grade, post orservice;


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(Contd.)

(vii) Compulsory retirement;(viii) Removal from service; and,(ix) Dismissal from service.


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Rule 16Minor penalty

proceedings

Copies of the documents to be provided

to the charged official on request for

preparing his/her reply/statement ofdefence

Provision for holding full-fledged inquiry

under Rule 16 of the CCS (CCA) Rules Speaking Order to be passed by the

competent disciplinary authority


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Rule 14 Major penalty

proceedings

Copies of the listed documents to be provided to thecharged officer for preparing his/her reply/writtenstatement of defence. Repeated requests for extension of time forsubmitting reply may not be considered. Issue of common proceedings or simultaneousproceedings is also to be considered. On denial of charges, Inquiry Officer and PresentingOfficer are to be appointed.


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Inquiry proceedings

(Preliminary Hearing)- Admission/denial of charges by the CO before the IO. Upondenial, regular oral inquiry will be conducted by the IO.- The CO to be provided an opportunity to engage a DefenceAssistant to assist him in the inquiry.- IO will fix date and time for inspection of the listed documents,normally in the office of the PO. IO will give opportunity to theCO to submit a list of additional documents and a list of defence

witnesses, indicating relevancy to the charges.- After completion of inspection of documents, all the prosecution

and defence documents will be taken on record by the InquiryOfficer and each document will be assigned an Exhibit No.


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(Contd.)

Specimen of document taken on record

Ex.P.1

Signature of IO with date

Ex.D.1

Signature of IO with date


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Regular Hearings (RHs)

Recording of daily order sheet by the IO Recording of evidence Depositions of witnesses-- Examination-in-Chief

-- Cross-examination

-- Re-examination

-- Further cross-examination

-- Further re-examination-- Questions, if any, by the IO

-- Questionssimple and leading

-- Copies of depositions to be provided to CO/PO


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(Contd.)

* Submission of Statement of Defence by the CO on conclusionof the prosecution case

* Defence to adduce evidence on its behalf by way ofexamination of defence witnesses and documents

* After examination of all witnesses, the IO will giveopportunity to the CO to appear as a witness in his owncase or his/her general examination would be conduced bythe IO. (no cross-examination by IO).

* Questions by IO to the CO as witness.

* IO will direct the PO/CO to submit Briefs within such time asmay be specified by him

* Thereafter, IO will write his report and submit it to theDisciplinary Authority.


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(Contd.)

POs Brief

Defence Brief

Inquiry Officers Report

- Background, details about hearings, witnesses, etc.,- Prosecution case

- Defence case

- Analysis of evidence

- Findings


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CONSULTATION WITH THE

CVC/UPSCl Obtaining the advice of CVC

First Stage before issuing charge-sheet

Memo.Second Stage after IOs Report is

available

Reference can be made for reconsideration

ofCVCs advice, in suitable cases.UPSC to be consulted before imposition ofpenalty, wherever necessary.


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EX PARTEINQUIRY

REASONABLE OPPORTUNITY

NATURAL JUSTICE

BURDEN OF PROOF

PREPONDERANCE OF PROBABILITIES


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Order imposing penalty or

exonerating the CO The Disciplinary Authority would consider the natureof charges, facts and circumstances of the case,evidence on record, Brief of PO and submissions of

the CO with regard to findings of the IO. The penalty has to be commensurate with the gravityof the misconduct. The CO to be exonerated, ifcharges are held not proved. A speaking order imposing the penalty to be issuedunder the signatures of the Disciplinary Authority


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DOPTs O.M. dated 1.8.2007 Simultaneous

action of prosecution and initiation of

departmental proceedings

In serious cases involving offencessuch as bribery/corruption, etc., actionshould be launched for prosecution as amatter of course.Disciplinary proceedings the question is whetherthe respondent is guilty of such conduct as wouldmerit his removal from service or a lesserpunishment, as the case may be.Criminal proceedings the question is whether theoffences registered against the Govt. servant areestablished and if established, what sentence can beimposed on him.


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(Contd.)

In serious nature of cases like acceptance ofillegal gratification, the desirability ofcontinuing the concerned Govt. servant inservice in spite of the serious chargeslevelled against him may have to beconsidered by the Competent Authority toproceed with departmental action. If the charge in the criminal case is of a gravenature which involves complicated questionsof law and fact, it would be desirable to staythe departmental .. .. ..


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(Contd.)

proceedings till the conclusion of the criminal case. Ifthe criminal case does not proceed and its disposal isbeing unduly delayed, the departmental proceedings,even if they were kept pending on account of thependency of the criminal case, can be resumed andproceeded with so as to conclude them at an earlydate, so that if the employee is found not guilty, hishonour may be vindicated and in case he is foundguilty, the administration may get rid of him at theearliest, if the case so warrants.


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(Contd.)

Quoting the Apex Courts judgment, DOPThas clarified that stay of disciplinaryproceedings is not a must in every case,where there is a criminal trial on the verysame charges and the concerned authoritymay decide on proceeding with thedepartmental proceedings after taking intoconsideration the facts and circumstances ofeach case and the guidelines given by theHonble Supreme Court.


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Departmental proceedings

under the Pension Rules Rule 8 Pension subject to future goodconduct Rule 9 (i) Event or transaction within 4years before the institution ofdepartmental proceedings will attractaction under the Pension Rules;(ii) Sanction of the President necessaryfor proceedings under the PensionRules


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