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The Central Civil Services (Classification, Control & Appeal) Rules, 1965

RULE 14. PROCEDURE FOR IMPOSING MAJOR PENALTIES:

Government of India Decisions

(1) Instructions to avoid procedural delays in the disposal discipline cases:-

There have been repeated references in Parliament and in Parliamentary Committees to the delays in the disposal of departmental proceedings against delinquent Government servants, and to cases in which on technical and procedural grounds, the accused persons ultimately escape the punishment they deserve. The general impression is that the prescribed procedure is too elaborate and requires to be replaced by something more simple and summary.

2. After careful consideration the Ministry of Home Affairs have come to the conclusion that this impression is not wholly justified. The procedure prescribed in Rule 14 of the CCS (CCA) Rules is applicable only to cases in which the charges are so serious as to call for one of the major punishments, i.e., Dismissal, Removal or Reduction in the rank etc. (A mere summary procedure is already available for less serious cases). The provisions of Rule 14 ibid are merely designed to ensure compliance, with a salutary principle of justice and public policy which has also been incorporated in Article 311 of the Constitution of India viz., that no man should be condemned or punished without a reasonable opportunity to defend himself. The prescribed procedure therefore requires that the accused officer should be told in the form of written charges exactly what he is alleged to have done and on what evidence, oral or documentary, the allegations are based that he should have an opportunity to inspect the documentary evidence, to test the oral evidence by cross-examination and to furnish such evidence as he may wish to adduce in his own defence. If, as a result of the inquiry, it is decided that the officer should be dismissed, removed or reduced in rank, he has to be given a further opportunity to show cause, if any, against the actual punishment propose. Anything less than this would amount to denial of the reasonable opportunity which is guaranteed by Article 311.

3. There is, however, nothing in these minimum requirements which must necessarily lead to unduly protected proceedings or to a failure, to secure just punishment to the guilty. The officer conducting a departmental inquiry has to hold the balance even between the interest of the State and the avoidance of injustice to the accused. He is free to take a responsible, reasonable and prudent view of the facts and the circumstances of the case and is not bound by the rigid limitations regarding the admissibility of evidence and the degree of proof applicable to prosecution before Criminal Courts. Provided the inquiry officer gives the necessary time and effort, confines his attention to the main points at the issue and firmly resists any attempt by the accused officer to introduce irrelevancies or to adopt deliberate dilatory tactics-there is no reason why satisfactory expedition in disposal should not be achieved in all cases without departing from the prescribed procedure.

4. The various factors which may contribute to undue delays and faulty disposal are:-

(i) Officer conducting the departmental inquiries may be so preoccupied with other duties that they can only spare a few hours at a time at long intervals for the inquiry itself.

(ii) Unfamiliarity with the procedure or inadequate appreciation of the difference between a departmental inquiry and a trial in a Criminal Court, may lead to over-elaboration, or lack of firmness in dealing with dilatory tactics.

(iii) Avoidable delay may sometimes occur at the stage when the inquiry officer has submitted his report and the appropriate authorities have to make up their minds whether the findings are to be accepted and if so what the punishment should be.

(iv) Where, under the rules, consultation with the Union Public Service Commission is necessary some undue delay may occur in making the reference to the Commission and in the consideration of the case by that body.

5. As regards the factors mentioned in (i) and (ii) above Ministry of Home Affairs have considered the feasibility of setting up separate Administrative Tribunals for inquiring into the more important departmental proceedings. Although such bodies have worked satisfactorily in the State of Uttar Pradesh and Madras, it is felt that Central Government Machinery is so vast and widely scattered that a similar experiment will hardly justify the expenditure incurred. In case of extreme complexity or importance it will always be open to Government to set special committees of enquiry or to have recourse to the Public Servants Enquiry Act, 1850. For all other departmental inquiries the delay caused by excessive pre-occupation or unfamiliarity with the procedure could be easily avoided by adopting the following measures:-

(i) In each Ministry or Department a specified officer or officers of appropriate rank shall be nominated and ear-marked for the purpose of conducting all the departmental inquiries arising within that Ministry/Department.

(ii) As soon as occasion arises for taking up such an inquiry the nominated officer will be relieved of his normal duties to such extent as may be necessary to enable him to devote full and careful attention to the completion of the inquiries and the submission of his report. During this time the work of which the officer is relieved may be distributed amongst other officers.

(iii) The nominated officers should familiarize themselves with the rules and essential procedural requirements and appreciate the difference between Departmental inquiries and trials in the Criminal Courts. The maintenance of close personal contact with the Ministry of Home Affairs will enable them quickly to resolve any doubts or difficulties which may arise.

6. As regards the causes of delay mentioned in (iii) and (iv) of para 4 much improvement will be effected if, (a) it is impressed upon all concerned that both public interest as well as humanitarian considerations demand that no avoidable delay should occur in the disposal of disciplinary case; and (b) and failure to give such cases due priority is itself regarded as a dereliction of duty and suitably dealt with.

[MHA OM No. 39/40/52-Est., dated the 4th October, 1952]

(2) Pay Commission’s recommendations regarding disciplinary proceedings and Government’s order thereon:-

In chapter LI of their report the Pay Commission have made the following recommendations regarding disciplinary proceedings:-

(i) All memorials etc. as well as appeals which come to the Central Government against imposition of major penalties, should be disposed of only in consultation with the Public Service Commission.

(ii) The power to withhold appeals, memorials or petitions under prescribed circumstances should be exercised by an authority higher than the one which has passed the orders against which the appeal etc., is made.

(iii) A disciplinary enquiry should not be conducted by the immediate superior of the Government servant being proceeded against or by an officer at whose instance the inquiry was initiated.

These recommendations have been carefully examined by Government and the conclusions reached are contained in the following paragraphs.

2. The Government of India note that the Pay Commission have observed that the information available with them does not at all suggest that disciplinary action is taken in far too many cases or that major penalties imposed too freely or that appeals and memorials are dealt with perfunctorily. It is considered that the acceptance of recommendation at (i) above would considerably increase the work of the Union Public Service Commission. It may also lead to delays in completing disciplinary cases, which would neither be in the interest of public service nor in that of the individual Government servant. It has, therefore, been decided not to make any change in the existing procedure.

3. As regards recommendation under (ii), the instructions contained in MHA OM No. 40/5/50-Ests.(B), dated 8th September, 1954 lay down the procedure for submission of petitions, memorials etc., to the President. In these instructions the power to withhold petitions etc. has been granted only to high authorities like the Secretaries to the Government and the Head of Departments. An appeal can be withheld only under prescribed circumstances; the appellant is required to be informed of the fact and the reasons for withholding the appeal are required to be communicated to the appellate authority and quarterly return giving the list of withheld appeals has to be submitted to the appellate authority. These are sufficient safeguards against unjustified withholding of appeals.

It is considered that these instructions and rules do not require any modification. The authorities dealing with petitions, memorials and appeals are, however, expected to apply the instructions and rules in a liberal spirit and they should ordinarily refrain from withholding any appeal, representation, petition or memorial except in rare cases where the justification for contrary action may be obvious.

4. As regards recommendation (iii), it is obviously desirable that only disinterested officers should be appointed as Inquiry Officers in departmental proceedings. There is no bar to the immediate superior officer holding an inquiry but, as a rule, the person who undertakes this task should not be suspected of any bias in such cases. The authorities concerned should bear this in mind before an Inquiry Officer is appointed in a disciplinary case.

[MHA OM No. F.6(26)/60-Ests.(A) dated the 16th February, 1961]

(3) Supply of copies of documents to the delinquent official:-

A question often arises whether a particular document or set of documents asked for by a Government servant involved in a departmental inquiry should be made available to him or not; and pending the decision of the question the submission of the written statement by the Government servant concerned is delayed, in some cases for months. In view of this and also of the judgement pronounced by the Supreme Court in Raizada Trilok Nath Vs. the Union of India in which it has been decided that failure to furnish copies of documents such as the First Information Report and statements recorded during investigation amounts to a violation of Article 311 (2) of the Constitution, the whole question of the extent of access to official records to which a Government servant is entitled under sub-rule 4 of Rule 5 of the All India Services (Discipline & Appeal) Rules or sub-rule 3 of Rule 15 of the Central civil Services (Classification, Control and Appeal) Rules has been examined in consultation with the Ministry of Law.

2. The right of access to official records is not unlimited and it is open to the Government to deny such access if in its opinion such records are not relevant to the case, or it is not desirable in the public interest to allow such access. The power to refuse access to official records should, however, be very sparingly exercised. The question of relevancy should be looked at from the point of view of the defence and if there is any possible line of defence to which the document may, in some way be relevant though the relevance is not clear to the disciplinary authority at the time that the request is made, the request for access should not be rejected. The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer. Cases of the latter type are likely to be very few and normally occasion for refusal of access on the ground that it is not in public interest should not arise if the document is intended to be used in proof of the charge and if it is proposed to produce such a document before the Inquiry Officer, if an enquiry comes to be held. It has to be remembered that serious difficulties arise when the Courts do not accept as correct the refusal by the disciplinary authority, of access to documents. In any case, where it is decided to refuse access, reasons for refusal should be cogent and substantial and should invariable be recorded in writing.

3. Government servants involved in departmental enquiries often ask for access to and or supply of copies of:

(1) documents to which reference has been made in the statement of allegations;

(2) documents and records not so referred to in the statement of allegations but which the Government servant concerned considers are relevant for the purposes of his defence;

(3) statement of witnesses recorded in the course of –

(a) a preliminary enquiry conducted by the department; or

(b) investigation made by the Police;

(4) reports submitted to Government or other competent authority including the disciplinary authority, by an officer appointed to hold a preliminary inquiry to ascertain facts;

(5) reports submitted to Government or other competent authority including the disciplinary authority, by the Police after investigation.

4. A list of the documents which are proposed to be relied upon to prove the charge and the facts stated in the statement of allegations should be drawn up at the time of framing the charge. This will incidentally reduce the delay that usually occurs between the service of the charge-sheet and the submission of the written statement. The list should normally include documents like the First Information Report if there is one on record. Anonymous and pseudonymous complaints on the basis of which inquiries were started need not be included in the list. The list so prepared should be supplied to the officers either alongwith the charge-sheet or as soon thereafter as possible. The officer should be permitted access to the documents mentioned in the list if he so desires.

5. If the officer requests for any official records other than those included in the list, the request should ordinarily be acceded to in the light of what has been stated in para 2 above.

6. While there is no doubt that the Government servant should be given access to various official records like documents to which reference has been made in the statement of allegations and documents and records which the Government servant concerned considers are relevant for the purposes of his defence though the relevancy is not clear to the disciplinary authority, doubts very often arise whether official records include the documents mentioned at item 4 and 5 in para 3 above. Reports made after a preliminary enquiry, or the report made by the Police after investigation, other than those referred to in clause (a) of Sub- Section 1 of Section 173 of the Code of Criminal Procedure, 1898, are usually Confidential and intended only to satisfy the competent authority whether further action in the nature of a regular departmental inquiry or any other action is called for. These reports are not usually made use of or considered in the inquiry. Ordinarily even a reference to what is contained in these reports is not made in the statement of allegation. It is not necessary to give access to the Government servant to these reports. (It is necessary to strictly avoid any reference to such reports in the statement of allegations as, if any reference is made, it would not be possible to deny access to these reports; and giving of such access to these reports will not be in public interest for the reasons stated above).

7. The only remaining point is whether access should be given to the statements of witnesses recorded in the course of a preliminary enquiry conducted by the department or investigation made by the Police and if so, whether the access should be given to the statements of all witnesses or to the statements of only those witnesses who are proposed to be examined in proof of the charges or of the facts stated in the statement of allegations. These statements can be used only for the purposes of cross-examination and the Government servant is called upon to discredit only those witnesses whose statements are proposed to be relied upon in proof of the charges or of the facts stated in the statement of allegations.

As such the Government servant concerned need not be given access to the statements of all witnesses examined in the preliminary enquiry or investigation made by the Police and access should be given to the statements of only those witnesses who are proposed to be examined in proof of the charges or the facts stated in the statement of allegations. In some cases, the Government servant may require copies of the statements of some witnesses on which no reliance is proposed to be placed by the disciplinary authority on the ground that he proposes to examine such witnesses on his side and that he requires the previous statement to corroborate the testimony of such witnesses before the inquiring authority. Previous statements made by a person examined as a witness is not admissible for the purposes of corroboration and access to such statements can safely be denied. However, the law recognizes that if the former statement was made at or about the time when the fact took place and the person is called to give evidence about such fact in any proceedings, the previous statement can be used for purposes of corroboration. In such cases, it will be necessary to give access to the previous statement.

8. The further point is the stage at which the Government servant should be permitted to have access to the statements of witnesses proposed to be relied upon in proof of the charges or of the facts stated in the statements of allegation. As stated earlier, the copies of the statements of the witnesses can be used only for the purpose of cross-examination and, therefore, the demand for copies must be made when witnesses are called for examination at the oral enquiry. If such a request is not made, the inference would be that the copies were not needed for that purpose. The copies cannot be used at any subsequent stage as those statements are not to be taken into consideration by the disciplinary authority also. Copies should be made available within a reasonable time before the witnesses are examined. It would be strictly legal to refuse access to the copies of the statements prior to the evidence stage in the departmental enquiry. However, if the Government servant makes a request for supply of copies of statements referred to at (3) of para 3 above before he files a written statement, the request shall be acceded to.

9. Neither sub-rule (4) of Rule 5 of All India Services (Discipline and Appeal) Rules nor sub-rule (3) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules provide for supply of copies of documents. Therefore, it is not ordinarily necessary to supply copies of the various documents and it would be sufficient if the Government servant is given such access as is permitted under the rules referred to above. Government servants involved in departmental proceedings when permitted to have access to official records sometimes seek permission to take photostat copies thereof. Such permission should not normally be given, especially if the officer proposes to make the photostat copies through a private photographer as thereby third parties would be allowed to have access to official records which is not desirable. If, however, the documents of which photostat copies are sought for are so vitally relevant to the case (e.g., where the proof of the charge depends upon the proof of the handwriting or a document the authenticity of which is disputed), the Government should itself make photostat copies and supply the same to the Government servant. In cases which are not of this or similar type (the example given above is only illustrative and not exhaustive), it would be sufficient if the Government servant is permitted to inspect the official records and take extract therefrom as is provided for in sub-rule (3) of Rule 15 of the Central Civil Services (Classification, Control and Appeal) Rules. Sub-rule (4) of Rule 5 of the All India Services (Discipline and Appeal) Rules does not specifically provide for the Government servant taking extract from official records. The practice, however, is that officers governed by the All India Services (Discipline and Appeal) Rules do take such extracts from records. This practice should be continued and no restriction should be placed on such officials from taking extracts from official records.

[MHA OM No. 30/5/61-AVD dated the 25th August, 1961]

(4) Examination of witnesses on behalf of the accused official:-

The Government servant who has been permitted to assist the accused official should be permitted to examine cross-examine and re-examine witnesses and make submissions before the Inquiry Officer on behalf of the accused official, if the accused official makes a request in writing in this behalf.

[MHA OM No. 6/26/60-Ests. Dated the 8th June, 1962]

(5) Prosecution or departmental action according to seriousness of the offence:-

Prosecution should be general rule in all those cases which are found fit to be sent to Court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. In such cases, departmental action should not precede prosecution. In other cases involving less serious offences or involving malpractices of a departmental nature, departmental action only should be taken and the question of prosecution should generally not arise. Whenever, however, there is unresolved difference of opinion between the Central Bureau of Investigation and the administrative authority concerned as to whether prosecution in court or departmental action should be resorted to in the first instance the matter should be referred to the Central Vigilance Commission for advice.

[MHA OM No. 39/8/64-Ests.(A) dated the 4th September, 1964]

(6) Measures to prevent tampering with records/documents during inspection by delinquent officials:-

A delinquent official, against whom disciplinary proceedings are pending under CCS (CCA) Rules, is entitled to the inspection of records/documents etc. having a bearing on the case. On requisition by the disciplinary authority, the CBI has to hand over the documents to him for purposes of perusal and inspection by the delinquent official. Recently instances have come to notice where the accused officers while inspecting the records/documents, tampered with materially vital documents. In other case, the accused officer tempered with the documents when the Inquiry Officer temporarily left the inquiry room during the course of the inquiry.

In order to obviate recurrence of such incidents Ministries/Departments are requested to consider the desirability of issuing instructions to the following effect:-

(i) that the accused officer should be allowed inspection of records/documents, etc. only in the presence of a responsible officer; and

(ii) that the inquiry officer should take sufficient precautions to ensure that the records/documents and other papers are not tampered with while the documents are under their custody or during the course of actual inquiry.

[MHA OM No. 242/96/65-AVD dated the 27th September, 1965, addressed to the Vigilance Officers of all Ministries/Departments]

(7) Assisting Government servants:-

Rule 14 (8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides that the Government servant against whom disciplinary proceedings have been initiated may take the assistance of any other Government servant to present the case on his behalf. While no permission is needed by the official who is charge sheeted to secure the assistance of any other Government servant, it is necessary for the latter to obtain the permission of his controlling authority to absent himself from office in order to assist the accused Government servant during the enquiry. It would avoid delay in granting such permission, if the Inquiry Officers take the initiative in the matter of informing the controlling authority in this regard. It is, therefore, suggested that as soon as an 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 should intimate this fact to the controlling authority of the 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 enquiry, the Inquiry Officer, the accused official and the Government servant chosen for assisting the accused official may be advised well in time.

2. It is requested that necessary action may please be taken to ensure that all Inquiry Officers follow the procedure outlined above. A copy of the circular is also being endorsed to the Commissioners for Departmental Enquiries.

[CVC Letter No. 61/3/67-C dated the 8th January, 1968]

(8) Cross-examination by or on behalf of the Government servant after the presenting officer has re-examined the witness –

Clarification regarding:- Under sub-rule (14) of Rule 14 of the CCS (CCA) Rules, 1965, the witness produced by or on behalf of the disciplinary authority in a disciplinary proceeding shall be examined by or on behalf of the presenting officer and may be cross-examined by or on behalf of the Government servant, and the presenting officer would also be entitled to re-examine the witnesses on any point on which they have been cross-examined but not on any new matter without the leave of the inquiring authority. Doubts have been expressed in some quarters if cross-examination by or on behalf of the Government servant could be allowed after the presenting officer has re-examined the witness. It is hereby clarified that if re-examination by the presenting officer is followed on any new matter not already covered by the earlier examination/cross-examination, a cross-examination on such new matters, covered by the re-examination may also be allowed to meet the ends of nature justice.

[Cabinet Sectt. (Department of Personnel) Memo. No. 7/11/70-Estt. (A) dated the 24th September, 1970]

(9) Conduct of enquiries against delinquent officers by gazetted officers/senior officers:-

The Committee on Sub-ordinate Legislation (Fourth Lok Sabha) have recently examined the question of inquiry officers to conduct oral inquiry into the charges levelled against delinquent officers under CCS (CCA) Rules, 1965. The Committee has observed that though they agree that it may not be possible to entrust always inquiries against delinquent officers to gazetted officers the inquiries should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into as inquiry by a junior officer cannot command confidence which it deserves.

[Cabinet Sectt. (Department of Personnel) Memo No. 7/1/70-Estts. (A) dated the 6th January, 1971]

(10) Appointment of Inquiring Authority:-

One of the items considered by the National Council set up under the scheme of Joint Consultation and Compulsory Arbitration in its meeting held in September, 1970 was a proposal of the Staff Side that the disciplinary inquiry should, as a rule, be conducted by a person who should be free from all influences, official or otherwise, of the disciplinary authority. It was further suggested that the rules should be amended suitably so that departmental inquiries are invariably conducted by a person belonging to another Department. As a result of subsequent discussions in the National Council, a Committee of the Council was set up to consider the matter in all its aspects. In the Committee the Staff Side urged that it was necessary in a departmental inquiry to ensure that the proceedings were conducted in an objective manner and that the requirement of natural justice would be watered down if the inquiry is held by the disciplinary authority itself or is entrusted to an Inquiry Officer who is subordinate to, or is under the direct influence of the disciplinary authority. According to them departmental inquiries should invariably be entrusted to an independent and impartial body or tribunal and that considerations of the expenditure involved in providing such an independent forum should not be the prime factor in the dispensation of justice. Alternatively, the Inquiry Officer should invariably belong to a Wing/Office/Department different from the one to which the alleged delinquent employee belongs.

2. As regards the point raised by the Staff Side that the Departmental Inquiry should be entrusted to an independent impartial body or tribunal, it was clarified that inquiries in disciplinary proceedings against gazetted officers of all grades involving lack of integrity or an element of vigilance are alone entrusted to Commissioner for Departmental Inquiries under the Central Vigilance Commission and other cases of disciplinary proceedings involving purely administrative or technical lapses, are not referred to the said Commissioner. It was also not possible to entrust the departmental inquiries against non-gazetted employees to the Commissioner for Departmental Inquiries in view of the very large number of disciplinary cases of such employees coming up every year. It was further pointed out that the existing instructions contained in Ministry of Home Affairs (now Department of Personnel) OM No. 6/26/60-Ests. (A) dated 16th February, 1961 already emphasise the desirability of only disinterested officers being appointed as Inquiry Officers in departmental proceedings. It is also provided therein that while there is no bar to the immediate superior officer holding an inquiry, as a rule, persons who undertake this task should not be suspected of any bias in such cases and that the authorities concerned should bear this in mind before an Inquiry Officer is appointed in a disciplinary case.

3. A suggestion was made by the Staff Side that where a representation by the delinquent official against the appointment of a particular Inquiry Officer on grounds of bias, is rejected by the Disciplinary Authority, it should be open to the delinquent official, to prefer an appeal to the appellate authority. It was pointed out that though there was no provision in the CCS (CCA) Rules for filing an appeal against an order appointing a person as Inquiry Officer in a disciplinary proceeding, such an order could, nevertheless, be reviewed under the said Rules. The Staff Side desired that in view of this position, the Inquiry Officer should stay the proceedings if an application for review is filed by the delinquent official. It was agreed that obviously this should be done and the attention of the competent authorities could be drawn to the need for staying the proceedings once a review petition was submitted in such cases.

4. It has accordingly been decided that whenever an application is moved by a Government servant against whom disciplinary proceedings are initiated under the CCS (CCA) Rules against the inquiry officer on grounds of bias, the proceedings should be stayed and the application referred, alongwith the relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon. It has also been decided to re-emphasize to all Ministries/Departments the following instructions contained in paragraph, 5 of MHA OM No. 39/40/52-Ests. dated the 4th October, 1955 on the subject for expeditious and better disposal of departmental proceedings against Government servants:-

(i) In each Ministry or Department specified officer or officers of appropriate rank shall be nominated and earmarked for the purpose of conducting all the departmental inquiries arising within that Ministry/Department.

(ii) As soon as occasion arises for taking up such an inquiry, the nominated officer will be relieved of his normal duties to such extent as may be necessary to enable him to devote full and careful attention to the completion of the enquiries and the submission of his report. During this time the work of which the officer is relieved may be distributed amongst other officers.

5. The Ministry of Finance etc. are accordingly requested to bring to the notice of the various disciplinary authorities the need for staying the proceedings till such time as the review petition if any, submitted by a Government servant against the appointment of the Inquiry Officer is disposed of, as agreed to in the Committee of the National Council vide paragraph 3 above. They are also requested to keep in view the instructions contained in the Ministry of Home Affairs (Department of Personnel) OM No. 6/26/60-Estt. (A) dated 16th February, 1961 and No. 39/40/52-Ests.(A) dated 4th October, 1952 referred to above, regarding the appointment of Inquiry Officers in disciplinary proceedings.

[Cabinet Sectt. Department of Personnel, OM No. 39/40/70-Ests. (A) dated 9th November, 1972]

(11) Inquiry by the disciplinary authority:-

The Department of Personnel & Administrative Reforms OM No. 39/40/70-Estt.(A) dated the 9th November, 1972, inter-alia, provides that only those Inquiry Officers who are free from bias should be appointed by the disciplinary authority to conduct departmental inquiries. It is, further been provided that wherever an application is moved by a Government servant, against whom disciplinary proceedings are initiated, against the Inquiry Officer on grounds of bias, the proceedings should be stayed and the application referred to the appropriate reviewing authority for considering the matter and passing appropriate orders thereon. In this connection, the Staff Side raised the following points, at the National Council (JCM) meeting held in November, 1975:

(a) The orders contained in the Department of Personnel & AR OM dated 9th November, 1972 are not being implemented in some Departments; and

(b) The OM dated 9.11.1972 did not contain instructions regarding disciplinary authority inquiring into the cases itself.

2. Regarding (a) above, Ministry of Finance etc. are requested to observe and implement scrupulously the aforesaid instructions contained in this Department’s OM of 9th November, 1972.

3. The second point raised by the Staff Side has been further examined in this Department. According to Rule 14 (5) of the CCS (CCA) Rules, 1965, the disciplinary authority may itself inquire into the charges against the accused Government servant or appoint an Inquiry Officer for the purpose. However, it should be possible in a majority of cases, and the more serious ones at any rate, to ensure that the disciplinary authority himself does not conduct the inquiry. It may still be not practicable to ensure in all cases that the disciplinary authority himself would not be the Inquiry Officer. Such a course may be necessary under certain circumstances particularly in small field formations where the disciplinary authority as well as the Inquiry Officer may have to be one and the same person. It has accordingly been decided that unless it is unavoidable in certain cases as mentioned above, the disciplinary authority should refrain from being the Inquiry Officer and appoint another officer for the purpose.

[Deptt. of Personnel & AR OM No. 35014/1/76-Ests. (A) dated the 29th July, 1976]

(12) Whether charges can be dropped at the stage of initial written statement of defence:-

A question has been under consideration whether Rule 14 (5) (a) of the CCS (CCA) Rules, 1965 permits the dropping of charges by the disciplinary authority after considering the written statement of defence submitted by the accused Government servant under Rule 14 (4) ibid. The question has been considered in consultation with the Ministry of Law and the position is clarified as under:-

(a) The disciplinary authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government servant under Rule 14 (4) of the CCS (CCA) Rules, 1965.

(b) The disciplinary authority is not bound to appoint an Inquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with.

2. It may, however, be noted that the exercise of powers to drop the charges after the consideration of the written statement of defence by the accused Government servant will be subject to the following conditions:-

(a) In cases arising out of investigations by the Central Bureau of Investigation, the CBI should be consulted before a decision is taken to drop any of, or all the charges on the basis of the written statement of defence submitted by the accused Government servant. The reasons recorded by the disciplinary authority for dropping the charges should also be intimated to the Central Bureau of Investigation.

(b) The Central Vigilance Commission should be consulted where the disciplinary proceedings were initiated on the advice of the Commission and the intention is to drop or modify any of, or all the charges on the basis of the written statement of defence submitted by the accused Government servant.

[G.I., MHA OM No. 11012/2/79-Estt.(A) dated the 12th March, 1981 and OM No. 11012/8/82-Estt.(A) dated the 8th December, 1982]

(13) Permission to engage a Legal Practitioner:-

Rules 14 (8) (a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides, inter-alia that a delinquent Government servant against whom disciplinary proceedings have been instituted as for imposition of a major penalty may not engage a legal practitioner to present the case on his behalf before the Inquiring Authority, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. It is clarified, that, when on behalf of the disciplinary authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or a Government Law Officer (such as Legal Adviser, Junior Legal Adviser), there are evidently good and sufficient circumstances for the disciplinary authority to exercise his discretion in favour of the delinquent officer and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court as arbitrary and prejudicial to the defence of the delinquent Government servant.

[Deptt. of Personnel & AR OM No. 11012/7/83-Estt.(A) dated the 23rd July, 1984]

(14) Restriction on engaging Defence Assistant:-

Sub-rule (8) of Rule 14 of CCS (CCA) Rules, 1965 provides that a Government servant may take the assistance of any of the Government servants posted in any office either at his headquarters or at the place where the inquiry is held, to present his case on his behalf. A Government servant may, however, take the assistance of any other Government servant posted at any other station on being permitted by the Inquiring Authority to do so.

2. The Staff Side of the National Council (JCM) represented that the aforesaid provision in the rules was restrictive, amounting the denial of justice, and should therefore, be removed. The matter was also discussed in 28th Ordinary Meeting of the National Council held on 14th/15th January, 1986.

3. Rule 14 (8) of CCS (CCA) Rules, 1965 does not totally prohibit having a Defence Assistant from any station other than the headquarters of the charged Government servant or the place of inquiry. It is open to the inquiring authority to permit the appointment of a Defence Assistant from any other station, having regard to the circumstances of each case. However, at present, there is no provision for appeal against the decision of the inquiring authority in the matter, should it decide to refuse permission.

4. It has, therefore, been decided after discussion with the Staff Side, that a Government servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Government servant or the place of inquiry. Accordingly, in all cases where the inquiring authority rejects the request of the charged Government servant for engaging a defence assistant, from any station other than the headquarters of such Government servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Government servant to enable him to make a representation against the order, if he so desires, to the disciplinary authority. On receipt of the representation from the charged Government servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the inquiring authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order.

[Department of Personnel & Training OM No. 11012/3/86-Estt. (A) dated the 29th April, 1986]

(15) Appearance of a Government servant before the inquiry authority – Clarification of the import of the provisions in Rule 14 (7) of the CCS (CCA) Rules, 1965 –

The procedure for imposing major penalties is laid down in Rule 14 of the CCS (CCA) Rules, 1965 and sub-rule (7) thereof envisages that the Government servant shall appear in person before the inquiring authority on such day and at such time within 10 working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct and misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding 10 days, as the inquiring authority may allow. A point has been raised by the Staff Side in the National Council (JCM) that the provisions of the above cited sub-rule are followed more in breach than in observance since inquiry officers are not generally appointed within a short period of serving of articles of charge on the Government servant, hence it is not possible for the Government servant appear before the Inquiry Officer within 10 days of receipt of the articles of charge.

2. It is hereby clarified that the provisions in sub-rule (7) should be read in conjunction with the provisions in the preceding sub-rule (6), according to which the disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority various documents including articles of charge and statement of imputations of misconduct or misbehaviour. The requirement of the Government servant appearing in person before the inquiring authority, on such day and at such time within 10 working days, as laid down in sub-rule (7) is actually with reference to the date of receipt by the inquiring authority (and not the Government servant) of the articles of charge and the statement of the imputations of misconduct or misbehaviour. The need for expeditiously appointing an inquiring authority, wherever necessary, cannot, however, be over-emphasised.

[Deptt. Of Personnel & Training’s OM No. 35034/7/92-Estt. (A), dated 28th December, 1993]

(16) Retired Government servants appearing as defence assistants – conditions regarding.

The staff side in the National Council (JCM) had made a demand for enhancing the ceiling on the number of cases a retired Government servant can take up as Defence Assistant. In the light of the discussion in the meeting of the National Council in this regard, it has been decided to raise the limit of cases from five to seven. Hence in supersession of the earlier order on the subject, it has been decided in terms of rule 14 (8) (b) of the CCS (CCA) Rules, 1965 that the Government servant concerned may take the assistance of a retired Government servant subject to the following conditions:-

(i) The retired Government servant concerned should have, retired from service under the Central Government.

(ii) If the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, contained in Rule 14 (8) of the CCS (CCA) Rules, 1965 would apply.

(iii) The retired Government servant concerned should not have, in any manner, been associated with the case at investigation stage or otherwise in his official capacity.

(iv) The retired Government servant concerned should not act as a defence assistant in more than seven cases at a time. The retired Government servant should satisfy the inquiring officer that he does not have more than five cases at hand including the case in question.

[Deptt. of Personnel & Training OM No. 11012/11/2002-Ests. (A) dated 05.02.2003]

(17) Simultaneous action of prosecution in a court and initiation of departmental proceedings -

The M.H.A. O.M. No. 39/30/54-Ests. dated the 7th June, 1955 and No. 39/8/64-Ests. dated the 4th September, 1964, state that prosecution should be the general rule in all cases which are found fit to be sent to Court and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds and that in such cases, departmental action should not precede prosecution. References are being received in this Department seeking clarification as to whether departmental action can also be taken, where the same matter has been taken up in a court of competent jurisdiction for prosecution of the Government servant concerned.

2. What may be deduced from the above instructions is that in serious cases involving offences such as bribery/corruption etc., action should be launched for prosecution as a matter of course. The Hon’ble Supreme Court had held in their various judgements, the important ones being, State of Rajasthan Vs. B.K. Meena & Others (1996 6 SCC 417), Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited (1999 3 SCC 679), Kendriya Vidyalaya Sangathan & Others Vs. T. Srinivas (2004 (6) SCALE 467) and Noida Entrepreneurs Association Vs. Noida (JT 2007 (2) SC 620), that merely because a criminal trial is pending, a departmental inquiry involving the very same charges as is involved in the criminal proceedings is not barred. The approach and objective in the criminal proceedings and disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against the Government servant are established and if established, what sentence can be imposed on him. In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Government servant in service in spite of the serious charges leveled against him may have to be considered by the Competent Authority to proceed with departmental action.

3. However, if the charge in the criminal case is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. This will depend upon the nature of offence and the evidence and material collected against the Government servant during investigation or as reflected in the charge-sheet. If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were kept pending on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest, if the case so warrants.

4. In the case of Hindustan Petroleum Corporation Ltd. Vs. Sarvesh Berry [2004 (10) SCALE Page 340], it has been held in Para 9 that “it is not desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in criminal case against the delinquent officer. Each case requires to be considered in the back drop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law.” The apex court has referred to the conclusions given in Para 22 of Captain M. Paul Anthony’s case.

5. It is, therefore, clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the very same charges and the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon’ble Supreme Court, as mentioned in the preceding paragraphs.

[DOPT OM No. 11012/6/2007-Estt. (A), dated 1st August, 2007]