The Central Civil Services (Classification, Control & Appeal) Rules, 1965
RULE 15. ACTION ON INQUIRY REPORT:
Government of India Decisions
(1) Final orders to be passed by the ‘higher disciplinary authority’ who instituted the enquiry:-
When proceedings are instituted by a “higher disciplinary authority”, final orders should also be passed by such “higher disciplinary authority” and the case should not be remitted to a lower disciplinary authority, on the ground that on merits of the case it is sufficient to impose a minor penalty and such minor penalty could be imposed by a lower disciplinary authority. In such cases the appeal against the punishment order of the “higher disciplinary authority” shall lie to the authority prescribed under the CCS (CCA) Rules, as the appellate authority in respect of such order.
[MHA OM No. 6/26/60-Ests.(A) dated the 8th June, 1962]
(2) Not appropriate to bring in past bad records in deciding the penalty, unless it is made the subject matter of specific charge of the charge-sheet itself:-
A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined 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 consideration in determining the penalty to be imposed, it should be made a specific charge in the charge-sheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge-sheet, would vitiate the proceedings, and so should be eschewed.
[G.I.M.H.A., OM No. 134/20/68-AVD, dated the 28th August, 1968]
(3) Passing of orders by the Disciplinary Authority on the report of Inquiry Officer- Quick disposal of cases:-
The following items sponsored by the Staff Side of the National Council of the Joint Consultative Machinery were discussed in the 9th Ordinary meeting of the National Council held on 25th and 26th September, 1970:-
“Suitable provisions should be made in Rule 15 of the CCS (CCA) Rules, 1965 to make it obligatory on the part of the Disciplinary Authority to pass orders on the enquiry report within a period of 15 days, to avoid delay”.
After some discussion, it was decided that the Official Side might examine the feasibility of prescribing a time-limit of two month within which the disciplinary authority should pass the orders on the report of the inquiry officer, and requiring that authority to submit a report to the next higher authority in cases where the time-limit cannot be adhered to, explaining the reasons therefor.
The suggestion of the Staff Side has accordingly been examined further. It is felt that, while both in the public interest as well as in the interest of employees no avoidable delay should occur in the disposal of disciplinary cases, it is necessary that sufficient time is available to the disciplinary authority to apply its mind to all relevant facts which are brought out in the inquiry before forming an opinion about the imposition of a penalty, if any, on the Government servant. While, therefore, it has to be ensured that fixing of any time limit on the disposal of the inquiry report by the disciplinary authority by making a provision in this regard in the CCS (CCA) Rules should not lead to any perfunctory disposal of such cases, taking all relevant factors into consideration it is felt that 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 three 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 with the CVC and the UPSC also, every effort should be made to ensure that cases are disposed of as quickly as possible.
[Cabinet Sectt. (Deptt. of Personnel) Memo No. 39/43/70-Ests.(A) dated the 8th January, 1971]
(3A) Delays in passing orders by the Disciplinary Authorities –
In the OM No. 39/43/70-Estt. (A) dated 08.01.1971, it has been envisaged that it should normally be possible for the disciplinary authority to take a final decision on the enquiry report within a period of three months. In cases where it is felt that it is not possible to adhere to this time limit, a report may be submitted to the next higher authority indicating the additional period required and reasons for the same. It should also be ensured that cases involving consultation with the CVC and UPSC are disposed of as quickly as possible.
2. Though no specific time limit has been prescribed in the above OM in respect of cases where consultation with CVC and UPSC is required, it is imperative that the time limit of three months prescribed for other cases should be adhered to in such cases after receipt of the advice of the UPSC.
[Deptt. Of Personnel & Training OM No. 11012/21/98-Estt.(A) dated 11th November, 1998]
(4) Disciplinary cases – need for issuing speaking orders by competent authorities:-
As is well known and settled by courts, disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under other corresponding 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 disciplinary/appellate/reviewing authorities under the relevant rules and the orders issued by such authorities should have the attributes of a judicial order. The Supreme Court, the case of Mahavir Prasad Vs. State of U.P. (AIR 1970 SC 1302), observed that recording of reasons in support of a decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of cap-rice, whim or fancy, or reached on ground of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.
2. However, instances have come to the notice of this Department where the final orders passed by the competent disciplinary/appellate authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached. Since such orders may not conform to legal requirements, they may be liable to be held invalid, if challenged in a court of Law. It is, therefore, impressed upon all concerned that the authorities exercising disciplinary powers should issue self-contained speaking and reasoned orders conforming to the aforesaid legal requirements.
3. Instances have also come to notice where, though the decisions in disciplinary/appellate cases were taken by the competent disciplinary/appellate authorities in the files, the final orders were not issued by that authority but only by a lower authority. As mentioned above, the disciplinary/appellate/ reviewing authorities exercise quasi-judicial powers and as such, they cannot delegate their powers to their subordinates. It is therefore, essential that the decision taken by such authorities are communicated by the competent authority under their own signatures, and the order so issued should comply with the legal requirements as indicated in the preceding paragraphs. It is only in those cases where the President is the prescribed disciplinary/appellate/reviewing authority and where the Minister concerned has considered the case and given his orders that an order may be authenticated by an officer, who has been authorised to authenticate orders in the name of the President.
[Deptt. of Personnel & A.R. OM No. 134/1/81-AVD-I dated 13.07.1981]
(5) Supply of copy of inquiry report to the accused Government servant before final orders are passed by the disciplinary authority.
The issue as to whether in cases, where the disciplinary authority itself is not the inquiry officer, a copy of the inquiry report should be furnished to the accused Government servant to enable him to make his submissions, if any, before the disciplinary authority in regard to the findings of the report, before such authority passes its final orders, has been examined. The constitutional requirements laid down in Article 311 (2) of the Constitution of India, and the provisions of Rule 15 and 17 of the CCS (CCA) Rules, 1965 and rulings of the various benches of the Central Administrative Tribunal and of various courts on the matter have been kept in view.
2. The full bench of the Central Administrative Tribunal in the case of Prem Nath Sharma Vs. Union of India (represented by Ministry of Railways) have held that to fulfil the constitutional requirement of affording a reasonable opportunity, it is necessary that in all cases where the disciplinary authority is itself not the inquiry authority, a copy of the inquiry report shall be furnished to the accused Government servant to enable him to make his submissions in regard to the findings of the inquiry, before the disciplinary authority passes its order imposing the penalty. While giving its verdict, the full bench had taken into account the rulings of the various courts pronounced earlier on this issue. Although the special leave petition filed by the Ministry of Railways against the aforesaid judgment has been admitted for hearing and a stay order has been granted by the Supreme Court against its operation, the various benches of the Tribunal continue to follow the ratio laid down by the full bench. The special leave petitions filed by the concerned Ministries and Departments in some of the subsequent cases have not been admitted by the Supreme Court. In another similar case of E. Bashyam Vs. Department of Atomic Energy, in the special leave petition filed by the Department against the judgment of the CAT, the Supreme Court has expressed its view in favour of the principle laid down by the Tribunal, but directed that the matter be referred to a larger bench of the court.
3. In the light of the aforesaid judgments, the matter has been examined in consultation with the Department of Legal Affairs and it has been decided that in all cases, where an inquiry has been held in accordance with the provisions of Rule 14 of the CCS (CCA) Rules, the disciplinary authority, if it is different from the inquiry authority shall before making a final order in the case, forward a copy of the inquiry report to the Government servant concerned with the following endorsement:-
“The report of the Inquiry Officer is enclosed. The Disciplinary Authority will take a suitable decision after considering the report. If you wish to make any representation or submission, you may do so in writing to the Disciplinary Authority within 15 days of receipt of this letter.”
4. The aforesaid instructions will operate prospectively from the date of issue and accordingly will apply only in cases where the disciplinary authority is yet to pass orders. Past cases need not be reopened for consideration. These instructions will be reviewed after the final decision of the Supreme Court in the case of Prem Nath K. Sharma and E. Bashyam.
5. Ministry of Agriculture, etc. are requested to bring the above instructions to the notice of all Administrative Authorities under their control for compliance in all future cases including those in which the Central Administrative Tribunal has directed that a copy of the inquiry report be furnished to the accused Government servant before the Disciplinary Authority passes the order. In such cases the directive of the CAT should be complied with and no SLP should be filed. However, in cases where the SLPs on this issue are pending before the Supreme Court, the concerned Ministries/Departments may continue to pursue the cases for having an early hearing and an authoritative ruling on the issue.
[Deptt. of Personnel & Training’s 11012/13/85-Estt. Dated 26th June, 1989]
(5A) Reasons for disagreement, if any should be communicated –
The Supreme Court has decided the matter finally in its judgment dated 01.10.1993 in the case of Managing Director (ECIL), Hyderabad Vs. B. Karunakar (JT 1993 (6) SC.I). It has been held by the Supreme Court that wherever the Service Rules contemplate an inquiry before a punishment is awarded and when the inquiry officer is not the disciplinary authority; the delinquent employee will have the right to receive the inquiry officer’s report notwithstanding the nature of the punishment. Necessary amendment providing for supply of copy of the inquiry officer’s report to the delinquent employee has been made in Rule 15 of the CCS (CCA) Rules, 1965 vide Notification No. 11012/4/94-Estt. (A) dated 03.05.1995. All disciplinary authorities are, therefore, required to comply with the above mentioned requirement without failure in all cases.
2. A question has been raised in this connection whether the disciplinary authority, when he decides to disagree with the inquiry report, should also communicate the reasons for such disagreement to the charged officer. The issue has been considered in consultation with the Ministry of Law and it has been decided that where the Inquiring Authority holds a charge as not proved and the disciplinary authority takes a contrary view, the reasons for such disagreement in brief must be communicated to the charged officer along with the Report of Inquiry so that the charged officer can make an effective representation. This procedure would require the Disciplinary Authority to first examine the report as per the laid down procedure and formulate its tentative views before forwarding the Report of Inquiry to the charged officer.
[Department of Personnel & Training OM No. 11012/22/94-Estt. (A) dated 27.11.1995]
(6) Jurisdiction of the CAT in the matter of quantum of penalty against Government servants –
Supreme Court judgment in case of Parma Nanda Vs. State of Haryana and others.
A number of cases have come to the notice of this Department where the CAT, though agreeing with the decision of the disciplinary authority to hold the charges against a delinquent Government servant as proved, have modified the quantum of penalty on their own discretion. The question whether the Tribunal could interfere with the penalty awarded by the competent authority on the ground that it is excessive or disproportionate to the misconduct proved, was examined by the Supreme Court in the case of Shri Parma Nanda Vs. State of Haryana and other [1989 (2) Supreme Court Cases 177] and the Court held that the Tribunal could exercise only such powers which the civil courts or the High Courts could have exercised by way of judicial review. The Suprme Court in that case further observed as under:
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The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Art. 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
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We may, however, carve out one exception to this proposal. There may be cases where the penalty is imposed under Clause (a) of the second proviso to Article 311 (2) of the Constitution. Where the person without inquiry is dismissed, removed or reduced in rank solely on the basis of conviction of a criminal court, the Tribunal may examine the adequacy of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty imposed is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent authority for reconsideration or by itself substitute one of the penalties provided under Clause (a).”
[Deptt. of Personnel & Training OM No. 11012/1/90-Ests.(A) dated 28-02-1990]
(6A) Jurisdiction of the CAT in the matter of disciplinary action against Government servants –
In the case of State Bank of India Vs. Samarendra Kishore Endow (1994(1) SLR 516) also the Supreme Court has held that a High Court or Tribunal has no power to substitute its own discretion for that of the authority.
2. In this Judgment the Supreme Court has observed as under:
On the question of punishment, learned counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It “is not an appeal from a decision, but a review of the manner in which the decision was made”. In other words the power of judicial review is meant “to ensure that the individual received fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorized by law to decide for itself a conclusion which is correct in the eyes of the Court.”
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It would perhaps be appropriate to mention at this stage that there are certain observations in Union of India Vs. Tulsiram Patel (AIR 1985 SC 1416) which, at first look appear to say that the Court can interfere where the penalty imposed is “arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted by the facts and circumstances of the case or the requirements of that particular Government service.” It must, however, be remembered that Tulsiram Patel dealt with cases arising under proviso (a) to Article 311(2) of the Constitution. Tulsiram Patel overruled the earlier decision of this Court in Challappan (AIR 1975 SC 2216). While holding that no notice need be given before imposing the penalty in a case dealt with under the said proviso, the Court held that if a disproportionate or harsh punishment is imposed by the disciplinary authority, it can be corrected either by the Appellate Court or by High Court. These observations are not relevant to cases of penalty imposed after regular inquiry.
[Deptt. Of Personnel & Training OM No. 11012/6/94-Estt. (A) dated 28.03.1994]