Reading Material on
Disciplinary Proceedings
For the Principals of Kendriya Vidyalayas
Prepared for the
Three-day Training Course for the Principals of Kendriya Vidyalayas on
“Disciplinary Proceedings”
By Dr. V. K. Agarwal, Deputy Commissioner,
KVS Sirsa Region
Organized at
KendriyaVidyalayaSangathan
Zonal Institute of Education & Training
Gwalior – 474002 (M. P.)
From 04.12.2012 to 06.12.2012
KENDRIYA VIDYALAYA SANGATHAN
NEW DELHI - 110016
FOREWORD
Kendriya Vidyalaya Sangathan (KVS) is an autonomous organization under the Ministry of HRD, Govt. of India employs about 50000 teaching and non- teaching staff. The KVS has mutatis mutandisadopted CCS (conduct)Rules 1964 and CCS (CCA)Rules 1965 to discipline its staff. Code of conduct for teachers in addition to CCS (conduct)Rules 1964 has also been incorporated under the article 59 of the Education Code for Kendriya Vidyalayas. Separate provisions have been added under article 81 (B) of the said code to deal with cases of Moral turpitude. Article 81 (D) has recently been added to curb unauthorized absent amounting to abandonment of the services by the employees.
Although not many cases of Disciplinary Proceedings are pending at a time, yet substantial number of officers is deployed to conduct inquiry in various misconducts. Since Disciplinary Powers have been bestowed/delegated at different levels, it is necessary that trained staff is made available in every Region to conduct preliminary inquiries and to act as Inquiry Officers and Presenting officers.
It is well known that even minor deviation in inquiry procedure can vitiate entire inquiry at later stage. As such the officers assigned the tasks of the enquiry should be thorough with CCS (CCA)Rules 1965, practices in the areas and important judicial pronouncements related the departmental proceedings.
The reference material will help the prospective Disciplinary Authorities, Inquiry Officers andPresenting Officers. It would also be helpful to those facing charges for alleged misconducts. In order to prevent occurrence of misconducts and reduce the numbers of Disciplinary cases, it is suggested that all the employees are made aware of the various provisions of Conduct rules and Disciplinary Proceedings.
I do not claim much originality in this reference material, but an effort has been made to put the various rules, practices and decisions of the CATs, High Courts and Supreme Court at one place to give a comprehensive view. I sincerely acknowledge the writings of the all those authors from whom I have drawn in preparing this reference material. Suggestions for improvement will help in further revision of the material.
27th October, 2012
Dr. V.K. Agrawal
Deputy Commissioner
KVS(RO) Sirsa
INDEX
CHAPTER / TOPIC / PAGE NO.Preface
FOREWORD
Time Table for the Three-day Training course in Disciplinary Proceedings
1 / CONSTITUTIONAL PROVISION AND CONDITIONS OF SERVICE / 7
2 / PRINCIPLES OF NATURAL JUSTICE / 10
3 / CONDUCT RULES IN PUBLIC SERVICE - WHAT IS MISCONDUCT? / 16
4 / PRELIMINARY INVESTIGATION /INQUIRY / 23
5 / PENALTIES / 28
6 / DISCIPLINARY AUTHORITY / 32
7 / SUSPENSION / 34
8 / CHARGE SHEET / 37
9 / PROCEDURE FOR IMPOSING MINOR PENALTIES / 44
10 / APPOINTMENT OF PRESENTING OFFICER AND INQUIRY OFFICER / 46
11 / FUNCTIONS OF PRESENTING OFFICER / 49
12 / FUNCTIONS OF INQUIRY OFFICER / 69
13 / DISCIPLINARY PROCEEDINGS FOR MAJOR PENALTY / 78
14 / DILATORY TACTICS EMPLOYED BY THE SUSPECTED PUBLIC SERVANT- HOW TO MEET THEM / 87
15 / WRITTEN BRIEF OF THE PRESENTING OFFICER / 89
16 / APPRECIATION OF EVIDENCE / 93
17 / EVALUATION OF EVIDENCE / 102
18 / REPORT OF THE INQUIRY OFFICER / 106
19 / ACTION ON THE INQUIRY REPORT / 109
20 / IMPLICATIONS OF MINOR PENALTIES / 113
21 / APPEALS, REVIEWS AND REVISION / 117
CHAPTER- 1
CONSTITUTIONAL PROVISION AND CONDITIONS OF SERVICE
(1) The article 309 of Part XIV of the constitution of India lays down the power to legislate for methods of recruitment and conditions of service for the employees of the Union or States.
(2) Article 309 of the constitution states:
Subject to the provisions of the constitution Acts of the appropriate Legislature may regulate the recruitment and conditions of service of persons appointed to the public services and posts in connection with the affairs of the Union or of any State.
Provided that it shall be competent for the President or such persons as he may directto make rules regulating the recruitment and conditions of service of persons appointed to the such services and posts until provision in that behalf is made by or under any Act of appropriate Legislature.
(3) Though the Parliament is empowered to make laws regulating the recruitment and conditions of service of central government servants, yet parliament has not so far passed any such law.
The President, under the proviso to the above article has made a number of Rules like The Railway Servant (Discipline & Appeal ) Rules 1968, CCS (Temporary Service Rules) 1965, but reference is made here for
(a)CCS (Conduct) Rules 1964
(b)CCS (CCA) Rules 1965
These rules have the force of law and are justiciable. However, if an Act is passed by the Parliament, it would supersede any rule made by the President.
Article 309 is expressly made subject to the provisions of the Constitution. It means that the provisions or rules made under this article will be subject to the Art. 310(1) as also Art.311 and other provisions like Art 14,16, 19, 299 etc.
(4) Article 310 deals with the ‘pleasure doctrine’.
(5) Art. 311 (1) enjoins that no civil servant under the Union or State shall be dismissed or removed by an authority subordinate to that which he was appointed.
Clause (2) of the said Art. states that no person as aforesaid (Civil servant under the Union or State) shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of these charges.
The proviso to the Article 311 further provides that this clause shall not apply
(a)where a person is dismissed or removed or reduced in rank on the ground which led to his conviction in Criminal Court
(b)Where authority empowered to dismiss or remove or reduce in rank is satisfied that for some reason, to be recorded in writing, it is not reasonably practicable to hold such inquiry; or
(c)Where the President or the Governor, as the case may be, is satisfied that in the interest of the security of State it is not expedient to hold such inquiry.
Let us consider each proviso:
(a)The rationale behind this exception is that when the Government servant has been convicted by a court after a fair trial, he had ample opportunity to defend himself. Further the applicability of the Law of Evidence in court proceedings is much more rigorous than applied in departmental proceedings. However it should be noted that the clause applies for conviction under criminal charge involving moral turpitude or without it. Thus conviction under Police Act for drunkenness is also conviction under court of law.
The conviction contemplated under this proviso means conviction by a competent Court of Law against which no further appeal or review is permitted. This means conviction by the last court. However, it is open for the disciplinary authority to pass an order of penalty immediately after the trial court records conviction. But if conviction is set aside by the appellate court the punishment awarded can not stand.
IS IMPOSITION OF PENALTY IS A MUST ON CONVICTION
An impression prevails that conviction of an employee would automatically entail his dismissal, removal or reduction in rank.
The Supreme Court has stated in judgments that penalty is not necessary on conviction. It is up to the disciplinary authority to apply his mind to come to a conclusion based on its impact on administration or whether the conviction was purely on technical ground.
EFFECT OF CONVICTION BEFORE JOINING THE SERVICE
Disciplinary authority is empowered to take action under proviso to the rule if the fact of conviction was not known to appointing authority at the time of appointment. However, if it was known to the appointing authority but it ignored it the rule cannot be invoked.
WHEATHER DEPARTMENTAL PROCEEDINGS AND CRIMINAL TRIAL CAN PROCEED SIMULTANEOUSLY
There is no bar to the disciplinary proceedings and the criminal trial being held simultaneously provided
(a)the two do not cover the same fact or allegation
(b)if the case is of simple nature not involving question of fact or law i.e. there is no relationship between criminal trial and departmental proceedings
It will not amount to contempt of court unless the proceedings have been stayed by the court by an injunction.
WHETHER DEPARTMENTAL ACTION IS PERMISSIBLE AFTER ACQUITTAL BY CRIMINAL COURT
It is well known that standard of proof required in a criminal court is of much high standard than required in departmental proceedings. In fact in departmental proceedings it is preponderance of probability. The proof required is not beyond reasonable doubts.
BUT many a times court acquits the person on technical grounds. Acquittal in a criminal trial may on account of –
(i)lack of sufficient evidence
(ii)lack of sanction for prosecution or technical defect
(iii)irregularity committed by trial court
(iv)defect of technical nature in proceedings
(v)honorable acquittal on merits
In respect of grounds (i) to (iv) it is open to the disciplinary authority to proceed departmentally against the delinquent Government servant and the person can be punished. Madras High Court in a judgment held that penalty imposed on a teacher by the departmental authority valid despite the fact that he was acquitted of the charge of rape against a girl student in the court case.
The departmental authority punished him for grave impropriety in his relationship with the girl student and the conduct of the delinquent was such as to bring down the reputation of the organization.
Proviso clause (b) clearly states that
Inquiry can be dispensed with only by the competent authority empowered to dismiss or remove or reduce in rank
For the reasons to be recorded in writing that it is not reasonably practicable to hold inquiry as per the provision of the CCS (CCA) Rules 1965
Art.311 (3) further provides that decision of the competent authority not to hold inquiry shall be final and shall not subject to any appeal or review but can be a subject of judicial review.
Further the situation which makes the holding of inquiry not reasonably practicable should exist at the time the decision was taken.
MEANING OF THE TERM ‘REASONABLY PRACTICABLE’
(1) The term has been used in relation to holding of enquiry and it is no way related to the articles of charge i.e. inquiry cannot be dispensed with on the ground that it would be difficult to prove the charge.
(2) There should be physical or legal impediment to the holding of inquiry and the reasons should be assessed objectively.
(3) Mere expediency or desire to take quick drastic action cannot be termed as reasons for not holding the inquiry.
(4) Holding of inquiry may become practicable at any stage of the inquiry, say after the service of the charge sheet or during the course of inquiry. The test is that a reasonable person takes a reasonable view of the prevailing situation.
(5) Reason for not holding of inquiry may or may not be informed to the employee. The requirement is that reasons should be recorded in writing before taking the decision.
PROVISO CLAUSE ©
(1) The decision of the President or Governor regarding in the interest of the state is final and cannot be challenged in the Court of law.
(2) Security of State does not mean the security of the entire state. It includes security of the part of the state also. Passing of secret information to another country, links with terrorists or terrorists’ organization are the examples of invoking this clause.
CHAPTER- 2
PRINCIPLES OF NATURAL JUSTICE
Introduction
The expression ‘Natural Justice” is derived from the old expression ‘Jus naturale’ i.e., justice which comes naturally to man or which is part of his nature. Lord Asher has defined it as ‘Natural sense of what is right or wrong’. As is well known the elements of jurisprudence which are now regarded as the hallmark of the judicial system in civilized society have been generally enforced or regarded as proper since times immemorial. The justice of Vikramaditya is proverbial and so was the case in the recent past during the reign of Jahangir commonly known as Jahangiri Insaf. In England, the principles of British justice were based on the principles of fair play and just procedure. In America these principles have been read into the phrase “Due Process” included in the American Constitution. ‘That no man should be condemned unheard’ was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered. In old times the concept of natural justice was a concept embedded in religion and philosophy. Now it is a concept of practical utility in the dispensation of justice whether by a Court of Law or a quasi-judicial tribunal or authority. The concept has, of late, permeated to the field of Administrative decision-making also to some extent. Before we proceed further, let us trace the historical development of the principles of natural justice.
Historical Development of the Principles of Natural Justice
The principles of natural justice are as ancient as man himself. Bible tells us the story of Adam and Eve when they ate the fruit of knowledge while they were living in paradise. The story goes that God had forbidden Adam and eve, the first man and woman, to eat the fruits of a particular tree in paradise. The Satan, however, induced them to taste the fruit which they did. When this fact came to the knowledge of God, he did not condemn them and pass sentence. God, it is so said, called upon both Adam and Eve to explain. God said to Adam, “Where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat”. This clearly shows that even God who is all pervasive and who knows all things did not think it proper to condemn without giving a chance to Adam and Eve to state before him their defence. This principle “No one should be condemned unheard” is derived from the action of God himself. Certainly there can be no better authority in the world than God.
Keeping the above authority in mind, the most eminent judges of 17th Century upheld the supremacy of natural justice over the Statutory Law. In Calvin’s case (1608)—7 Co Rep la (121): 77 ER 377 (391-392) it was held that the law of nature is immutable as it came before any judicial or Municipal law. It was also held that the law of nature was infused into the heart of man by God at the time of the creation of the nature of man for his preservation and direction and this was therefore eternal and moral law since it was written with the finger of God in the heart of man before the law was written by his prophet i.e. Moses. The view held was that even the Acts passed by Parliament, if there were repugnant to the law of nature, would be void. According to this interpretation even an Act of Parliament made against natural justice and equity, as to make a man judge in his own cause was held as void as the laws of nature were considered immutable.
This position, however, underwent a radical change in the 19th Century when the Courts in England held that the general principles of natural justice cannot modify the statutory law and no court can countenance a view that an Act of Parliament is not binding if it is contrary to reason or principles of natural justice. In the case of Logan Vs Burslem in 1842, it was held that a court of justice cannot itself be above the Legislature. Further in the historical case of Local Government Board Vs Alridge (1915-AC 120), it was conclusively laid down that the authority of the courts is purely statutory and if an Act of Parliament expressly authorizes a procedure in consistent with the principles of natural justice, then that has to be followed, because the law of Parliament is Supreme. A distinction has however, to be made in as much as that the principles of natural justice are applicable where the statutory law as made by Parliament is silent about the procedure to be adopted. Thus even in England where the view was held that the principles of natural justice are Supreme and above the laws of the land, the position has been reversed. The position now prevailing is that the principles of natural justice are not construed to override statutory laws.
In India, which is also a common law country, the position is slightly different. The principles of natural justice are not treated as fundamental rights and hence there is no constitutional protection like the “Due process” in America. Article 21 of the Constitution provides that no person shall be deprived of his life or liberty except according to the procedure established by law. The position as it prevails at present is that a law can be passed by the Indian Parliament violating the principles of natural justice and such law shall not be void. In India any law which is repugnant to the express provisions of the constitution alone is struck down as void. Thus the law providing for preventive detention without trial is valid law in India. The correct position of the principles of natural justice has been admirably stated by the Supreme Court in case of A K Kariapak Vs the Union of India (AIR 1970 SC 150). The Supreme Court has observed, “the aim of rules of natural justice is to secure justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law but supplement it.”