The main focus of constituting Vigilance Division in a Government Department or any other sector is to minimize the scope of corruption in the regular work/dealing. Ultimate goal is to make the nation corruption free. To minimize the scope of corruption in the regular work, the Vigilance Division is working with the procedures and pros & cons of the working system and suggesting necessary changes to be made/incorporated in the system to make it corruption free. On the other hand, the Vigilance Division has to work with different information received from different corners through different modes. The Vigilance Division/Section of any Government Department of any other sector is receiving a sizeable number of complaints regularly. To handle those complaints regularly every Vigilance Division has to suffer a lot considering the nature of the complainants. Though the strongest and faithful mode is complaint but maximum complaints received by any Vigilance Division is found fake and motivated. It is the thought of people that, if any essence of corruption is being added with any complaint, then action against the said complainant became stronger and quicker. To handle simple complaints every department has its Complaint Section but corruption related complaints are being handled at the Vigilance Section. If any essence of corruption is being added in any complaint, then it will be dealt at Vigilance Section and after some sort of enquiry it will be found that the said complaint is simple in nature. So, all efforts of the Vigilance Section became purposeless. To avoid loss of manpower and to handle the complaints purposefully, the Central Vigilance Commission has made clear guidelines to dealt with complaints.

The complaint handling policy of the Commission has been laid down in detail in CVC Circular No. 98/DSP/9 dated 15.12.2014 and subsequent modification of the Complaint Handling Policy vide CVC Circular No. 004/VGL/020 (pt.) dated 01.0/.2019.

The Commission may inquire or cause an inquiry or investigation to be made into any complaint against any official belonging to specified category of officials wherein it is alleged that he has committed an offence under the Prevention of Corruption Act, 1988 and an offence with which he may, under the Code of Criminal Procedure, 19/3, be charged at the same trial. Specified category of officials and the organization falling under the jurisdiction of the Commission. The Commission does not entertain anonymous or pseudonymous complaints.

As the Commission deals only with matters of corruption, redressal of grievances should not be the focus of complaints to the Commission. No fee shall be chargeable for lodging complaints with the Commission. A complaint should preferably be lodged in typed or written form in English or Hindi language for facilitating early action thereon. The Commission may dismiss a complaint in-limine which does not meet the prescribed criteria. The Commission does not entertain complaints which are against private persons, State Government officials, Members of Parliament or State Legislature, elected representatives of other bodies, members of judiciary or officials of private organizations. The Commission does not have jurisdiction over them. Complaints sent on any e-mail ID of officers of the Commission will not be entertained or taken cognizance of by the Commission. For specific details regarding the procedure for dealing with complaints in the Commission, the Regulation 3 of CVC (Procedure for Dealing with Complaints and Procedure of Inquiry) Regulations, 2021 may also be referred. However for complaints from “whistle-blowers” under the Public Interest Disclosure and Protection of Informers Resolution 2004, the Government of India has authorized the Commission, as the Designated Agency, to receive written complaints or disclosure on any allegation of corruption or of misuse of office by any employee of the Central Government or of any corporation established by or under any Central Act, Government companies, societies or local authorities owned or controlled by the Central Government and take action in accordance with the provision of the Resolution.

Taking into account the facts and the nature of allegations made in the complaints, the Commission may take any of the following actions: -

a) get enquiry or investigation done through the CBI or any other investigating agency into the allegations levelled in the complaint. It may get the enquiry done through the CVO of the organisation concerned or any other CVO or an officer of the Commission and call for Inquiry Report (I&R); or

b) send the complaint to the above-mentioned Inquiry / Investigating Agencies for Factual Report (FR) or Discreet Verification and obtain report; or

c) send the complaint to the respective CVO for necessary action (NA); or

d) file or close the complaint.

The following criteria are generally applied while taking a decision to send a complaint for I&R: -

a) Complaints should be against officials and organizations within the jurisdiction of the Commission and containing allegations of corruption or misconduct or malpractice.

i) Complaints without specific factual details, verifiable facts and which are vague or contain sweeping or general allegations will not be acted upon.

ii) Complaint should be addressed directly to the Commission.

iii) The Commission does not entertain anonymous or pseudonymous complaints.

iv) As regards complaints in the matter of tenders, it is clarified that while the Commission may get the matter investigated, it would not generally interfere in the tendering process. Commission may, in appropriate cases, tender suitable advice to the authorities concerned.

v) As the Commission deals only with matters of corruption, redressal of grievances should not be the focus of complaints to the Commission.

b) Before sending a complaint for investigation and report (I&R), a confirmation would be sought from the complainant for owning or disowning the complaint, as the case may be, together with copy of his identity proof. If no response to the letter seeking confirmation is received from the complainant within 15 days, a reminder is sent. If still no response is received after 15 days of reminder, the complaint may be filed treating it as a pseudonymous complaint.

c) Once the Commission directs to investigate and submit a report on a complaint, a unique complaint number (case sensitive) would be provided to the complainant. The complainant can use this complaint number to see the status of action on the complaint by clicking on the ‘Complaint Status’ displayed on the Commission’s website – www.cvc.gov.in. However, the unique complaint number is not provided to the complainants in respect of complaints which have been filed or sent for necessary action or a factual report. The unique complaint number is distinctly separate from the letter or file number mentioned in the correspondence or the complaint serial number assigned to the complaint in electronic mode.

d) When the complaint has been registered in the Commission, further correspondence in the matter will not be entertained. However, Commission will ensure that the complaints are investigated, and action taken to its logical conclusion.

e) The CVOs are required to furnish investigation reports on such complaints within three months from the date of receipt of references from the Commission or within such time as specified by the Commission. The CVOs should personally review all such complaints pending for investigation in the Organizations in the first week of every month and take necessary steps towards expediting / finalization of reports and its processing. In case, if it is not possible to complete the investigations and refer the matter to the Commission within three months, the CVO should seek extension of time stating the specific reasons / constraints in each case, within 15 days of receipt of reference from the Commission. Such requests from the CVO should be with the approval of the Secretary / CMD / Chief Executive of the Department / Organization concerned, as the case may be. Non-adherence of the above guidelines and any instance of violation by the CVO would be viewed seriously by the Commission. (CVC Office Order No. 08/08/2020 dated 14.08.2020). However, in respect of PIDPI complaints, the time limit for submission of report is 12 weeks.

(f) After receipt of the report, the Commission may tender its advice or seek further information or clarification (FI) from the CVO. Upon receiving such further report as called for, the Commission would tender its advice. In respect of references made by the Commission to the Ministries, Departments / Organisations for clarification and / or comments, the same should be sent to the Commission within six weeks. If, in any case, it is not possible to do so, the Chief Vigilance Officer concerned should, after satisfying himself / herself of the reasons for delay, write to the Commission for extension of time.

(i) In respect of those complaints which are forwarded to CVOs of respective organisations for Necessary Action (N.A.); the CVO is required to scrutinize the complaints thoroughly and decide action on such complaints within a period of one month from the date of receipt of complaint from the Commission.

(ii) Before initiating action on complaints forwarded for Necessary Action (N.A.), CVO should seek confirmation from the complainant for owning or disowning the complaint, as the case may be, together with copy of his identity proof, as the Commission does not seek confirmation from the complainant, on such complaints.

(iii) In respect of the complaints referred by the Commission to CVOs for necessary action, in case they have been investigated and a vigilance angle has come to notice against an officer falling under the jurisdiction of the Commission, the case must be referred back to the Commission for obtaining its First Stage Advice. In such complaints, the timeline of three months for completion of investigation and submission of report would apply. Otherwise, such complaints require no further reference to the Commission and are to be disposed of by the Organisations concerned themselves after taking required action.

(iv) CVO should update the status of complaints sent for necessary action on the Commission's website at www.portal.cvc.gov.in (Commission's Circular No. 004/VGL/020 (Pt.) dated I3.08.2020).

(v) At the time of forwarding the complaint to the CVO concerned for necessary action, an acknowledgement is also sent to the complainant. Further status in this regard would be available with the CVO only and hence, it would be appropriate for the complainant to approach the CVO/ organisation concerned for obtaining information about the same, if he so desires.

The following categories of complaints would ordinarily be closed without taking any further action on the same: -

(i) Complaints containing allegations of administrative nature such as transfer, posting, promotion, leave etc.

(ii) Complaints not directly addressed to the Commission and/or endorsed to multiple authorities;

(iii) Complaints which are anonymous/ pseudonymous or contain vague, frivolous, non­specific allegations;

(iv) Complaints about sub-judice matter;

(v) Complaints against private persons, State Government officials, members of Parliament or State Legislature, elected representatives of other bodies, members of judiciary officials or private organisations etc. which are not covered within the Commission's jurisdiction;

(vi) Complaints which are illegible.

Complainant may find out the status of those complaints which have been referred by the Commission for necessary action from the CVO of the concerned Organization / Ministry or Department.

a) The Commission expects the CVO to scrutinise the complaints sent by the Commission for necessary action and decide action on such complaints within a period of one month from the date of receipt of complaint from the Commission.

b) Complaints referred to CVOs for necessary action must be referred back to the Commission for advice, if they have been investigated and a vigilance angle has come to notice against an officer falling under the jurisdiction of the Commission. If any such complaints are taken up for inquiry / investigation by the CVO, the time limit of three months for completion of investigation and submission of report would apply. Otherwise, such complaints require no further reference to the Commission and are to be disposed of by the Departments / Organisations themselves after taking necessary action. In terms of CVC Circular No. 004/VGL/020(Pt.) dated 13.08.2020, the CVO should update the status of complaints sent for necessary action on the Commission’s website at www.portal.cvc.gov.in.

c) However, all the complaints made under PIDPI Resolution which have been forwarded to the CVO for necessary action must be referred back to the Commission, irrespective of Commission’s normal jurisdiction, for advice if they have been investigated and the allegation of corruption or mis-use of office by an employee has come to notice.

Complaints against Secretaries to the Government of India, received by the authorities other than the Commission will be referred to the Cabinet Secretariat for placing before the Group of Secretaries headed by the Cabinet Secretary. Similarly, complaints against the Chief Executives and Functional Directors of Public Sector Undertakings and the CMDs & Functional Directors of Public Sector Banks and Financial Institutions received by authorities other than the Commission will be placed before a Group of Officers headed by Secretary (Coordination) in Cabinet Secretariat. The procedure is laid down in DoPT OM No. 104/100/ 2009-AVD.I dated 14.01.2010 as amended by Corrigendum of the same No. dated 8.03.2010 and in DPE’s OM No. 15(1)/2010/DPE(GM), dated 11.03.2010 as amended by OM of the same No. dated 12.04.2010 and dated 11.05.2011.

The complaints received in the Commission against Secretaries to Government of India are generally being forwarded to the Cabinet Secretary. Such complaints should not be sent to the CVO of the Administrative Ministry concerned, in which the Secretary against whom the complaint has been made is working or had worked in the past. The complaints received in the Commission against Chairman / CMDs / MDs / CEOs / Functional Directors of CPSEs / PSBs, etc. would be forwarded to the CVO of the Administrative Ministry. Complaints referred by the Commission to the Ministries / Departments against aforesaid categories of officials are to be dealt / inquired into and report submitted to the Commission by the respective authorities to whom the complaints are sent by the Commission and such complaints should not be forwarded to the Group of Secretaries or Group of Officers for consideration. (CVC Circular No. 010/VGL/008 dated 14.03.2011 and 2/.0/.2010 – regarding clarification on complaints against Secretaries to GoI, etc.)

In large number of cases, complaints are sent to multiple authorities and processed. Therefore, to ensure consistency, any complaint received in CVC against Secretaries to Government of India and where an investigation report is to be sought by CVC, the same should be sought through Secretary, DoPT.

In respect of complaints referred by the Commission to the Ministries / Departments against the Chief Executives and Functional Directors of Public Sector Undertaking and the CMDs & Functional Directors of Public Sector Banks and Financial Institutions, the same are to be dealt / inquired into by the Ministries / Departments concerned to whom the complaints have been forwarded by the Commission, and reports submitted to the Commission by the respective authorities.

Complaints received from Lokpal are to be dealt with in accordance with the provisions of the Lokpal & Lokayuktas Act, 2013.

Complaints received by or cases arising in Ministries / Departments / Offices in respect of the employees under their administrative control may be dealt with by the administrative Ministry / Department concerned. The Central Vigilance Commission is, however, responsible for advising the administrative authorities in respect of all matters relating to integrity in administration. The Commission has also the power to call for reports, returns and statements from all Ministries / Departments so as to enable it to exercise a general check and supervision over vigilance and anticorruption works in Ministries / Departments. It may also take over under its direct control any complaint or cases for investigation and further action. The matters in which the Central Vigilance Commission should be consulted during the progress of inquiries and investigations and the reports and returns which should be submitted to Central Vigilance Commission to enable it to discharge its responsibilities have been indicated in the relevant paragraphs of the Manual.

Excluding the Lokpal referred complaints, following procedure may be followed: -

a) Every Vigilance Section / Unit will maintain a vigilance complaint register in Form CVO-1, in two separate parts for category ‘A’ and category ‘B’ employees. Category ‘A’ includes such employees against whom Commission’s advice is required whereas category ‘B’ includes such employees against whom Commission’s advice is not required. If a complaint involves both categories of employees, it should be shown against the higher category, i.e., Category ‘A’.

b) Every complaint, irrespective of its source, would be entered in the prescribed format in the complaints register chronologically as it is received or taken notice of. A complaint containing allegations against several officers may be treated as one complaint for the purpose of statistical returns.

c) Entries of only those complaints in which there is an allegation of corruption or improper motive; or if the alleged facts prima facie indicate an element or potentiality of vigilance angle should be made in the register. Complaints, which relate to purely administrative matters or technical lapses, such as late attendance, disobedience, insubordination, negligence, lack of supervision or operational or technical irregularities, etc. should not be entered in the register and should be dealt with separately under “non-vigilance complaints”.

d) A complaint against an employee of a Public Sector Enterprise or an Autonomous Organisation may be received in the administrative Ministry concerned and also in the Commission. Such complaints will normally be sent for inquiry to the organisation in which the employee concerned is employed and should be entered in the vigilance complaints register of that organisation only. Such complaints should not be entered in the vigilance complaints register of the administrative Ministry in order to avoid duplication of entries and inflation of statistics, except in cases in which, for any special reason, it is proposed to deal with the matter in the Ministry itself without consulting the employing organisation.

Each complaint will be examined by the Chief Vigilance Officer to see whether there is any substance in the allegations made in it to merit. Where the allegations are vague and general and prima facie unverifiable, the Chief Vigilance Officer may decide, with the approval of the Head of the Department, where considered necessary, that no action is necessary and the complaint should be dropped and filed. Where the complaint seems to give information definite enough to require a further check, a preliminary inquiry / investigation will need to be made to verify the allegations so as to decide whether, or not, the public servant concerned should be proceeded against departmentally or in a court of law or both. If considered necessary, the Chief Vigilance Officer may have a quick look into the relevant records and examine them to satisfy himself about the need for further inquiry into the allegations made in the complaint. Detailed guidelines about the nature of investigation and the agency, which should be entrusted with it, are given in Chapter V. The information passed on by the CBI to the Ministry / Department regarding the conduct of any of its officers should also be treated in the same way.

A complaint which is registered can be dealt with as follows:

(i) file it without or after investigation; or

(ii) forward it to the CBI for investigation / appropriate action; or

(iii) forward it to the concerned administrative authority for appropriate action on the ground that no vigilance angle is involved; or

(iv) to take up for detailed investigation by the Departmental Vigilance Wing.

An entry to that effect would be made in columns 6 and 7 of the Vigilance Complaint Register (Form CVO-1) with regard to “action taken” and “date of action” respectively. A complaint will be treated as disposed of in Quarterly Performance Report (QPR) either on issue of charge-sheet or on final decision for closing or dropping the complaint. If a complaint is taken up for investigation by the Departmental Vigilance Wing or in cases in which it is decided to initiate departmental proceedings or criminal prosecution, further progress would be monitored through other relevant registers. If there were previous cases / complaints against the same officer, it should be indicated in the remark’s column, i.e., column 8.

Complaints received from the Commission under the PIDPI Resolution are not required to be verified for genuineness by the CVO as the process of verification / confirmation is completed in the Commission prior to referring it for investigation or further necessary action. Therefore, these should be taken up for investigation by CVO on their receipt from the Commission. Such complaints shall, in other words, be treated as registered, immediately on receipt. The Department is required to send its report to the Commission within three months from the date of receipt of the reference.

Complaints received by the Department where the Commission has called for an “I & R” shall be treated as a signed complaint (not required to be verified for genuineness) and taken up for investigation. (CVC Circular No. 01/01/2015 dated 23.01.2015)

In respect of references made by the Commission to the CBI / Ministries, etc. for clarification and / or comments, the same should be sent to the Commission within 6 weeks.

Any complaint against the CVO should be immediately referred to the Commission and the Commission would decide the further course of action thereon. However, the complaints against the other vigilance functionaries shall be looked into by the CVO personally and further action taken as per normal procedure.

References received from Members of Parliament and Dignitaries are to be dealt as per procedure laid down in Central Secretariat Manual of Office Procedure brought out by the Department of Administrative Reforms and Public Grievances. It has, however, been noticed that a number of complaints are being received using letter heads of Members of Parliament / VIPs and with forged signatures of the Hon’ble MPs / VIPs. Hence, as a measure of abundant caution and to provide adequate protection to the officers against whom such complaints have been made, confirmation shall be sought from the dignitary regarding the making of the complaint. On receipt of confirmation, the complaint shall be dealt with on priority as per the procedure referred to above.

a. Complaints can be lodged by addressing the written communication / letter directly to the Commission or on Commission’s portal www.portal.cvc.gov.in or through the Commission’s website www.cvc.gov.in under the link “Lodge Complaint” on home page.

b) Complaints sent through written communication / letter should contain complete postal address (mobile / telephone number, if any) of the sender with specific details / information of the matter.

c) Complaints sent on any e-mail ID of officers of the Commission will not be entertained or taken cognizance of by the Commission.

d) Procedure for lodging complaints under the PIDPI Resolution by the whistle-blowers is given in detail later on in this book.

a. Complainants are important stake holders for an anti-corruption institution like Central Vigilance Commission. The Commission expects that the complaints lodged with the Commission are genuine and not malicious, vexatious or frivolous; are based on verifiable facts and pertain to the Commission’s jurisdiction. Complainants must keep in mind that the resources at the command of the Commission and other vigilance formations are precious; and so, it needs to be used prudently in unearthing serious issues of corruption that would serve the public interest. Apart from using the resources of the Commission, false and frivolous complaints create administrative delays in decision making like in the selection processes, project implementations apart from tarnishing personal reputations of the Government functionaries. Though there are provisions in law to deal with false and frivolous complaints, the same are not invoked ordinarily so that genuine complainants are not deterred. However, in appropriate cases where complaints are lodged with a malafide / ulterior motive to harass or harm an innocent Government servant, necessary action could be taken against such complainants by applying the existing provisions.

b. The complaint should not be anonymous or pseudonymous. If the complainant expects that the Commission should not file (take no action) their complaints on the basis of it being anonymous or pseudonymous, the complainants are expected to mention their name, correspondence address and contact details properly / correctly. It is also expected that the complainants will be quick to respond to the verification / confirmation being sought from them by the Commission. The complainants may lodge complaint under PIDPI Resolution, 2004 if they wish to protect their identity.

c. Similarly, complaints having incomplete / vague / generic observations are difficult to inquire into or investigate and are normally filed (no action taken). Therefore, it is expected from the complainants to go through the Complaint Handling Policy of the Commission, which is available on its website www.cvc.gov.in, so that only those complaints are lodged which are specific and where adequate evidence is enclosed so that it can indicate a substantive vigilance angle prima-facie.

d. The complaint should not be biased or based on any personal grievances, not having any vigilance angle as such.

e. The complaint should be pertaining to Ministries / Departments/ Organisations falling within the normal jurisdiction of the Commission. For example, complaints against any authority or employee pertaining to State Governments do not fall within the normal jurisdiction of the Commission and hence the same would be filed (no action taken). The process of filing complaints and its processing within the Commission may lead to the use of the resources within the Commission in an un- productive manner.

f. The complainants who want to make whistle blower complaint under PIDPI Resolution are also expected to familiarise themselves with the proper procedure as enumerated in the Commission’s Circular for complaints under PIDPI Resolution. If these procedures are not followed, then the complaints made thereunder will be treated like a general complaint and the identity of the complainant may get revealed. This may put the complainant in a disadvantageous position.

g. The complainants are advised to raise only those issues in their complaints to Commission which may not have been raised by anyone before any authority. At times, the complainant addresses his complaint to multiple agencies rather than addressing to the Commission only. In such situations, it becomes very difficult for the Commission to initiate action as it is felt that since the complaint is addressed to other agency / agencies they may take appropriate action in the matter. Therefore, it is expected from the complainant to address their complaints only to the Commission, in those cases where they expect action to be taken by the Commission.

h. It has also been the experience of the Commission that some complainants raise a large number of issues in one complaint in a way that all the issues get mixed up / intertwined with each other and it becomes difficult to discern and delineate the specific issues individually. The Commission expects that the complainants, while forwarding their complaints to the Commission, should mention about the various specific issues one by one in a coherent manner so that any person of normal prudence can understand these issues unambiguously.

i) It has also been observed that many a time, hand written complaints received in the Commission are not legible at all and it becomes difficult to understand the contents of complaints and take appropriate action. If a hand-written complaint is forwarded to the Commission, it is expected that it should be legible. The same applies to the enclosures sent along with the complaints. All types of complaints, even if printed or photocopied should be clearly legible.

ii) The complainants are also expected to lodge complaints regarding only those issues having vigilance angle which are not part of any litigation in any courts, tribunals, etc., i.e., the matter should not be sub-judice.

If a complaint against a public servant is found to be malicious, vexatious or unfounded, it should be considered seriously whether action should be taken against the complainant for making a false complaint. Under Section 182 of the Indian Penal Code, 1860, a person making false complaint can be prosecuted. Section 182 reads as follows: -

“Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:

a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him, or

b) to use the lawful power of such public servant to the injury or annoyance of any person, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.

Illustrations:

a) A informs a Magistrate that Z, a police officer, subordinate to such Magistrate, has been guilty of neglect of duty or misconduct, knowing such information to be false, and knowing it to be likely that the information will cause the Magistrate to dismiss Z. A has committed the offence defined in this section.

b) A falsely informs a public servant that Z has contraband salt in a secret place, knowing such information to be false, and knowing that it is likely that the consequence of the information will be search of Z’s premises, attended with annoyance to Z. A has committed the offence defined in this section.

c) A falsely informs a policeman that he has been assaulted and robbed in the neighbourhood of a particular village. He does not mention the name of any person as one of his assailants, but knows it to be likely that in consequence of this information the police will make enquiries and institute searches in the village to the annoyance of the villagers or some of them. A has committed an offence under this section.”

d) If the person making a false complaint is a public servant, it may be considered whether departmental action should be taken against him as an alternative to prosecution.

e) Under section 195(1)(a) of Code of Criminal Procedure, 19/3 a person making a false complaint can be prosecuted on a complaint lodged with a court of competent jurisdiction by the public servant to whom the false complaint was made or by some other public servant to whom he is subordinate.

f) In respect of complaints received by the Commission, while dealing with the matters if it comes across any such false complaint, the Commission may advise the administrative authority concerned about appropriate action to be taken. Regarding complaints received by the Departments / organisation, the administrative authorities may also, at their discretion, seek the advice of the Commission in respect of such cases involving public servants.

Some complainants, after confirming the complaint made by them, make a request for withdrawing the same or stopping the inquiry / investigation by the Commission / organization. It is to be noted that once a complainant confirms the complaint and action has been initiated for inquiry/ investigation by the Commission / organization, it is not permissible to withdraw / stop such enquiry / investigation even if the complainant withdraws the complaint. The allegations contained in the complaint have to be taken to its logical conclusion irrespective of complainant’s request for withdrawal of the complaint.

As said earlier that, maximum complaints received by an organization are either fake or motivated. But on the other hand, many complaints have actual facts and are genuine in nature. To distinguish between bogus and genuine complaints, CVC has opted the verification mechanism. If one complaint has passed the bar of verification process, then there should be investigation on the said complaint. Vigilance Division of any organization also treats the following aspects under the head of complaint:

1. Information about fraud, corruption, malpractice or misconduct on the part of public servants may flow to the agencies concerned, in the form of a complaint from any of the following or other sources: -

I. Complaints received from employee(s) of the organisation or from the public.

II. Departmental inspection reports, stock verification reports and reports of irregularities in accounts detected during routine Audits of accounts.

III. Scrutiny of annual property returns.

IV. Scrutiny of transactions reported under the Conduct Rules applicable.

V. Audit reports on Government accounts and on the accounts of Central public undertaking and other corporate bodies, etc.

VI. Reports of Parliamentary Committees like the Estimate Committee, Public Accounts Committee and the Committee on Public Undertakings.

VII. Proceedings of the Houses of Parliament.

VIII. Complaints and allegations appearing in the print and electronic media.

IX. Information shared by agencies like CBI, ACB, Lokayukts, etc. (Vigilance Manual 2021, Chapter-III, Para 3.1.1)

2. Information about corruption, malpractices & misconduct may also be gathered by the CVOs by adopting appropriate methods keeping in view the nature of work of the respective organisation. (Vigilance Manual 2021 Chapter-III, Para-3.1.2)

3. Information about corruption and malpractices on the part of Public Servants may also be received from their subordinates or from other public servants, in the form of complaints. (Vigilance Manual 2021 Chapter-III. Para-3.1.3)

4. The audit reports (internal, statutory or by Comptroller & Auditor General) are also authentic sources which reveal not only instances of inappropriate activities but also point out towards specific and serious violation of rules I procedures etc. involving suspected acts of corruption. These reports should be scrutinized by the CVOs and other authorities concerned to look for any possible misconduct. In case, any vigilance angle is perceived, the same has to be brought to the notice of the Commission for further appropriate action, as per Commissions mandate and relevant rules etc. (Vigilance Manual 2021, Chapter-III, Para 3.2 read with Commission's Circular No. 3(v)/99/14 dated 16.05.2001)

The instructions / guidelines issued from time to time in the matter by the DoPT / CVC are as follows: -

1. DoPT's OM No. 104/76/2011-AVD.I dated 18.10.2013 and Commission's Circular No. 07/11/2014 dated 25.11.2014 provide that no action is required to be taken on anonymous complaints irrespective of the nature of the allegations and such complaints need to be filed.

2. Commission’s initial Circular No.3(v)/99/2 dated 29.06.1999 prescribes that no action should be taken on anonymous / pseudonymous complaints and they should just be filed.

3. Commission’s Circular No. 98/DSP/9 dated 31.01.2002 reiterates that under no circumstances, should any investigation be commenced on anonymous / pseudonymous complaints.

4. Commission’s Circular No. 98/DSP/9 dated 11.10.2002 reviewing its earlier instructions of 1999, envisaged that if any Department / organisation proposes to look into the verifiable facts alleged in anonymous / pseudonymous complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organisation. These guidelines stand withdrawn vide CVC Circular dated 25.11.2014.

5. DoPT OM No. 104/76/2011-AVD.I dated 18.10.2013 provides that no action is required to be taken on anonymous complaints irrespective of the nature of the allegations and such complaints need to be simply filed.

6. Commission’s Circular No. 07/11/2014 dated 25.11.2014 withdrawing Circular No. 98/DSP/9 dated 11.10.2002, reiterates previous Circular No.3(v)/99/2 dated 29.6.1999 and Circular No. 98/DSP/9 dated 31.01.2002 to the effect that no action should be taken on anonymous / pseudonymous complaints and such complaints should be filed.

7. As per DoPT complaint handling policy issued vide OM No. 104/76/2011AVD.I dated 18.10.2013, complaints containing vague allegations could also be filed without verification of identity of the complainant even if identity of complainant is mentioned in the complaint.

The Commission has furnished clarifications through Circular No.03/03/16 dated 07.03.2016 to Ministries / Departments on action to be taken on anonymous / pseudonymous complaints which were acted upon and were at different stages of process including disciplinary proceedings before issue of CVC Circular No. 07/11/2014 dated 25.11.2014. Accordingly, it has been clarified that: -

1. No action should be taken on anonymous / pseudonymous complaints in line with Commission’s present Circular No. 07/11/2014 dated 25.11.2014, and such complaints should be filed.

2. However, where the action was initiated on anonymous / pseudonymous complaints prior to the issue of CVC Circular No.3(v)/99/2 dated 29.6.1999, it can be pursued further to its logical end.

3. Where action was initiated on anonymous / pseudonymous complaints between the period 11.10.2002 and 25.11.2014 with prior concurrence of the Commission but is pending, further action is permissible on such complaints.

4. Material / evidence gathered during the investigation / verification of anonymous complaints when the action was prohibited on such complaints (i.e., between 29.6.1999 & 11.10.2002), or where such inquiry was initiated without the approval of the Commission, can be utilised for further initiation of disciplinary proceedings on misconducts noticed in such verification / inquiry.

5. The procedure for handling anonymous / pseudonymous complaints has been modified in view of the fact that complainants who desire to protect their identity now have the protection of the Public Interest Disclosure & Protection of Informers Resolution – 2004 (PIDPIR). Relevant instructions on this have been issued vide DoPT OM No. 104//6/2011- AVD.I dated18.10.2013.

6. Any complaint that does not bear the name and address of the complainant is an anonymous complaint. No action is to be taken on anonymous complaints by the Ministries / Departments / Organisations, irrespective of the nature of allegations, and such complaints should be filed. Such complaints shall not be treated as registered complaints.

7. Similarly, no action is to be taken by the Ministries / Departments / Organisations in the case of complaints which are treated as pseudonymous. A complaint that does not bear the full particulars of the complainant or is unsigned or is not subsequently acknowledged by a complainant as having been made is a pseudonymous complaint. Pseudonymous complaints will be referred to the complainant for confirmation / genuineness verification and if no response is received from the complainant within 15 days of sending the complaint, a reminder will be sent. After waiting for 15 days of sending the reminder, if still no response is received, the said complaint may be filed as pseudonymous by the concerned Ministry / Department. The relevant Circulars on the subject are CVC’s Circular No. 07/11/2014 dated 25.11.2014, DoPT OM No. 104/76/2011-AVDs.I dated 18.10.2013 and CVC Circular No.03/03/16 dated 0/.03.2016.

8. The Commission vide Circular No. 98/DSP/09 dated 24.09.2020 has reiterated that no action shall be taken on anonymous / pseudonymous complaint by Ministries / Departments / Organizations in the light of the guidelines issued vide DoPT OM No. 104/76/2011-AVD.I dated 18.10.2013. The Commission has observed that some Departments / Organizations are still taking cognizance of anonymous complaints despite strict guidelines of DoPT and CVC. Such non-compliance of guidelines by authorities would be viewed seriously by the Commission.

It may be noted that the procedure for handling anonymous / pseudonymous complaints has been modified in view of the fact that complainants who desire to protect their identity now have the protection of the Public Interest Disclosure & Protection of Informers Resolution- 2004 (PIDPIR). Relevant instructions on this have been issued vide DoPT's OM No. 104/76/2011-AVD.1dated 18.10.2013.

To avoid loss of manpower and to handle the complaints purposefully, the Central Vigilance Commission has made clear guidelines to dealt with complaints and also made clear guidelines for the complainant to lodge a purposeful complaint. But in case of high-level corruption or in respect of involvement of a racket/gang, complainants are not interested to disclose their identity due to some obvious reasons. In such cases though the fact of the complaint is true but action could not be taken against the said complaint as the same became anonymous/ pseudonymous one. So, there was a need to protect the life-threat of the complainants so that, the high-level corruptions could be unearthed.

The Hon'ble Supreme Court of India, while hearing the Writ Petition (C) no. 539/2003 relating to the murder of Sh. Satyendra Dubey, directed the Government of India to set up a suitable mechanism for receipt and enactment of complaints from "Whistle-Blowers". Accordingly, Department of Personnel and Training issued Resolution No. 89 dated 21st April,2004, commonly known as Public Interest Disclosure and Protection of Informers Resolution, 2004, resolving to set up a mechanism by which a complainant can lodge a complaint in the prescribed manner and also seek protection against his victimisation for doing so. (Such complainants, called Whistle Blowers, are entitled to non-disclosures of their identity publicly, unless, they themselves do so). The Central Vigilance Commission has been authorised under the PIDPI Resolution, as the Designated Agency to receive complaints from whistle blowers.

The Government of India vide Gazette Notification No. 371/12/2002-AVD-III dated 21.04.2004 read with Corrigendum dated 29.04.2004 notified the Public Interest Disclosure and Protection of Informers (PIDPI) Resolution, 2004, wherein the following provisions relating to the complaints being lodged by Whistle-Blowers have been made: -

a. The Central Vigilance Commission is authorised as the "Designated Agency" to receive written complaints or disclosure on any allegation of corruption or of misuse of office by any employee of the Central Government or of any corporation established by or under any Central Act, Government companies, societies or local authorities owned or controlled by the Central Government.

b. Any public servant or a person including an NGO can make written disclosure to the designated agency except those referred in clauses (a) to (d) of Article 33 of Constitution.

c. The designated agency may call for further information or particulars from the persons making the disclosure.

d. Anonymous complaints shall not be acted upon.

e. The identity of the complainant will not be revealed unless the complainant himself has disclosed his identity.

f. The Head of the Department/Organisation to keep the identity of informant secret if he comes to know about it.

g. The designated agency may call the comments/explanations of the Head of Department/Organisation on the disclosure made.

h. The designated agency may seek the assistance of CBI or the police authorities to complete the investigation pursuant to the complaint received.

i. The designated agency on finding the allegation of misuse of office or corruption substantive, shall recommend appropriate action to the Department or Organisation concerned.

j. If the informant feels that he is being victimised, he may make an application before the designated agency seeking redressal in the matter. The designated agency may give suitable directions to the public servant or the public authority concerned.

k. If on an application or on the basis of information gathered, the designated agency is of the opinion that the complainant or the witness need protection, it shall issue appropriate directions to the Government authorities concerned; and

l. In the event of the identity of the informant being disclosed in spite of the designated agency's directions to the contrary, the designated agency is authorised to initiate appropriate action as per extant regulations against the person or agency making such disclosure.

The DoPT vide Notification No. 371/4/2013-AVD.III dated 14.08.2013 partially amended the PIDPI Resolution, 2004. The amended provisions are as under:

a. The Chief Vigilance Officers of the Ministries or Departments of the Government of India are also authorised as the "Designated Authority" to receive written complaint or disclosure on any allegation of corruption or misuse of office by any employee of that Ministry or Department or of any corporation established by or under any Central Act, Government companies, societies or local authorities owned or controlled by the Central Government and falling under the jurisdiction of that Ministry or the Department.

b. Either on receipt of application from the complainant, or on the basis of the information gathered otherwise, if the designated authority is of the opinion that either the complainant or the witnesses need protection, the designated authority, shall take up the matter with the Central Vigilance Commission, for issuing appropriate directions to the Government authorities concerned.

c. The Central Vigilance Commission (CVC) shall supervise and monitor the complaints received by the designated authority.

In furtherance of the PIDPI Resolution, 2004, Central Vigilance Commission vide Office Order No. 33/5/2004 dated 17.05.2004 issued guidelines and Public Notice regarding the procedure to be followed for filing whistle-blower complaints under the PIDPI Resolution, 2004, to ensure that the identity of complainant is kept secret. The following procedure has been prescribed in the public notice:

a. The complaint should be in a closed/ secured envelope.

b. The envelope should be addressed to Secretary, Central Vigilance Commission and should be super-scribed "Complaint under the Public Interest Disclosure". The complainant should give his/her name and address in the beginning or end of complaint or in an attached letter. (Para 4.2(b) of Vigilance Manual 2021)

c. Commission will not entertain anonymous/ pseudonymous complaints.

d. The text of the complaint should be carefully drafted so as not to give any details or clue as to the complainant's identity. However, the details of the complaint should be specific and verifiable.

e. In order to protect identity of the person, the Commission will not issue any acknowledgement and the whistle-blowers are advised not to enter into any further correspondence with the Commission in their own interest. If any further clarification is required, the Commission will get in touch with the complainant. (Para 4.2(b) o/Vigilance Manual 2021)

f. On the advice of the Commission, in order to maintain confidentiality about the complainant's identity, the Department of Posts vide Circular No. 31-01/2021-PO dated 03.03.2021 has directed all post offices not to insist on the name and address of the complainant. It is mandatory for all post offices. The directions are reproduced as below: -

"Any article, addressed to the CVC as well as CVOs posted with the superannuation "Complaint under the Public Interest Disclosure" or "PIDPI Complaint" on the outside of the envelope of the article, can be accepted for posting registration and speed post service, without the name and complete address including mobile number & email address of the sender".

g. The Commission can also take action against complainants making motivated /vexatious complaints under this Resolution.

a. Complaints received under PIDPI Resolution are opened in a separate section, specially created for dealing with complaints from Whistle-Blowers. The section is called 'Confidential Section' and parallel files (separate file for each complaint) are created after concealing the name and address of the complainant.

b. Pseudonymous/ Anonymous PIDPI complaints will be filed and no action will be taken. The complaints which have been addressed to other/ several authorities are not treated as complaint under PIDPI Resolution and are forwarded by the Confidential Section to the Vigilance Section concerned of the Commission for taking necessary action under Complaint Handling Policy of the Commission.

c. In respect of those complaints which are considered fit for processing under PIDPI Resolution, a letter is sent to the complainant to obtain (a) confirmation as to whether he/ she has made the complaint or not and (b) a certificate that that he I she has not made similar / identical allegation of corruption / misuse of office to any other authorities to qualify as a Whistle Blower Complainant. Prescribed time limit for receiving the confirmation and the certificate from the Complainant is 30 days from the date of receipt of Commission's letter by the complainant. In case of no response within the prescribed time limit, a reminder is issued, giving additional two weeks' time to the complainant for sending confirmation and the certificate, to the Commission. If there is still no response from the complainant, the complaint is sent to the Branch concerned of the Commission for necessary action under Complaint Handling Policy of the Commission.

d. The Commission has decided to discontinue the practice of obtaining NOC from the Whistle Blower/complainant. (Commission's Public Notice dated 30.07.2021)

e. After receiving necessary confirmation from the complainant, the complaint is placed before the Screening Committee for decision.

f. The Screening Committee is headed by the Secretary and the Additional Secretaries of the Commission are members. The Screening Committee examines all complaints and recommends complaints for Investigation and Report (I & R) I Necessary Action (NA) / Filing.

g. When a complaint is put up to the Screening Committee, if it is found that there are certain shortcomings due to which it does not fulfil the eligibility criteria, it will be returned to the complainant, clearly enumerating the reasons for not fulfilling the eligibility criteria. The complaint will then be closed in the Commission. Thereafter, the complainant has the option of either sending a fresh regular complaint to the Central Vigilance Commission under its Complaint Handling Policy or may again lodge a fresh complaint if desired under PIOPI Resolution after removal of the deficiencies. (Commission's Public Notice dated 30.07.2021)

h. The complaints, where necessary action has been recommended by the Screening Committee, are referred to the Vigilance Branch concerned for further action. Complaints recommended for investigation and report is sent to the Vigilance Branch concerned of the Commission for further action after approval of the Commission. The Commission has prescribed a period of 12 weeks from the date of receipt of reference from the Commission, for the organizations to submit investigation report. (Commission's Circular No. 12/09/18 dated 28.09.2018)

i. The complaints/ disclosures already categorized as Non-Public Interest Disclosure and Protection of Informers (Non-PIDPI) complaints/ cases where No Objection Certificate was received from the complainant before issuance of Public Notice dated 30.07.2021 will continue to be processed as per Commission's Public Notice dated 24.04.2019.

i. The PIDPI Resolution dated 21.04.2004 provides for the following provisions for protection of Whistle Blowers: -

a. Clause 6 - If any person is aggrieved by any action on the ground that he is being victimized due to the fact that he had filed a complaint or disclosure, he may file an application before the designated agency i.e. CVC, seeking redressal in the matter, who shall take such action as deemed fit. The designated agency may give suitable directions to the public servant or the public authority concerned as the case may be.

b. Clause 7 - Either on the application of the complainant, or on the basis of the information gathered, if the designated agency is of the opinion that either the complainant or the witnesses need protection, the designated agency shall issue appropriate directions to the Government authorities concerned.

c. Clause 11 - In the event of the identity of the informant being disclosed in spite of the designated agency's directions to the contrary, the designated agency is authorised to initiate appropriate action as per extant regulations against the person or agency making such disclosure.

ii. The Commission, after receipt of representation (s) from Whistle Blowers about threat to their life, takes up the matter with the Ministry of Home Affairs, the Nodal Agency, to undertake the responsibility of providing security cover to the genuine Whistle Blowers. On the advice of the Ministry of Home Affairs, State Government/UTs have appointed Nodal Officers and details of such officers nominated by State Governments are furnished to the Commission from time to time by the Ministry of Home Affairs.

iii. As regards protection against victimisation or harassment within the organisation, the Commission forwards such complaints of Whistle Blowers to the CVO of the organization concerned for appropriate action.

Clause 1A of PIDPI Resolution dated 14.08.2013 (amendments) provides that the Central Vigilance Commission shall supervise and monitor the complaints received by the Designated Authorities. A report on PIDPI complaints received by Designated Authorities, including cases of alleged harassment/victimisation received, are required to be sent to the Commission by the CVOs of the respective Ministries/ Departments.

The Commission has been laying emphasis on timely/ prompt action on complaints in order to ensure that irregularities, if committed, are surfaced at the earliest possible and all preventive/ punitive measures can be taken expeditiously. For this purpose, the Commission has issued guidelines on various occasions, specifying the time limit for dealing with complaints. The same as summaries in the following table: -

1 Timeline for seeking confirmation from complainant before initiating Investigation process. - 15 days

2 If confirmation not received within 15 days reminder to be sent to complainant. (If no response received even after reminder, complaint may be filed treating as pseudonymous complaints.) - 15 days

3 Timeline for submission of Investigation Report to the Commission on Complaints referred by it to the CVOs concerned for investigation. - 3 months (or as may be specified by the Commission, in individual matter)

4 In case, it is felt that it would not be possible to complete the investigation within the specified period, time limit for approaching the Commission for seeking extension of time, with the approval of the competent authority. - 15 days

5 Timeline for submission of investigation report in PIDPI complaints, referred by the Commission. - 12 weeks

6 Timeline for submitting response by CVOs to the Commission in respect of references made by it to CBI/ Ministries for clarification/comments in the matter of complaints. - 6 weeks

7 Timeline for CVOs to scrutinize and decide about action to be taken on the complaints sent by the Commission for necessary action to the CVOs concerned. - 1 month

8 Timeline for giving opinion by the Disciplinary Authority, about existence of vigilance angle in complaint, in case of difference of opinion with CVO - 15 days

So, as per provisions under PIDPI Resolution, 2004, if one complaint received at the Vigilance Division/Section of Circle/Regional level, there is no need to verify its genuineness and investigation against the said complaint is required to be initiate immediately through the available machinery.

Recently the Postal Directorate launched “Vigilance Complaint Mechanism System” (in short term VCMS) portal to handle the vigilance complaints.

When the genuineness of any complaint is established after verification of the said complaint, preliminary investigation at the appropriate level should be conducted immediately:

(a) When one complaint has been received by the authority and found genuine after verification and

(b) Any kind of information/letters/reports from the sources mentioned in the Para 3.1 of Vigilance Manual 2021, Chapter-III received at the appropriate level.

Preliminary Inquiry is conducted for ascertaining and verifying the facts alleged in a complaint. It generally involves collection of documents and other evidence, obtaining statement of witnesses, their verification and scrutiny to bring out the truth. In common parlance, it is also referred to as Vigilance Investigation. Investigation into the criminal offence is conducted by CBI or a Police Officer under the Code of Criminal Procedure, 19/3. The Preliminary Enquiry is thus different from an investigation into criminal offence, as powers under the Code of Criminal Procedure, 19/3 are not vested with the Inquiry Officer.

A. CBI / ACB of UTs: As soon as a decision has been taken by the competent authority to investigate the allegations contained in a complaint, it will be necessary to decide whether the allegations should be enquired into departmentally or whether a police investigation is necessary. As a general rule, investigation into allegations of the types given below should be entrusted to the Central Bureau of Investigation or to the Anti-Corruption Branch in the Union Territories:

Allegations involving offences punishable under law which the Delhi Special Police Establishment are authorised to investigate; such as offences involving bribery, corruption, forgery, cheating, criminal breach of trust, falsification of records, etc.;

B. Possession of assets disproportionate to known sources of income: Cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons; or those involving examination of non-Government records, books of accounts, etc. Other cases of a complicated nature requiring expert police investigation.

C. Local police: In cases in which the allegations are such as to indicate prima facie that a criminal offence has been committed but the offence is one which the Delhi Special Police Establishment are not authorised to investigate, the case should be handed over to the local police authorities.

D. Departmental agency: In cases where allegations relate to a misconduct other than an offence, or to a departmental irregularity or negligence, and the alleged facts are capable of verification or inquiry within the Department / Office, the inquiry / investigation should be made departmentally.

E. Consultation with CBI: In certain cases, the allegations may be of both types. In such cases, it should be decided in consultation with the Central Bureau of Investigation as to which of the allegations should be dealt with departmentally and which should be investigated by the Central Bureau of Investigation.

F. Allegations difficult to segregate: If there is any difficulty in separating the allegations for separate investigation in the manner suggested above, the better course would be to entrust the whole case to the Central Bureau of Investigation.

Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them and a parallel investigation by the Departmental agencies should be avoided. Further action by the Department in such matters should be taken on completion of investigation by the CBI on the basis of their report. However, the departmental agency is not precluded from investigating the non-criminal misconducts in such matters for achieving quick results and if they decide to do so, the CBI should be informed of the non-criminal aspects which the departmental agency is investigating. Further, if the Departmental proceedings have already been initiated on the basis of investigations conducted by the Departmental agencies, the administrative authorities may proceed with such Departmental proceedings. In such cases, it would not be necessary for the CBI to investigate those allegations, which are the subject matter of the Departmental inquiry proceedings, unless the CBI apprehends criminal misconduct on the part of the official(s) concerned. CVC Circular No. 99/VGL/8/ dated 30.09.2005 may be kept in view.

Instances have come to the notice of the Commission that while CBI is investigating allegations made in a complaint against a public servant on issues involving criminal misconduct, the concerned organisation does not take up investigation into other misconducts contained either in the same complaint or in other complaints which are of departmental nature, pending investigation by CBI. It is to be clarified that the concerned organisation shall enquire / investigate on issues which are not being investigated by CBI and take the matter to logical conclusion as per laid down procedure. Further, if CBI is investigating criminal misconduct by a bank employee or a borrower relating to some loan / fraud / forging of accounts, etc., the bank must not wait for CBI to complete its investigation to initiate action for recovery.

The Commission has issued instructions that investigations into criminal misconduct including financial irregularities and frauds should be entrusted to the CBI. Such cases are to be entrusted to the CBI if the allegations (i) are criminal in nature (e.g., bribery, corruption, forgery, criminal breach of trust, possession of assets disproportionate to known source of income, cheating, etc. or (ii) require inquiries to be made from non-official persons; or (iii) involve examination of private records; or (iv) need expert police investigation for arriving at a conclusion; or (v) need investigation abroad. Further, the CVOs of the CPSEs are also required to interact frequently and exchange information with CBI on a quarterly basis. The CPSEs should ordinarily send to the CBI only cases involving transactions not less than 25 lakhs or otherwise possessing national or international ramifications; and other cases are to be sent to the local police authorities.

As a general rule, investigations into criminal matters involving officials of the CPSEs should be entrusted to the Anti-Corruption Branch of CBI with the approval of the CMD. If involvement of officials of the CPSE is prima-facie not evident, the matter should be referred to the Economic Offences Wing of CBI. Criminal matters of the above nature would be referred to the local police / State police only in matters wherein CBI has refused / rejected to take up investigations or where transaction value is less than Rs. 25 lakhs.

In cases of Public Sector Banks, the monetary limits as described in Para to 8.13.3 of Chapter VIII would be followed while referring financial fraud to the CBI and the local / State Police.

Further, CVOs of the CPSEs or PSBs are required to interact frequently and exchange information with CBI on quarterly basis. In their Quarterly Performance Reports, CVO should report regularly to the Commission the details of cases / matters noticed in the CPSEs or PSBs and the action taken status thereon.

All Chief Vigilance Officers, subject to the administrative approval of the Chief Executive concerned, have complete discretion to refer the above types of cases to the CBI. In case of difference of opinion between the CVO and the Chief Executive, matter needs to be referred to the Commission.

In our department, the practice is that, at least Regional/Circle level will take decision whether the case will be referred to the CBI or not for investigation. Logic of the practice is that the HAG Officers are equivalent to the rank of CVO and the Regional Heads are also enjoying powers of the Head of Circle. After decision has been taken by the appropriate level, concerned divisional head is being asked to make correspondences with the CBI Authority and ED Authority for registration of the case.

After it has been decided that the allegations contained in the complaint should be enquired departmentally, the vigilance officer should proceed to make a preliminary enquiry with a view to determining whether there is, prima facie, some substance in the allegations. The preliminary enquiry may be made in several ways depending upon the nature of allegations and the judgment of the enquiry officer, e.g.: -

If the allegations contain information which can be verified from any document or file or any other departmental records, the enquiry / vigilance officer should, without loss of time, secure such records, etc., for personal inspection. If any of the papers examined is found to contain evidence supporting the allegations, such papers should be taken over by him for retention by the vigilance Department to guard against the possibility of available evidence being tampered with. If the papers in question are required for any current action, it may be considered whether the purpose would not be served by substituting authenticated copies of the relevant portions of the records; the original being retained by the enquiry officer in his custody. If that is not considered feasible for any reason, the officer requiring the documents or papers in question for current action should be made responsible for their safe custody after retaining authenticated copies for the purpose of enquiry;

In case, where the alleged facts are likely to be known to other employees of the Department, the enquiry officer should interrogate them orally or ask for their written statements. The enquiry officer should make a full record of the oral interrogation which the person interrogated should be asked to sign in token of confirmation. Wherever necessary, any important facts disclosed during oral interrogation or in written statements should be verified by documentary or collateral evidence to make sure of the facts;

In case, it is found necessary to make inquiries from the employees of any other Government Department or office, the investigating officer may seek the assistance of the Department concerned, through its CVO, for providing facility for interrogating the person(s) concerned and / or taking their written statements;

In certain types of complaints, particularly those pertaining to works, the enquiry officer may find it helpful to make a site inspection, or a surprise check, to verify the facts on the spot and also to take suitable action to ensure that the evidence found there, in support of the allegations, is not disturbed;

If during the course of enquiry, it is found that it will be necessary to collect evidence from non-official persons or to examine any papers or documents in their possession, investigation in the matter may be entrusted to the Central Bureau of Investigation.

In cases where the inquiry is being conducted on a reference made by the Commission under section 8 of the CVC Act, 2003, the assistance of the Commission could also be sought. Under section 11 of the CVC Act, 2003, while conducting any inquiry for the cases under its jurisdiction, the Commission have all the powers of a civil court trying a suit under the Code of Civil Procedure, 1908 and in particular, in respect of following matters namely, (a) summoning and enforcing the attendance of any person from any part of India and examining him on oath; (b) requiring the discovery and production of any document; (c) receiving evidence on affidavits; (d) requisitioning any public record or copy thereof from any court or office; (e) issuing Commissions for the examination of witnesses or other documents; and (f) any other matter which may be prescribed.

Regulation 4 of Central Vigilance Commission (Procedure for Dealing with Complaints and Procedure of Inquiry) Regulations, 2021 may also be referred for conduct of inquiry by CVOs and the standard formats prescribed in the Schedule annexed to the Regulations for issuing various processes may be utilised for the purpose of the inquiry. These standard formats have been derived from Code of Civil Procedure, 1908 and wherever necessary other formats for processes may also be utilised from Code of Civil Procedure, 1908, wherever applicable, with such modifications as deemed necessary.

If the public servant complained against is in-charge of stores, equipment, etc., and there is a possibility of his tampering with the records pertaining to such stores or equipment, the enquiry / vigilance officer may consider whether the public servant concerned should not be transferred immediately to other duties. If considered necessary, he may seek the assistance of the Head of the Department or Office in doing so.

While, normally, the preliminary enquiry will be made by the vigilance officer himself, he may suggest to the administrative authority to entrust the inquiry to any other officer considered suitable in the particular circumstances of the case, e.g., it may be advisable to entrust the conduct of the preliminary enquiry to a technical officer if it is likely to involve examination and appreciation of technical data or documents. Similarly, the administrative authority may entrust the inquiry to an officer of sufficiently higher status if the public servant complained against is of a senior rank.

While conducting the inquiry, it is recommended that the Enquiry Officer may take the help of the Scientific Tools and Forensic Tools to aid the enquiry / investigation, whenever required. It is described in Chapter XI of Vigilance Manual, 2021.

During the course of preliminary enquiry by the Vigilance Department, the public servant concerned may be given an opportunity to say what he may have to say about the allegations against him to find out if he is in a position to give any satisfactory information or explanation. In the absence of such an explanation, the public servant concerned is likely to be proceeded against unjustifiably. It is, therefore, desirable that the enquiry officer tries to obtain the suspect officers’ version of “facts” and why an inquiry should not be held. There is no question of making available to him any document at this stage. Such an opportunity, however, may not be given in cases in which a decision to institute Departmental proceedings is to be taken without any loss of time, e.g., in a case in which the public servant concerned is due to retire or to superannuate soon and it is necessary to issue a charge-sheet to him before his retirement; the facts are not in dispute; officer is not traceable; the officer is deliberately delaying his reports, etc.

On completion of the enquiry process, the officer conducting the enquiry would prepare a self-contained report including the material available to controvert the defence. The enquiry report should contain the explanation of the suspect officer. The fact that an opportunity was given to the officer concerned should be mentioned in the enquiry report even if the officer did not avail of it. The enquiry officer should also take all connected documents in his possession as this becomes very helpful if Departmental action has to be taken against the officer.

The enquiry officer will submit his report to the CVO, who will decide whether on the basis of the facts disclosed in the report of the preliminary enquiry, the complaint should be dropped or whether regular Departmental proceedings should be recommended against the public servant concerned or the administration of a warning or caution would serve the purpose. He will forward the inquiry report to the disciplinary authority, along with his own recommendations, for appropriate decision.

The CVO, while submitting his report / comments to the disciplinary authority in the organisation, may also endorse an advance copy of the inquiry report to the Commission if the officials involved are under the jurisdiction of the Commission, so that it may keep a watch over deliberate attempts to shield the corrupt public servants either by delaying the submission of inquiry report to the Commission or by diluting the gravity of the offences / misconducts. The inquiry report of the CVO should broadly conform to the instructions issued vide Commission’s Circular No. 21/8/09 dated 06.08.2009.

The decision, whether departmental action is to be taken against a public servant should be taken by the authority competent to award appropriate penalty specified in the C.C.S. (C.C.A) Rules, 1965 or relevant Discipline and Appeal Rules. In cases, where during the course of the preliminary inquiry or before a decision is taken on the report of the preliminary inquiry, a public servant is transferred to another post, the decision should be taken by the disciplinary authority of the latter post. The Commission’s advice would, however, be obtained in respect of officer falling under category ‘A’ before the competent authority takes a final decision in the matter. In respect of officer falling under category ‘B’, if there persists an unresolved difference of opinion between the Chief Vigilance Officer and the disciplinary authority concerned about the course of action to be taken, the matter would be reported by the CVO to the Chief Executive for appropriate direction.

As soon as it is decided by the disciplinary authority to institute disciplinary proceedings against the public servant(s) concerned, the complaint should be regarded as having taken the shape of a vigilance case.

Enquiry against an officer on deputation should be carried out by the CVO of the organisation where the misconduct has occurred. However, when enquiry has started against an officer, who is on deputation, by parent Department, it will be appropriate if parent Department sends an intimation to that effect to the borrowing organisation. In such cases, the result of final enquiry should also be sent to the borrowing organisation. Further, where enquiry was initiated by the parent organisation in respect of an officer for a misconduct in the parent organisation and the officer proceeds on deputation, the CVO of the parent organisation shall take the matter to a logical conclusion and not transfer to CVO of the organisation in which the suspect officer is on deputation.

If a misconduct is detected in the borrowing Department / Organization on the part of an officer after his repatriation to his parent Department / Organization, the then borrowing Department / Organization should bring the fact of the matter to the notice of the parent Department / Organization which will decide the further course of action. It should be noted that only the current disciplinary authority under whom an officer is functioning including the parent department, is competent under relevant CDA rules to initiate disciplinary proceedings against him.

Enquiry into the allegations against officers under suspension, or those about to retire should be given the highest priority. It should also be ensured that there is sufficient time for processing the enquiry reports involving retiring and retired employees so that the matter does not get time barred for action (if warranted) under the Pension Rules or Regulations. Sending cases of retiring officials close to their retirement / superannuation to the Commission should be avoided. Such cases may be sent to the Commission preferably three months in advance in the prescribed format duly approved by the competent authority.

If an officer against whom enquiry or investigation is pending, irrespective of whether he has been placed under suspension or not, submits his request for resignation, such request should not normally be accepted or taken. Where, however, the acceptance of resignation is considered necessary in the public interest, because the alleged offence(s) do not involve moral turpitude; or the evidence against the officer is not strong enough to justify the assumption that if the proceedings are continued, the officer would be removed or dismissed from service; or the proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation, the resignation may be accepted with the prior approval of the Head of the Department in the case of holders of Group ‘C’ and ‘D’ posts and that of the Minister-in-charge in respect of Group ‘A’ and ‘B’ posts. Prior concurrence of the Commission should also be obtained, in respect of the officers falling under its jurisdiction, before submitting the case to the Minister-in-charge, if the Commission had advised initiation of Departmental action against the officer concerned or such action had been initiated on the advice of the Commission.

In case of Group ‘B’ officers serving in the Indian Audit and Accounts Department, such a resignation may be accepted with the prior approval of the Comptroller and Auditor General. Approval of the Commission should also be obtained if the Commission has tendered advice in respect of that officer.

If during an enquiry or investigation, the SPE or the CVO finds that a public servant, against whom the Commission’s advice is necessary, has made a full and true disclosure implicating himself and other public servants or members of the public and that such statement is free from malice, the IG / SPE or the CVO, as the case may be, may send his recommendation to the Commission regarding grant of immunity / leniency to such person from the Departmental action or punishment. The Commission will consider the recommendation in consultation with the administrative Ministry / Department / Organisation concerned and advise that authority regarding the course of further action to be taken.

In cases investigated by the CBI, if it is decided to grant immunity to such a person from Departmental action, the Commission will advise the SPE whether to produce him at the appropriate time before a Magistrate of competent jurisdiction for the grant of pardon u/s 337 of Cr.P.C.; or to withdraw prosecution at the appropriate stage u/s 494 of Cr.P.C.

In cases pertaining to the officials against whom Commission’s advice is not necessary, the recommendation for grant of immunity / leniency from Departmental action and for the grant of pardon u/s 337 of Cr.P.C.; or for the withdrawal of prosecution u/s 494 of Cr.P.C may be made to the Chief Vigilance Officer, who will consider and advise the disciplinary authority regarding the course of further action to be taken. If there is a difference of opinion between the SPE and the administrative authorities or between the CVO and the disciplinary authority, the SPE or the CVO, as the case may be, will refer the matter to the Commission for advice.

The intention behind the procedure prescribed above is not to grant immunity / leniency in all kinds of cases but only in cases of serious nature and that too on merits. It is not open to the public servant involved in a case to request for such immunity / leniency. It is for the disciplinary authority to decide in consultation with the Commission or the CVO, as the case may be, in which case such an immunity / leniency may be considered and granted in the interest of satisfactory prosecution of the disciplinary case.

No.006/VGL/022

Government of India Central Vigilance Commission

Satarkta Bhawan, Block ‘A’, GPO Complex, INA,

New Delhi- 110 023

Dated the 28th March 2006

Circular No.16/3/06

Sub: Protection against victimisation of officials of the Vigilance Units of various Ministries/Departments/organisations.

The Commission has viewed seriously certain instances of harassment and attempts at victimisation of vigilance officials of certain organisations. The need to allow the vigilance officials to work independently and freely without any fear, which is the foundation for effective vigilance administration in any organisation, has been recognized since long. In fact, the Committee on Prevention of Corruption (Santhanam Committee) had recommended that “those posted to the Vigilance Organisations should not have the fear of returning to their parent cadre with the possibility of facing the anger and displeasure of those against whom they made inquiries”. The Committee had also recommended that “those working in Vigilance Organisations should have an assurance that good and efficient work in the Vigilance Organisation will enhance their opportunities for promotion and not become a sort of disqualification”.

2. The Commission has considered the problem of possible victimisation of Vigilance officials after they finish their tenure in the Vigilance Department and revert to their normal duties. In the case of CVOs, already, the Commission, as Accepting Authority, is in a position to moderate, if necessary, any biased reporting against the CVO in his ACR. Similarly, the Commission has always been extremely careful and cautious while taking cognizance of complaints against the CVOs and as a matter of principle always obtains the CVOs’ response before coming to any conclusion on the need to investigate such complaints.

3. In order that the required degree of protection is conferred on the Vigilance officials supporting the CVO and keeping in view the spirit of the Santhanam Committee which with commendable foresight had anticipated very clearly some of these issues, the Commission issues the following consolidated instructions in exercise of its powers under Section 8 (1) (h) of the CVC Act:

(i) All personnel in Vigilance Units will be posted only in consultation with and the concurrence of the CVOs. They will be for an initial tenure of three years extendable up to five years. Any premature reversion before the expiry of such tenure will only be with the concurrence of the CVO. The CVO shall bring to the notice of the Commission any deviation from the above.

(ii) The ACR of personnel working in the Vigilance Department will be written by the CVO and reviewed by appropriate authority prescribed under the relevant conduct rules. The remarks in review shall be perused by the CVO and in case he has reservations about the comments made under the review, he shall take it up with the Chief Executive/HOD to resolve the issue. In case he is unable to do this, he shall report the matter to the Commission who will intercede in the matter suitably.

(iii) Since the problem of victimisation occurs, if at all, after the reversion of the personnel to their normal line departments, the Commission would reiterate the following:

(a) On such reversion the vigilance personnel shall not be posted to work under an officer against whom, while working in the vigilance department, he had undertaken verification of complaints or detailed investigation thereafter. Needless to say his ACR shall not be written by such officer/s.

(b) All such Vigilance personnel will be deemed to be under the Commission’s purview for purposes of consultation in disciplinary matters. This is irrespective of their grade. This cover will be extended to a period of not less than five years from the date of reversion from the vigilance department.

(c) All Vigilance personnel on reversion shall be entitled to represent through the CVO and chief executive of the organisation to the Commission if they perceive any victimisation as a consequence of their working in the Vigilance department. This would include transfers, denial of promotion or any administrative action not considered routine or normal. This protection will be extended for a period not less than five years after the reversion of such personnel from the vigilance department.

4. The above instructions may be noted for strict compliance. The CVO should report promptly to the Commission, the details of any real or perceived victimisation of any official who is working in the Vigilance Unit. Similarly, he should also report such instances pertaining to the former officials of the Vigilance Unit, up to a period of five years after they had completed their tenure in the Vigilance Unit. He should also report where such deserving officials are ignored/superseded in matters of promotion.

(V. Kannan) Director

To: All CMDs of Public Sector Undertakings/Public Sector Banks All Chief Vigilance Officers

Suspension, though not a penalty, is to be resorted to sparingly. Whenever a Government servant is placed under suspension not only does the Government lose his services but also pays him for doing no work. It also has a stigma attached to it. Therefore, the decision to place a Government servant under suspension must be a carefully considered decision and each case would need to be considered on merits. [Para 3 of OM No 11012/17/2013-Estt.(A) dated 02.01.2014]

Circumstances under which a Government Servant may be placed under suspension

1. where, a disciplinary proceeding against him is contemplated or is pending; or

2. where, in the opinion of the competent authority, he has engaged himself in activities prejudicial to the interest of the security of the State; or

3. where, a case against him in respect of any criminal offence is under investigation, inquiry or trial. [Rule 10(1) of the CCS (CCA) Rules, 1965]

a. If the Government servant is detained in custody, whether on a criminal charge or otherwise, for a period exceeding 48 hours;

If, in the event of a conviction for an offence, Government servant is sentenced to a term of imprisonment exceeding 48 hours and is not forthwith dismissed or removed or compulsorily retired consequent to such conviction.

Explanation - The period of 48 hours referred to in clause (b) above shall be computed from the commencement of the imprisonment after the conviction and for this purpose, intermittent periods of imprisonment, if any, shall be taken into account. [Rule 10(2) of the CCS (CCA) Rules, 1965]

It shall be the duty of a Government servant who may be arrested for any reason to intimate the fact of his arrest and the circumstances connected therewith to his official superior promptly even though he might have subsequently been released on bail. On receipt of the information from the person concerned or from any other source the departmental authorities should decide whether the facts and circumstances leading to the arrest of the person call for his suspension. Failure on the part of the any Government servant to so inform his official superior will be regarded as suppression of material information and will render him liable to disciplinary action on this ground alone, apart from the action that may be called for on the outcome of the police case against him. [OM No. 39/59/54-Ests.(A) dated 25.02.1955]

b. Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have continued in force on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders. [Rule 10(3) of the CCS (CCA) Rules, 1965]

c. Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the disciplinary authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.

Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case. [Rule 10(4) of the CCS (CCA) Rules, 1965]

d. Further inquiry contemplated in rule 10(4) of the CCS (CCA) Rules, 1965 should not be ordered except in a case when the penalty of dismissal, removal or compulsory retirement has been set aside by a Court of Law on technical grounds without going into the merits of the case or when fresh material has come to light which was not before the Court. A further inquiry into the charges which have not been examined by the Court can, however, be ordered by the departmental authorities under Rule 10(4) ibid depending on the facts and circumstances of each case. [OM No. 11012/24/77-Estt.(A) dated 18.03.1978]

e. A question whether the order of suspension in a case covered under Rule 10(2) of the CCS (CCA) Rules, 1965 has limited operation for the period of detention and not beyond it, was considered by the Supreme Court in the case of Union of India V/s Rajiv Kumar (2003 (5) SCALE 297). Allowing the appeals of the Union of India in this case the Supreme Court has held that the order in terms of Rule 10 (2) is not restricted in its point of duration or efficacy to actual period of detention only. It continues to be operative unless modified or revoked under Sub-Rule 5(c) as provided in Sub-Rule 5(a) of the Rule 10 of the CCS (CCA) Rules, 1965. [OM No. 11012/8/2003-Estt.(A) dated 23.10.2003]

1. Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);

2. Where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;

3. Where the continuance in office of the Government servant will be against the wider public interest [other than those covered by (i) and (ii)] such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;

4. Where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.

NOTE: In the first three circumstances the disciplinary authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established.

a) any offence or conduct involving moral turpitude;

b) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;

c) serious negligence and dereliction of duty resulting in considerable loss to Government;

d) desertion of duty;

e) refusal or deliberate failure to carry out written orders of superior officers.

Note: In respect of the types of misdemeanors specified in sub clauses (c) and (e) discretion has to be exercised with care. [Para 4 of the OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

a) If a case has been registered by the Police against a Government servant under Section 304-B of the IPC [Dowry death], he shall be placed under suspension in the following circumstances by the competent authority by invoking the provisions of Sub-rule (1) of the Rule 10 of the CCS (CCA) Rules, 1965

b) If the Government servant is arrested in connection with the registration of the police case, he shall be placed under suspension immediately irrespective of the period of his detention.

c) If he is not arrested, he shall be placed under suspension immediately on submission of the police report under sub-section (2) of section 173 of the Code of Criminal Procedure, 1973, to the Magistrate, if the report prime-facie indicates that the offence has been committed by the Government servant. [OM No. 11012/8/87-Ests.(A) dated 22.06.1987]

Authority competent to place a Government Servant under suspension are as follows:

a) Appointing Authority, or

b) Any authority to which Appointing Authority is subordinate, or

c) Disciplinary Authority, or

d) Any other authority empowered in that behalf by the President, by general or special order.

Provided that, except in case of an order of suspension made by the Comptroller and Auditor – General in regard to a member of the Indian Audit and Accounts Service and in regard to an Assistant Accountant General or equivalent (other than a regular member of the Indian Audit and Accounts Service), where the order of suspension is made by an authority lower than the appointing authority, such authority shall forthwith report to the appointing authority the circumstances in which the order was made. [Rule 10(1) of CCS (CCA) Rules, 1965]

Supervisory Officers in field offices located outside the Headquarters may, wherever necessary, be empowered to place officers subordinate to them under suspension, subject to the conditions mentioned below, by issuing special order in the name of President in pursuance of Rule 10 of the CCS (CCA) Rules, 1965:

Only Supervisory officers in offices located away from headquarters need be specially empowered to suspend a subordinate officer in case involving gross dereliction of duties. In order to prevent abuse of this power the suspending authority should be required to report the facts of each case immediately to the next higher authority, and all such orders of suspension should become ab initio void unless confirmed by the reviewing authority within a period of one month from the date of orders. [OM No. 7/4/74-Ests.(A) dated 9.08.1974]

Authority competent to issue order regarding Deemed Suspension is the Appointing Authority. [Rule 10(2) of CCS (CCA) Rules, 1965]

Reasons for Suspension, if not indicated in the suspension order itself, should be communicated within three months. [Para 5 of OM No. 11012/17/2013-Estt.A dated 02.01.2014]

An order of suspension made or deemed to have been made may at any time be modified or revoked by the authority which made or is deemed to have made the order or by any authority to which that authority is subordinate. [Rule 10(5) (c) of CCS(CCA) Rules, 1965]

An order of suspension made or deemed to have been made shall be reviewed by the authority competent to modify or revoke the suspension, before expiry of 90 days from the effective date of suspension, on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding 180 days at a time.

An order of suspension made or deemed to have been made shall not be valid after a period of 90 days unless it is extended after review, for a further period before the expiry of 90 days.

Provided that no such review of suspension shall be necessary in the case of deemed suspension, if the Government servant continues to be under detention and in such case the ninety days’ period shall be computed from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later:

Provided further that in a case where no charge sheet is issued under these rules, the total period under suspension or deemed suspension, as the case may be, including any extended period in terms of sub-rule (6) shall not exceed, –

a) two hundred seventy days from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (a) of sub-rule (1); or

b) two years from the date of order of suspension, if the Government servant is placed under suspension in terms of clause (aa) or clause (b) of sub-rule (1) as the case may be; or

c) two years from the date the Government servant detained in custody is released or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later, in the case of deemed suspension under sub-rule (2). [Rule 10(6) & (7) of CCS(CCA) Rules, 1965] [Notification No. GSR 156 dated 19.10.2022]

In cases of prolonged suspension period, the courts have pointed out that the suspension cannot be continued for long and that inspite of the instructions of DOP&T, the Disciplinary Authorities are not finalizing the disciplinary proceedings within the stipulated time. Also, in such cases the Government is unnecessarily paying subsistence allowance without extracting any work and if, on the culmination of the disciplinary proceedings, the charged officer is exonerated from the charges, the Government has to unnecessarily pay the full salary and treat the period of suspension as on duty etc. It is, therefore, desirable that timely review of suspension is conducted in a just and proper manner and that the disciplinary proceedings are finalized expeditiously. [OM No. 11012/17/2013-Estt.A-III dated 18.11.2014]

An order of suspension made or deemed to have been made under this Rule shall be reviewed by the competent authority on recommendation of the Review Committee constituted for the purpose.

The disciplinary authority, the appellate authority and another officer of the level of disciplinary/appellate authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the President is not the disciplinary authority or the appellate authority.

The disciplinary authority and two officers of the level of Secretary/Addl. Secretary/Joint Secretary who are equivalent or higher in rank than the disciplinary authority from the same office or from another Central Government office (in case another officer of same level is not available in the same office), in a case where the appellate authority is the President.

Three officers of the level of Secretary/Addl. Secretary/Joint Secretary who are higher in rank than the suspended official from the same Department/Office or from another Central Government Department/Office (in case another officer of same level is not available in the same office), in a case where the disciplinary authority is the President.

The administrative ministry/department/office concerned may constitute the review committees as indicated above on a permanent basis or ad-hoc basis.

The Review Committee(s) may take a view regarding revocation/continuation of the suspension keeping in view the facts and circumstances of the case and also taking into account that unduly long suspension, while putting the employee concerned to undue hardship, involve payment of subsistence allowance without the employee performing any useful service to the Government. Without prejudice to the foregoing, if the officer has been under suspension for one year without any charges being filed in a court of law or no charge-memo has been issued in a departmental enquiry, he shall ordinarily be reinstated in service without prejudice to the case against him. However, in case the officer is in police/judicial custody or is accused of a serious crime or a matter involving national security, the Review Committee may recommend the continuation of the suspension of the official concerned. [OM No. 11012/4/2003-Estt.(A) dated 07.01.2004]

a). Subsistence Allowance

A Government servant under suspension is not paid any pay but is allowed a Subsistence Allowance at an amount equivalent to the leave salary which the Government servant would have drawn if he had been on leave on half average pay or half pay and in addition dearness allowance, if admissible on the basis of such leave salary.

Where the period of suspension exceeds 3 months, the authority which made or is deemed to have made the order of suspension shall be competent to vary the amount of subsistence allowance for any period subsequent to the period of the first three months as follows:

1) the amount of subsistence allowance may be increased by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of the first 3 months, if in the opinion of the said authority, the period of suspension has been prolonged for reasons to be recorded in writing, not directly attributable to the Government servant;

2) the amount of subsistence allowance, may be reduced by a suitable amount, not exceeding 50% of the subsistence allowance admissible during the period of first 3 months, if, in the opinion of the said authority, the period of suspension has been prolonged due to reasons, to be recorded in writing, directly attributable to the Government servant;

3) the rate of dearness allowance will be based on the increased or, as the case may be, the decreased amount of subsistence allowance admissible under sub-clauses (i) and (ii) above. [FR 53 (1)(ii)(a)]

A Government servant under suspension is also entitled for:

Any other compensatory allowances admissible from time to time on the basis of pay of which the Government servant was in receipt on the date of suspension subject to the fulfillment of other conditions laid down for the drawal of such allowances. [FR 53 (1)(ii)(b)]

No payment shall be made unless the Government servant furnishes a certificate that he is not engaged in any other employment, business, profession or vocation. [FR 53 (2)]

Compulsory Deductions to be enforced - (i) Income Tax (ii) House Rent (License Fee) and allied charges (iii) Repayment of loans and advances taken from Government – rate of recovery to be determined by Head of Department (iv) CGHS contribution (v) CGEGIS subscription

Deductions at the option of the suspended officer - (i) PLI premia (ii) Amounts due to Co-op stores/ Societies (iii) Refund of GPF advance

Deduction NOT to be made - (i) GPF subscription (ii) Amounts due to court attachments (iii) Recovery of loss to Government

Officer under suspension shall be considered by the DPC along with others. However, the recommendations in respect of those under suspension shall be placed in a sealed cover. The sealed cover shall be opened/ not opened (i.e. recommendation contained in the sealed cover shall not be acted upon) depending on the outcome of the disciplinary/ criminal proceedings.

If an officer is suspended subsequent to the meeting of the DPC but before he is actually promoted, then the recommendations would be deemed to have been placed in the sealed cover. [OM No. 22011/4/91-Estt(A) dated 14.09.1992] & [Para 11 of the OM No. OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

If the reporting/ reviewing officer is under suspension when the Confidential Report has become due to be written/ reviewed, it may be got written/ reviewed by the officer concerned within two months from the date of his having been placed under suspension or within one month from the date on which the report was due, whichever is later. An officer under suspension shall not be asked to write/ review Confidential Reports after the time limit specified above. [OM No. 21011/2/78-Estt.(A) dated 01.08.1978]

No officer under suspension should be allowed to write/ review the ACRs of his subordinates if during major part of writing/ reviewing he is under suspension as he might not have full opportunity to supervise the work of his subordinate. [OM No. 21011/8/2000-Estt.(A) dated 25.10.2000]

A Government servant under suspension cannot avail of LTC as he cannot get any leave including casual leave during the period of suspension. As he continues to be in service during the period of suspension, members of his family are entitled to LTC. [Para 12 of the OM No. OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

Leave may not be granted to a Government servant under suspension. [FR-55]

An officer under suspension is regarded as subject to all other conditions of service applicable generally to Government servants and cannot leave the station without prior permission. As such, the headquarters of a Government servant should normally be assumed to be his last place of duty. The order placing an officer under suspension should clearly indicate what his headquarters would be.

However, where an individual under suspension requests for a change of headquarters, there is no objection to a competent authority changing the headquarters if it is satisfied that such a course will not put Government to any extra expenditure like grant of T.A. etc. or other complications. [Para 10 of the OM No. OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

Instructions and guidelines issued vide OM No. 22034/4/2012-Estt(D) dated 02.11.2012 to be adhered to for Promotion issues.

Instructions and guidelines issued vide OM No. 11012/11/2007-Estt.(A) dated 14.12.2007, as amended from time to time. to be adhered to for (i) Empanelment (ii) Any deputation for which clearance is necessary (iii) Appointment to sensitive posts (iv) Assignments to training program (except mandatory training) issues.

Instructions and Guidelines issued vide OM No. 11012/7/2017-Estt.A-III dated 18.02.2020 to be adhered to for Obtaining Passport issues (NOC).

Instructions and Guidelines issued vide OM No. OM No. 11013/8/2015-Estt.A-III dated 27.07.2015 to be adhered to for Private Visit to abroad issues.

Application of a Government servant for appointment, whether by Direct Recruitment, transfer on deputation or transfer, to any other post should not be considered/ forwarded if he is under suspension. [Para 15 of the OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

Where a Government servant who is under suspension submits his resignation, the competent authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation. Normally, as officers are placed under suspension only in cases of grave delinquency, it would not be correct to accept the resignation from an officer under suspension. Exceptions to this rule would be where the alleged offence does not involve moral turpitude or where the evidence against the officer is not strong enough to justify the assumption that departmental proceedings, if continued would result in removal from service/dismissal, or where the departmental proceedings are like to be so protracted that it would be cheaper for the exchequer to accept the resignation. [OM No. 28034/4/94-Estt.(A) daed 31.05.1994] or [Para No. 16(c) of the OM No. 11012/17/2013-Estt.(A) dated 02.01.2014]

It may be that the circumstances of a case are such that, an accused employee should be allowed the option of resigning his appointment in the Department. If so, and if he then voluntarily tenders an unconditional resignation, this should be accepted without comment, subject to the provision of the decision above. [Para. 10, P & T. Manual, Vol. III.]

Where a Government servant, who is under suspension, submits a resignation, the Competent Authority should examine, with reference to the merit of the disciplinary case pending against the Government servant, whether it would be in the public interest to accept the resignation. Normally, as Government servants are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation from a Government servant under suspension Exceptions to this rule would be where the alleged offences do not involve moral turpitude or where the quantum of evidence against the accused Government servant is not strong enough to justify the assumption that if the departmental proceedings we were continued, he would be removed or dismissed from service, or where the departmental proceedings are likely to be so protracted that it would be cheaper to the public exchequer to accept the resignation.

In those cases where acceptance of resignation is considered necessary in the public interest, the resignation may be accepted with the prior approval of the Head of the Department in respect of Groups 'C' and 'D' posts and that of the Minister-in-charge in respect of holders of Groups 'A' and 'B' posts. In so far as Group 'B' officers serving in Indian Audit and Accounts Department are concerned, the resignation of such officers shall not be accepted except with the prior approval of the Comptroller and Auditor-General of India Concurrence of the Central Vigilance Commission should be obtained before submission of the case to the Minister-in-charge / Comptroller and Auditor- General, if the Central Vigilance Commission had advised initiation of departmental action against the Government servant concerned or such action has been initiated on the advice of the Central Vigilance Commission.

A resignation becomes effective when it is accepted and the Government servant is relieved of his duties. If a Government servant who had submitted a resignation, sends an intimation in writing to the appointing authority withdrawing his earlier letter of resignation before its acceptance by the appointing authority, the resignation will be deemed to have been automatically withdrawn and there is no question of accepting the resignation. In case, however, the resignation had been accepted by the appointing authority and the Government servant is to be relieved from a future date, if any request for withdrawing the resignation is made by the Government servant before he is actually relieved of his duties, the normal principle should be to allow the request of the Government servant to withdraw the resignation. If, however, the request for withdrawal is to be refused, the grounds for the rejection of the request should be duly recorded by the appointing authority and suitably intimated to the Government servant concerned. [G.I., Dept. of Per. & Trg., O.M. No. 28034/25/87-Estt. (A), dated the 11th February, 1988.]

A Government servant who retires while under suspension is entitled to provisional pension equal to the maximum pension on the basis of qualifying service up to the date immediately preceding the date on which he was placed under suspension. [Rule 8(4)(a) of the CCS (Pension) Rules, 2021]

Time passed by a Government servant under suspension pending inquiry into conduct shall be counted as qualifying service where, on conclusion of such inquiry, he has been fully exonerated or only a minor penalty is imposed and the suspension is held to be wholly unjustified.

In cases not covered under sub-rule (1), the period of suspension shall not count unless the authority competent to pass orders under the rule governing such cases expressly declares at the time that it shall count to such extent as the Competent Authority may declare.

In all cases of suspension, the competent authority shall pass an order specifying the extent to which, if any, the period of suspension shall count as qualifying service and a definite entry shall be made in the service book of the Government servant in this regard.” [Rule 23 of the CCS (Pension) Rules, 2021]

It shall be open to the Appropriate Authority to withhold permission to a Government Servant under suspension who seeks to retire under FR 56(k) or FR-56(m) or Rule 43 (3) of CCS (Pension) Rule 2021. [FR-56(k) and FR-56(m)] [Rule 43(3) of the CCS (Pension) Rules, 2021]

When a Government servant who has been suspended in reinstated or would have been so reinstated but for his retirement (including premature retirement) while under suspension, the authority competent to order reinstatement shall consider and make a specific order –

a) regarding the pay and allowances to be paid to the Government servant for the period of suspension ending with reinstatement or the date of his retirement (including premature retirement), as the case may be; and

b) whether or not the said period shall be treated as a period spent on duty. [FR-54(B)(1)]

a) If Exonerated

i) where the Competent Authority is of the opinion that the suspension was wholly unjustified, the Government servant may be paid full pay and allowances.

ii) Where the Competent Authority is of the opinion that the proceedings were delayed for reasons directly attributable to the Government servant,it may after notice to the Government servant and considering the representation-if any, order a reduced amount to be paid.

iii) The period of suspension will be treated as period spent on duty for all purposes. [FR 54-B (3) & (4)]

b) Minor Penalty is imposed

Where the proceedings result only in minor penalty being imposed, then the suspension is treated as wholly unjustified and the employee concerned may be paid full pay and allowances for the period of suspension by passing a suitable order under FR 54-B. [O.M. No.11012/15/85-Estt.(A) dt. 03.12.1985]

c) Other than exoneration/ minor penalty

i) The competent authority shall determine the amount to be paid, after notice to Government servant and considering his representation, if any. [FR 54-B(5)]

ii) The period of suspension shall not be treated as duty unless the competent authority specifically directs that it shall be so treated for any specified purpose.

iii) If the Government servant so desires, the period of suspension may be converted into leave of the kind due and admissible. (Note: Such leave can be in excess of 3 months in case of temporary Government servants or 5 years in case of permanent Government servants) [FR 54-B(7)]

NOTE: As per FR 54-B(9) wherever the amount allowed is less than full pay and allowances it shall not be less than the Subsistence Allowance already paid.

Where a Govt servant under suspension dies before the disciplinary proceedings or the court proceedings against him are concluded, the period between the date of suspension and the date of death shall be treated as duty for all purposes and his family shall be paid the full pay and allowances to which he would have been entitled had he not been suspended, for that period subject to adjustment of subsistence allowance already paid. [FR 54-B(2)]

a) Suspension order should normally indicate the grounds for suspension.

b) Where the suspension is on grounds of contemplated proceedings, charge sheet should be served upon the Government servant within 3 months

c) Where charge sheet is not served within 3 months, the reasons for suspension should be communicated to the Government servant immediately on expiry of 3 months from the date of suspension. [DoPT O.M. No.35014/1/81-Estt.(A) dated 9th November, 1982]

Order of Suspension is appealable under Rule 23 (i) of CCS (CCA) Rules, 1965.

Except in case of ‘deemed suspension’ which may take effect from a retrospective date; an order of suspension can take effect only from the date on which it is made. Ordinarily it is expected that the order will be communicated to the Government servant simultaneously.

Difficulty may, however, arise in giving effect to the order of suspension from the date on which it is made if the Government servant proposed to be placed under suspension: a) is stationed at a place other than where the competent authority makes the order of suspension; b) is on tour and it may not be possible to communicate the order of suspension; c) is an officer holding charge of stores and /or cash, warehouses, seized goods, bonds etc. d) A person on leave or who is absent unauthorizedly.

In cases of types (a) and (b) above, it will not be feasible to give effect to an order of suspension from the date on which it is made owing to the fact that during the intervening period a Government servant may have performed certain functions lawfully exercisable by him or may have entered into contracts. The competent authority making the order of suspension should take the circumstances of each such case into consideration and may direct that the order of suspension will take effect from the date of its communication to the Government servant concerned.

In case of (c) it may not be possible for the government servant to be placed under suspension to hand over charge immediately without checking and verification of stores/cash etc. In such cases the competent authority should, taking the circumstances of each case into consideration, lay down that the checking and verification of stores and/or cash should commence on receipt of suspension order and should be completed by a specified date from which suspension should take effect after formal relinquishment of charge.

In case of (d) there should not be any difficulty in the order of suspension operating with immediate effect. It should not be necessary to recall a Government servant if he is on leave for the purpose of placing him under suspension. When a Government servant is placed under suspension while he is on leave, the unexpired portion of the leave should be cancelled by an order to that effect.

In cases in which the Disciplinary Authority decides that proceedings should be initiated for imposing a minor penalty, the Disciplinary Authority will inform the Government servant concerned in writing of the proposal to take action against him by a Memorandum accompanied by a statement of imputations of misconduct or misbehaviour for which action is proposed to be taken, giving him such time as may be considered reasonable, ordinarily not exceeding ten days, for making such representation as the Government servant may wish to make against the proposal. In this Memorandum, no mention should be made of the nature of the penalty which may be imposed. The Memorandum and the statement of imputations of misconduct or misbehaviour should be drafted by the Chief Vigilance Officer / Vigilance Officer. The memorandum should be signed by the Disciplinary Authority and not by any one else on its behalf.

If the competent Disciplinary Authority in respect of the Government servant against whom action proposed to be taken is the President, the file should be shown to the Minister concerned before the charge-sheet is issued and the memorandum should be signed in the name of the President by an officer competent to authenticate orders on behalf of the President under Article 77 (2) of the Constitution.

Rule 16 of the CCS (CCA) Rules, 1965 does not provide for the accused Government servant being given the facility of inspecting records for preparing his written statement of defence. There may, however, be cases in which documentary evidence provides the main grounds for the action proposed to be taken. The denial of access to records in such cases may handicap the Government servant in preparing his representation. Request for inspection of records in such cases may be considered by the Disciplinary Authority on merits.

After taking into consideration the representation of the Government servant or without it if no such representation is received from him by the date specified, the Disciplinary Authority will proceed, after taking into account such evidence, as it may think fit, to record its findings on each imputation of misconduct or misbehaviour.

If as a result of its examination of the case and after taking the representation made by the Government servant into account, the Disciplinary Authority is satisfied that the allegations have not been proved, it may exonerate the Government servant. An intimation of such exoneration will be sent to the Government servant in writing.

In case the Disciplinary Authority is of the opinion that the allegations against the Government servant, stand substantiated, it may impose upon him any of the minor penalties specified in Rule 11 of the CCS (CCA) Rules, 1965.

In cases in which minor penalty proceedings were instituted on the advice of the Central Vigilance Commission, consultation with the Commission at the stage of imposition of the penalty is not necessary if the Disciplinary Authority decides to impose one of the minor penalties specified in Rule11 of the CCS (CCA) Rules, 1965 or other corresponding rules. In such cases a copy of the order imposing minor penalty should be endorsed to the Commission. However, where the Disciplinary Authority decides not to impose any of the minor penalties, consultation with the Commission is necessary.

(CVC Letter No. DSP 14 dated 29.11.80 regarding second stage advice in case of minor penalty) (CVC Circular No. 1/14/70-R dated 20.09.1973 regarding procedure of consultation with Central Vigilance Commission in minor penalty proceedings) (CVC Circular No. 1/14/70-R, dated 20.07.1970 regarding making of a second reference to the Commission)

In case the Government servant is one whose services had been borrowed from another Department or, office of a State Government or a local or other, authority and if other borrowing authority, who has the powers of Disciplinary Authority for the purposes of conducting a disciplinary proceedings against him, is of the opinion that any of the minor penalties specified in clauses (i) to (iv) of Rule 11 of the CCS (CCA) Rules, 1965 should be imposed, it may make such orders on the case as it deems necessary after consultation with the lending authority. In the event of difference of opinion between the borrowing authority and the lending authority, the services of the Government servant will be replaced at the disposal of the lending authority.

Under Rule 16(1) (b) of the CCS (CCA) Rules, 1965, the Disciplinary Authority may, if it thinks fit, in the circumstances of any particular case, decide that an inquiry should be held in the manner laid down in subrules (3) to (23) of Rule 14 of the CCS (CCA) Rules, 1965. The implication of this rule is that all the formalities beginning with the framing of articles of charge, statement of imputation, etc. will have to be gone through. The procedure to be followed will be the same as prescribed for an inquiry into a case in which a major penalty is proposed to be imposed.

Rule 14(1) of the CCS (CCA) Rules, 1965 provides that no order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry has been held in the manner prescribed in Rules 14 and 15 of the CCS (CCA) Rules, 1965 or in the manner provided by the Public Servants (Inquiries) Act, 1850, where an inquiry is held under that Act.

Ordinarily an inquiry will be made in accordance with the provisions of Rule 14 of the CCS (CCA) Rules, 1965. However, in respect of a Government servant who is not removable from his office without the sanction of Government, the Disciplinary Authority, which will be the President in the case of such a Government servant, may decide to make use of the procedure laid down in the Public Servants (Inquiries) Act, 1850 (hereafter referred to as the “Act”) if it is considered that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour on his part.

The choice of the procedure is a matter within the discretion of the Disciplinary Authority. It is not obligatory to proceed under the Act when Government proposes to take action against a government servant covered by the Act. (Venkataraman Vs. Union of India A.I.R. 1954, SC 3/5).

There is no material difference in the scope of the two procedures which is to make a fact-finding inquiry to enable Government to determine the punishment which should be imposed upon the delinquent officer. Like the proceedings under the CCS (CCA) Rules, 1965, the Commission (s) appointed under the Act to make the inquiry do not constitute a judicial tribunal though they possess some of the trappings of a court. The findings of the Commissioner (s) upon the charge are a mere expression of opinion and do not partake of the nature of a judicial pronouncement and the Government is free to take any action it decides on the report.

The holding of an inquiry against a government servant under the Act does not involve any discrimination and will not give him cause to question the conduct of an inquiry against him on that ground within the meaning of Article 14 of the Constitution. A person against whom an inquiry has been held under that Act could not claim a further or a fresh inquiry under the CCS (CCA) Rules, 1965 (Venkataraman Vs. Union of India).

The procedure under the Act is, however, distinguishable from the provisions of the disciplinary rules in that while an inquiry made under the Act is a public inquiry, a Departmental inquiry made under the relevant disciplinary rules is not so. Another distinguishing feature is that the Commissioner(s) appointed under the Act have the power of punishing contempt and obstructions to the proceedings and of summoning witnesses and to compel production of documents. These factors will need to be taken into account in deciding whether in any particular case the procedure of the Act should be adopted or not. An inquiry under the provisions of the Act is generally made in a case in which a high official is involved and it is considered desirable in the circumstances of the case to have a public inquiry. Generally, a judicial officer like a Judge of a High Court is appointed as a commissioner to conduct an inquiry under the Act. That procedure will, however, not be found suitable in a case which might involve the disclosure of information or production of documents prejudicial to national interest or to the security of the State.

As soon as a decision has been taken by the competent authority to start disciplinary proceedings for a major penalty, the Chief Vigilance Officer / Vigilance Officer will draw up the articles of charges on the basis of the material gathered during the Investigation:

1. the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;

2. a statement of the imputations of misconduct or misbehaviour in support of each article of charge which shall contain;

a. a statement of all relevant facts including any admission or confession made by the Government servant; and

b. a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

A charge may be described as the prima-facie proven essence of an allegation setting out the nature of the accusation in general terms, such as, negligence in the performance of official duties, inefficiency, acceptance of sub-standard work, false measurement of work executed, execution of work below specification, breach of a conduct rule, etc. A charge should briefly, clearly and precisely identify the misconduct / misbehaviour. It should also give time, place and persons or things involved so that the public servant concerned has clear notice of his involvement.

The articles of charge should be framed with great care. The following guidelines will be of help: -

1. Each charge should be expressed in clear and precise terms; it should not be vague;

2. If a transaction / event amount to more than one type of misconduct, then all the misconducts should be mentioned;

3. If a transaction / event shows that the public servant must be guilty of one or the other of misconducts, depending on one or the other set of circumstances, then the charge can be in the alternative;

4. A separate charge should be framed in respect of each separate transaction / event or a series of related transactions / events amounting to misconduct, misbehaviour;

5. Multiplication or splitting up of charges on the basis of the same allegation should be avoided;

6. The wording of the charge should not appear to be an expression of opinion as to the guilt of the accused;

7. A charge should not relate to a matter which has already been the subject matter of an inquiry and decision, unless it is based on benefit of doubt or on technical considerations;

8. A charge should not refer to the report on Preliminary Investigation or the opinion of the Central Vigilance Commission;

9. The articles of charge should first give the plain facts leading to the charge and then only at the end of it mention the nature of misconduct / misbehaviour (violation of Conduct Rules, etc.). (CVC Letter No. 4/23/70-R dated 13.12.1973 regarding drafting of chargesheets & CVC Letter No. 4/4/75-R dated 04.01.1977 regarding drafting of charge-sheets in disciplinary cases)

Special care has to be taken while drafting a charge sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the IO would be required to give his specific findings only on the Articles as they appear in the charge sheet. The Courts have struck down charge sheets on account of the charges framed being general or vague (S.K. Rahman Vs. State of Orissa 60 CLT 419). If the charge is that the employee acted out of an ulterior motive, that motive must be specified (Uttar Pradesh Vs. Saligram Sharma AIR 1960 All 543). Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance (Meena Jahan Vs. Deputy Director, Tourism 19/4 2SLR 466 Cal). However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet (Dinabandhu Rath Vs. State of Orissa AIR 1960 Orissa 26 cf; Powari Tea Estate Vs. Barkataki (M.K.) 1965 Lab LJ 102). (CVC Circular No. 3(v)/99/8 dated 05.10.1999: Drafting of Charge–sheet)

The statement of imputation should give a full and precise recitation of the specific and relevant acts of Commission or omission on the part of the Government servant in support of each article of charge including any admission or confession made by the Government servant and any other circumstances which it is proposed to be taken into consideration. A statement that a government servant allowed certain entries to be made with ulterior motive was held to be much too vague. A vague accusation that the Government servant was in the habit of doing certain acts in the past is not sufficient. The statement of imputations should be precise and factual. In particular, in cases of any misconduct / misbehaviour, it should mention the conduct / behaviour expected or the rule violated. It would be improper to call an Investigating Officer’s Report a statement of imputations. While drafting the statement of imputations, it would not be proper to mention the defence and enter into a discussion of the merits of the case. Wording of the imputations should be clear enough to justify the imputations in spite of the likely version of the Government servant concerned. In case of misappropriation /fraud cases, contributory lapses of the Government Servant should invariably be reflected in the statement of imputation otherwise recovery of Government loss will not be recovered from the official. The Judiciary will set aside the disciplinary order.

The documents containing evidence in support of the allegations which are proposed to be listed for production during the inquiry should be carefully scrutinized. All material particulars given in the allegations, such as dates, names, makes, figures, totals of amount, etc., should be carefully checked with reference to the original documents and records.

A number of witnesses are usually examined during the course of the preliminary inquiry and their statements are recorded. The list of such witnesses should be carefully checked and only those witnesses who will be able to give positive evidence to substantiate the allegations should be included in the statement for production during the oral inquiry. The list of witnesses must be prepared in such a way that all the listed documents could be authenticated / verified during the Board of Inquiry.

CVOs of the Ministries / Departments and all other organisations are required to seek the Commission’s first stage advice after obtaining the tentative views of Disciplinary Authorities (DAs) on the reports of the preliminary inquiry / investigation of all complaints involving allegation(s) of corruption or improper motive; or if the alleged facts prima-facie indicate an element of vigilance angle which are registered in the Vigilance Complaint Register involving Category-A officers (i.e., All India Service Officers serving in connection with the affairs of the Union, Group-A officers of the Central Govt. and the levels and categories of officers of CPSUs, Public Sector Banks, Insurance companies, Financial Institutions, Societies and other local authorities as notified by the Government u / s 8(2) of CVC Act, 2003) before the competent authority takes a final decision in the matter.

After enquiry / investigation by the CVO in complaints / matters relating to Category-A officers, as well as composite cases wherein, Category-B officers are also involved, if the allegations, on inquiry do not indicate prima facie vigilance angle / corruption and relate to purely non vigilance / administrative lapses, the case would be decided by the CVO and the DA concerned of the public servant at the level of Ministry / Department / Organisation concerned. The CVO’s reports recommending administrative / disciplinary action in non-vigilance / administrative lapses would, therefore, be submitted to the DA and if the DA agrees to the recommendations of the CVO, the case would be finalised at the level of the Ministry / Department / Organisation concerned. In all such matters, no reference would be required to be made to the Commission seeking its first stage advice. However, in case there is a difference of opinion between the CVO and the DA as to the presence of vigilance angle, the matter as also enquiry reports on complaints having vigilance angle though unsubstantiated would be referred to the Commission for first stage advice.

The above consultation procedure / dispensation would not apply to the complaints received by the Commission and referred for investigation and report to the CVO of the Ministry / Department / Organisation and CVOs would continue to furnish their investigation reports in all matters for seeking first stage advice of the Commission irrespective of the outcome of inquiry / investigation.

Similarly, all written complaints / disclosures (Whistle Blower complaints) received under the Public Interest Disclosure and Protection of Informers’ Resolution (PIDPI), 2004 or the Whistle Blowers Protection Act, 2011 would also continue to be handled / processed by CVOs in terms of the existing prescribed procedures or as amended from time to time. (CVC Circular No. 0//04/15 dated 2/.04.2015 - Consultation with CVC for First stage advice- revised procedure)

When the CVC’s second stage advice is obtained, a copy thereof may be made available to the concerned employee, along with the IO’s report, to give him an opportunity to make representation against IO’s findings and the CVC’s advice, if he desires to do so. (CVC Circular No. 99/VGL/66 dated 28.09.2000- Making available a copy of CVC’s advice to the concerned employee) [Supreme Court judgement dated 13.10.1992 in SBI and others Vs D.C. Aggrawal and another (AIR 1993 SC 119/); Karnataka High Court decision in CWP No. 6558/93]

The Disciplinary Authority will deliver or cause to be delivered a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each charge is proposed to be sustained to the Government servant in person if he is on duty and his acknowledgement taken or by registered post, acknowledgement due. The acknowledgement of the Government servant should be added to the case.

If the Government servant evades acceptance of the articles of charge and / or refuses to accept the registered cover containing the articles of charge, the articles of charge will be deemed to have been duly delivered to him as refusal of a registered letter normally tantamount to proper service of its contents.

A copy of the articles of charge and the accompanying papers will be endorsed to the Special Police Establishment in cases in which disciplinary proceedings are instituted on the basis of an investigation made by them.

The Government servant should be required to submit his reply to the articles of charge (i.e., his written statement of defence) by a date to be specified in the covering memorandum and should also be required to state whether he pleads guilty and whether he desires to be heard in person. Ordinarily the time allowed to the Government servant for submitting his written statement of defence should not exceed 10 days.

In the interest of timely conclusion of Departmental proceedings, as far as possible, copies of the documents and the statements of witnesses relied upon for proving the charges may be furnished to the charged officer along with the charge sheet. If the documents are bulky and the copies cannot be given to the Government Servant, he may be given an opportunity to inspect these documents in about 15 days’ time.

On receipt of the written statement of defence, the Disciplinary Authority should examine it carefully. If all the charges have been admitted by the Government servant, the Disciplinary Authority will take such evidence as it may think fit and record its findings on each charge.

The Disciplinary Authority has the inherent power to review and modify the articles of charges 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. 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 Government servant but about which the Disciplinary Authority is satisfied on the basis of the written statement of defence that there is no further course to proceed with. The exercise of the powers to drop the charges after consideration of the written statement of defence will be subject to the following conditions: -

In cases arising out of investigation by the Central Bureau of Investigation, latter 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. The reasons recorded by the Disciplinary Authority for dropping the charges should also be intimated to the Central Bureau of Investigation.

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 any or all of the charges. (G.I., MHA O.M No. 11012/27/9-Estt(A) dated the 12.03.1981 and OM No. 11012/8/82-Estt. (A) dated the 08.12.1982 regarding the question whether charges can be dropped at the stage of initial written statement of defence)

In many cases the Disciplinary Authority “decides” to disagree with the Commission and then send the case back to the Commission for reconsideration of its advice. This is not quite in order. Once the competent authority has ‘decided’ or ‘resolved’ to differ with the Commission, the case will be treated as one of non-acceptance of the Commission’s advice. (CVC Circular No. 4K/DSP/23 dated 16.04.1981 regarding reference to the CVC seeking reconsideration of its advice)

The Disciplinary Authority has inherent power to review and modify the article of charge after 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. However, IO has no such powers.

During the course of Inquiry, if it is found necessary to amend the charge sheet, it is permissible for the DA to do so, provided a fresh opportunity is given to the CO in respect of the amended / supplementary charge- sheet. The Inquiring Authority may hold the inquiry again from the stage considered necessary so that the CO should have a reasonable opportunity to submit his defence or produce his witness in respect of the amended charge sheet. If there is, however, a major change in charge-sheet, it would be desirable to hold fresh proceedings on the basis of amended charge-sheet.

In the case of M.G. Aggarwal Vs. Municipal Corporation of Delhi decided on 10 July, 1987 [32 (1987) DLT 394] it was held as under:

“It is obvious that the effect of the corrigendum would be to make out a new charge against the petitioner. However, the earlier enquiry was not terminated and new enquiry was not commenced against the petitioner. The corrigendum substantially altered the charge against the petitioner. No new enquiry was held. Mr. S.P. Jain witness was re-called in the continued enquiry on 03/04/1986 and he further gave evidence which supported the corrigendum. The enquiry ultimately resulted in the aforesaid order of dismissal dated 24/0//1986 which was confirmed by an order dated 18/11/1986. The result of this enquiry cannot obviously be sustained. When the charge has been substantially altered, it has to be tried de novo. The enquiry held and continued on the basis of the charge-sheet dated 31/01/1985 and continued by incorporating the distinct charge, the subject- matter of the corrigendum dated 04/03/1986, is no enquiry at all as the petitioner has been denied an opportunity to meet the amended charge, as amended by the corrigendum. He has not been permitted to file reply to the amended charge. This being the case, the petitioner not having been given the opportunity to defend himself, the entire enquiry proceedings are bad in law, and the order of termination dated 24/0//1986 as well as the appellate order dated 18/11/1986 have to be quashed.”

- If the Disciplinary Authority finds that any or all the charges have not been admitted by the Government servant in his written statement of defence or if no written statement of defence is received by him by the date specified, the Disciplinary Authority may itself inquire into such charges or appoint an Inquiring Authority to inquire into the truth of the charges. Though the CCS (CCA) Rules, 1965 permit such an inquiry being made by the Disciplinary Authority, itself, the normal practice is to appoint another officer as Inquiring Authority. It should be ensured that the officers so appointed has no bias and had no occasion to express an opinion in the earlier stages of the case.

The Departmental inquiry may be entrusted to a Commissioner for Department Inquiries (CDI) borne on the strength of Commission or to Departmental Inquiry officer. Where the DA is of the view that it would be better / desirable to appoint the IO from outside the Department, a request could be made to the Commission. The Commission may nominate a CDI or any other suitable person to be appointed as IO.

In all cases pertaining to category “A” officers in respect of whom the Central Vigilance Commission is required to be consulted or in any other case in which disciplinary proceedings for imposing a major penalty have been initiated on the advice of the Central Vigilance Commission, the Commission may nominate a Commissioner for Departmental Inquiries borne on the strength of the Commission or any other officer as it may deemed fit as an IO. In composite cases where non-Gazetted Officers are involved with Gazetted Officer (s) and where CDI has been nominated by the Commission, the inquiry against all officers will be done by the CDI.

In all cases where CDI or any other suitable officer is not nominated by the Commission as IO, the Disciplinary Authority may nominate a Departmental Inquiry Officer to conduct an Inquiry.

It may not be always possible to entrust inquiries against delinquent officers to Gazetted Officers. However, the inquiries should be conducted by an Inquiry 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.

Further, it may be ensured that the officer only with sufficient service experience and seniority is appointed as Presenting Officer.

The Departments / Public Sector Undertakings / Organisations depending upon their need, and if they so desire, may maintain a panel of retired officers from within or outside the Department or Organisation for appointment as Inquiring Authorities, in consultation with the Chief Vigilance Officer. In case, there is difference of opinion between the Disciplinary Authority and the Chief Vigilance Officer about the inclusion of any name in the panel or appointment of any one out of the panel as IO in any case, the CVO may report the matter to the next higher authority, or the CMD for resolution of the difference. If still unresolved, the CVO may refer the matter to the CVC. A case of difference of opinion between the CVO and the CMD, if acting as Disciplinary Authority, may be referred to the Commission for its advice. (MHA OM No. 6/26/60–Ests (A) dated 16.02.1961 regarding precaution to be taken while appointing I.O.) (CVC Office Order No. 34/7/2003 dated 01.08.2003- Utilising the services of outsiders including retired officers for conducting Departmental Inquires)

DoPT has decided that panels of retired officers not below the rank of Deputy Secretary in Central Government and equivalent officer in the State Governments / PSUs to be appointed as the Inquiry Officer for the purpose of conducting departmental inquiries, would be maintained level / rank wise and place-specific by each cadre controlling authority where its offices are located.

The guidelines for appointment of retired officers as Inquiry officers as well as grant of honorarium and other allowances to them issued vide DoPT OM No. 142/40/2015-AVD.I dated 15.09.2017 may be adopted with suitable amendment by other Cadre controlling authorities. (DoPT O.M No. 142/40/2015-AVD.I dated 15.09.2017: Procedure for empanelment of retired officers as the Inquiry Officers for conducting Departmental Inquiries)

However, the grant of honorarium in the case of serving Government servants who have been appointed as Inquiry Officers, whether full time or part time, should be regulated in accordance with the guidelines contained in DoPT OM No. 142/15/2010-AVD-I dated 31.07.2012.

As soon as the Disciplinary Authority has decided upon the person who will conduct the oral inquiry, it will issue an order appointing him as the Inquiring Authority in the form given in Chapter 32 of ‘Handbook for Inquiry officers and Disciplinary Authorities’ issued by DoPT.

The Disciplinary Authority which initiated the proceedings will also appoint simultaneously a government servant or a legal practitioner as the Presenting Officer to present on its behalf the case in support of the articles of charge before the Inquiring Authority. Ordinarily a government servant belonging to the Departmental set up who is conversant with the case will be appointed as the Presenting Officer except in cases involving complicated points of law where it may be considered desirable to appoint a legal practitioner to present the case on behalf of the Disciplinary Authority. An officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer.

While the disciplinary rules under which Departmental inquiries are conducted against Central Government employees and Railway servants provide for the appointment of a Presenting Officer by the Disciplinary Authority to present its case before the Inquiring Authority, the disciplinary rules of certain Public Sector Undertakings do not contain such a provision. As the appointment of a Presenting Officer would help in the satisfactory conduct of Departmental inquiry, the Central Vigilance Commission has advised that even in cases where the disciplinary rules do not contain a specific provision for the appointment of a Presenting Officers, the Disciplinary Authorities may consider appointing a Presenting Officer for presenting the case before the Inquiring Authority.

In order to expedite disposal of Departmental inquiries, the competent authority within its financial powers may consider sanction of suitable honorarium, where inquiries are not part of their sphere of duties, to the Presenting Officer. The amount payable on each occasion may be decided on merits taking into account the quality / volume of work and its quick and expeditious completion.

The grant of honorarium in the case of serving Government servants who have been appointed as Presenting Officers, whether full time or part time, should be regulated in accordance with the guidelines contained in DoPT OM No. 142/15/2010-AVD-I dated 31.07.2012.

As soon as the order of appointment of the Inquiry Officer is issued, the Disciplinary Authority will forward to him the following papers along with that order: -

1. A copy of the articles of charge and the statement of imputations of misconduct or misbehaviour;

2. A copy of the written statement of defence submitted by the Government servant. If the charged Government servant has not submitted a written statement of defence, this fact should be clearly brought to the notice of the Inquiring Authority;

3. List of witnesses by whom the articles of charge are proposed to be sustained;

4. A copy each of the statement of witnesses by whom the articles of charge are proposed to be sustained. In the case of common proceedings, the number of copies of the statements of witnesses should be as many as the number of accused Government servants covered by the inquiry;

5. List of documents by which the articles of charge are to be proved;

6. A copy of the Covering Memorandum to the articles of charge addressed to the Government servant concerned;

7. Evidence proving the delivery of the documents to the Government servants. The date of receipt of the document by the charged officer should be clearly indicated. The date of receipt of the articles of charge by the Government servant will need to be taken into account by the Inquiring Authority in fixing the date of the first hearing;

8. A copy of the order appointing the Presenting Officer;

9. Bio-data of the officer in the prescribed form. (CVC Circular No. 1/11/66-Coord dated 22.11.1966 regarding forwarding of documents/papers to the CDE by the Disciplinary Authorities) (CVC Circular No. 4/42/72-R dated 21.11.1972 regarding forwarding of documents by the Disciplinary Authority to the C.D.Es) (CVC Circular No. 4/3/77-R dated 12.4.1977 regarding forwarding of documents by the Disciplinary Authority to the CDIs)

The above documents and all other relevant paper should be made available to the Presenting Officer at the earliest possible. If the Government servant has submitted a written statement of defence, the Presenting Officer will carefully examine it. If there are any facts which the Government servant has admitted in his statement, without admitting the charges, a list of such facts should be prepared by the Presenting Officer and brought to the notice of the Inquiry Officer at an appropriate stage of the proceedings so that it may not be necessary to lead any evidence to prove the facts which the Government servant has admitted.

Before referring a case to the Inquiry Officer, the Disciplinary Authorities may ensure that they are in possession of the listed documents. While forwarding the case to the Inquiry Officer, the Disciplinary Authorities may specifically mention that all the listed documents are available with them or with the Presenting Officer concerned. (CVC letter No. 20/DSE/1 dated 2/.03.1980 regarding bringing the listed documents by Presenting officers at the regular hearings in the Inquiry) (CVC letter No. 4K/DSP/25 dated 06.05.1981 regarding listed documents in Departmental inquiries)

The basic purpose of appointment of Inquiry Officer is to inquire into the truth of the imputations of misconduct or misbehaviour against a Government Servant. The Departmental inquiry proceedings shall be completed within six months from the date of appointment of IO. The Inquiry Officer shall ensure that:

A. There is no delay in commencement and conduct of inquiry after receipt of IO and PO appointment orders. The preliminary hearing shall be fixed within the prescribed time limit.

B. The date for the preliminary hearing is chosen in such a way so as to provide reasonable opportunity to the parties concerned. For example, if the parties are posted outstation, date of hearing must be fixed so that there is adequate time for the communication to reach the parties and adequate time for the parties for undertaking the travel and reaching the venue.

C. The charged officer is asked in the notice of preliminary hearing itself to nominate his defence counsel and bring the officer during preliminary hearing.

D. Program for conduct of inquiry is prepared in consultation with prosecution and defence.

E. Inspection of listed documents is completed by Presenting Officer immediately after the receipt of appointment order or as ordered by the Inquiring Authority.

F. A day for brief hearing is fixed for deciding relevance of defence documents and witnesses to avoid protracted correspondences.

G. The parties are not allowed to dominate the proceedings by seeking frequent adjournments except in case of illness supported by medical certificates or any unavoidable circumstance.

H. Statements of listed witnesses recorded during the inquiry shall be made available to the charged officer well in time for cross- examination.

I. The request from the charged officer for providing copies of statement of witnesses recorded during investigation but which are not part of listed documents, may not be entertained.

J. Summons to witnesses are issued well in advance. Presenting Officer and charged officer should be made responsible personally to ensure the witnesses presence.

K. Hearing is held and completed on day-to-day basis and no adjournment is allowed on frivolous ground.

L. Ex-parte inquiry may not be held if the charged officer is under suspension and is unable to attend the inquiry proceedings due to non-receipt of subsistence allowance.

M. During main examination, leading question are not allowed.

N. Witness understands the question asked to him during examination/ cross-examination and ensures that the answer given in vernacular is properly translated and recorded.

O. Witness is recalled for re-examination only if it is absolutely necessary in the interest of justice.

P. Production of new evidence to fill up a gap in the evidence is not allowed except when there is an inherent lacuna and defect in the evidence originally produced.

Q. No material from personal knowledge having bearing on the fact of the case or of extraneous nature which was not part of the charge-sheet or in the evidence submitted during inquiry and against which the charged officer has no opportunity to defend himself is imported to case.

R. Inquiry findings are confined to the essence of misconduct attributable to charged official or whether the charge of misconduct is made out against the official or not.

S. Findings in the case are not merely based on the written statements submitted by Prosecution and Defence but on the analysis of evidence produced during the inquiry by the parties.

T. The inquiry conclusion is logical and it should not appear as if mind has already been made up.

U. The principle of natural justice and reasonable opportunity is followed during conduct of Departmental proceedings.

V. The charge sheet is perceived on the basis of the Charge – Fact – Evidence correlation. This will help in analysing and appreciating evidence.

W. Charged Officer is examined in general about the circumstances appearing against him before closing the Inquiry.

X. Submission of written brief by Presenting Officer and Defence Assistant as per time fixed.

Y. Inquiry Report is written and submitted in a fortnight after receipt of written brief.

Presenting Officer is appointed for the purpose of presenting the case of the Disciplinary Authority and to help Inquiring Authority to find truth in the charge(s). Presenting Officer is required to lead the evidence of the Prosecution logically and forcefully before the Inquiring Authority and satisfactorily answer the contentions raised by the Charged Officer. Some of the broad responsibilities of the Presenting Officer are: -

A. Read the case in all its aspects and ramification and evolve a strategy for presentation of prosecution case;

B. Ensure inspection of Listed document as ordered by Inquiring Authority;

C. Produce accepted documents to Inquiring Authority for marking the same as exhibits and for taking them on record;

D. Evolve strategy for presentation of listed prosecution documents and witnesses in a logical sequence to prove the charge (s);

E. Present the prosecution case;

F. Ensure attendance of prosecution witness;

G. Lead the oral evidence on behalf of the Disciplinary Authority;

H. Cross-examine and re-examine the Defence witness;

I. Seek permission of Inquiring Authority to introduce new evidence if considered necessary before conclusion of prosecution case;

J. Prepare and submit the Written Brief;

K. Keep the Disciplinary Authority posted with the progress of Inquiry by sending the brief of work done at the end of each hearing.

Para 17 of Chapter 15 of the Handbook for Inquiry Officers and Disciplinary Authorities issued by ISTM (DoPT) describes in detail the responsibilities of the Presenting Officers during the Regular Hearing.

The CVOs are required to monitor the progress of inquiry proceedings including the quality of performance of Presenting Officers before the IO on a regular basis and keep the disciplinary authorities posted about it. While some of the Presenting Officers (POs) take a stand / position contrary to the stand / position stated in the charge-sheet without the explicit consent of the Disciplinary Authority. In some cases, the POs do not present some of the listed / relied upon documents. Further, in some cases, the POs do not even ensure that the listed witnesses are summoned and produced before the Inquiring Authority for examination and substantiating the position stated in the charge sheet. There are also instances where the POs have not sought additional documents to be produced before the IO even though they were felt essential for sustaining the charges / imputations.

The CVOs need to closely monitor the presentation of the case by the PO before the IO and ensure that the cases are suitably presented before the IO on behalf of the Disciplinary Authority. Further, for any of the observations in the conduct of the proceedings, the CVO is answerable. (CVC Circular No. 09/0//18 dated 2/.0/.2018: CVO to closely monitor presentation of case by Presenting Officer before the IO).

In the copy of the order appointing the Presenting Officer, endorsed to the Government servant concerned, he should be asked to finalize the selection of his Defence Assistant before the commencement of the proceedings. The Government servant may avail himself of the assistance of any other Government servant, as defined in Rule 2 (h) of the CCS(CCA) Rules, 1965, posted in any office either at this headquarters or at the place where inquiry is held. The Government servant may take the assistance of any other Government servant posted at any other station if the Inquiring Authority having regard to the circumstances of the case and for reasons to be recorded in writing so permits.

If the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner, the Government servant will be so informed by the Disciplinary Authority as soon as the Presenting Officer has been appointed so that the Government servant may, if he so desires, engage a legal practitioner to present the case on his behalf before the Inquiry Officer. The Government servant may not otherwise engage a legal practitioner unless the Disciplinary Authority, having regard to the circumstances of a case, so permits. If for example, the facts and the mass of evidence are very complicated and a layman will be at sea to understand the implications thereof and prepare a proper defence, the facility of a lawyer should be allowed as part of the reasonable opportunity.

When on behalf of the Disciplinary Authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or by 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.

No permission is needed by the charged Government servant to secure the assistance of any other Government servant. The latter also is not required to take permission for assisting the accused Government servant. It will, however, be necessary for him to obtain the permission of his controlling authority to absent himself from office in order to assist the charged Government servant during the inquiry. (CVC Circular No. 61/3/6/-C dated 08.01.1968- regarding Government servant assisting the delinquent officer)

Government servants involved in disciplinary proceedings may also take the assistance of retired Government servants. For details refer to chapter 16 of Handbook for Inquiry Officers and Disciplinary Authorities published by DoPT. (DoPT O.M No. 35014/1/77-Estt(A) dated 24.08.1977 as amended by OM No. 11012/19/77-Estt(A) dated 03.06.1978 regarding retired Government servants assisting Government servants involved in disciplinary proceedings) (DoPT O.M No. 11012/11/2002-Estt(A) dated 05.02.2003 regarding Ceiling raised to seven cases for retired Government servants appearing as defence assistants)

The Government servant concerned must be posted in any office at the Headquarters of the CO or in any office where the inquiry is being held.

The person so appointed must not have three pending cases as Defence Assistant.

(Refer Chapter 16 of ‘Handbook for Inquiry officers and Disciplinary Authorities’ issued by DoPT)

The main stages of an oral inquiry are as under:

A. Pre–Hearing Stage: From the appointment of IO and PO till the commencement of hearing. During this stage, the IO and PO examine the documents received by them and ensure their correctness. Besides, the PO prepares for the presentation of the case.

B. Preliminary Hearing Stage: From the time, the parties start appearing before the IO, till the commencement of presentation of evidence. During this stage CO is asked once again as to whether the charges are admitted, inspection of documents take place, CO presents the list of documents and oral witnesses required for the purpose of defence.

C. Regular hearing stage: During this stage, evidence is produced by the parties and Examination-in-chief and Cross Examination of witness is done.

D. Post hearing stage: During this stage, the PO and the CO submit their written briefs to the IO and the IO submits his report to the Disciplinary Authority.

(The details regarding procedure for holding of oral inquiry are available in “Handbook for Inquiry Officers and Disciplinary Authorities” on DoPT website.) (MHA OM No. 6/26/60-Ests(A) dated 08.06.1962 regarding examination of witness on behalf of the accused official) (CVC Circular No. 001/DSP/6 dated 02.11.2001 regarding. ensuring attendance by private witness in Departmental Inquiries)

Para-10 of DoPT OM No. 142/40/2015- AVD.I dated 15.09.201/ states that “The Inquiry Officer shall conduct the inquiry proceedings at a location taking into account the availability of records, station / place where the misconduct occurred as well as the convenience of the witnesses / PO, etc. Video Conferencing should be utilized to the maximum extent possible to minimize travel undertaken by the IO / PO / CO. The cadre controlling authorities will facilitate necessary arrangements for the video Conferencing.”

Accordingly, the authorities concerned may conduct the disciplinary proceedings with the aid of Video Conferencing, subject to the condition that principles of natural justice are fully adhered to, while conducting the proceedings through such digital mode. (DoPT OM No. 11012/03/2020-Estt.A-III dated 05.08.2020: Completion of Disciplinary proceeding through Video Conferencing in the wake of COVID-19 pandemic)

The inquiry in disciplinary proceedings should be stayed only when a court of competent jurisdiction issues an injunction or clear order staying the same or when the Charged Officer has alleged bias against the appointment of the Inquiry Officer. (Refer Chapter 14 of Handbook for Inquiry officers and Disciplinary Authorities issued by DoPT).

In the judgement dated 28.03.2018 [ASIAN RESURFACING OF ROAD AGENCY PVT. LTD. & ANR. Vs. CBI (Criminal Appeal No.13/5-13/6 OF 2013),2018 SCC 225], Hon’ble Supreme Court had ordered for limiting the period of stay granted by a court of law to six months, except in exceptional circumstances. The orders dated 28.03.2018 may be kept in view, while handling / examining court matters in the organisations. In respect of those court cases, where stay was granted by a trial court more than six months ago and also in cases based on CBI’s investigation, which have been kept in abeyance due to court’s orders, the issues may be examined in the light of the aforementioned judgement of the Hon’ble Supreme Court. Appropriate and immediate steps may also be taken, in consultation with the organization’s counsels / Legal Branch to ensure that the stay, if granted by a court of law, is vacated within six months’ period and court proceedings are commenced.

The above position may also be brought to the notice of the Chief Executive and Legal Branches of the organisations concerned for keeping the Supreme Court’s orders in view, while handling Legal / Court matters.

Complete judgement of the Hon’ble Supreme Court may be accessed from the Supreme Court’s website through the link https://sci.gov.in/Supreme Court/2011/2/580/2/580_Judgement_28-Mar-2018.pdf (CVC Circular No. 19/12/20 dated 22.12.2020: Judgement dated 28.03.2018 in Criminal Appeal No. 13/5-13/6 of 2013 passed by Supreme Court of India.) Further to the above, the CBIC in its Letter No. 1080/2/DLA/Tech/Action Take/ 2019 dated 18.0/.2019 has referred to the clarifications received from Ministry of Law & Justice on the applicability of the ratio of judgment dated 28.03.2018 of the Hon’ble Supreme Court of India in Criminal Appeal Nos. 1375-1376 of 2013 (in re: Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs CBI). Due to the divergent views being taken by the field formations, the CBIC sought the legal opinion inter alia on the following query:

The cited Judgment of the Hon’ble Supreme Court dated 28.03.2018 was applicable only to cases where trial in a civil or criminal matter had been stayed by a Superior Court, and as a corollary, whether it was applicable to stays granted on recovery proceedings by CESTAT (Customs Excise and Service Tax Appellate Tribunal) or the High Court; In reply, Ministry of Law and Justice, Department of Legal Affairs has opined that:

“The judgment of the full Bench of the Hon’ble Supreme Court is very clear that stay granted by the higher Court against trial court pending matters either in civil or criminal cases, stay is valid only for 6 months. From this date of judgment to all pending matters of trial Court and if any stay is granted, i.e., after this judgment is valid only for 6 months unless the stay is extended with proper reasons. This direction was given in order to avoid pending cases for several years in trial Court itself and to avoid, the criminals may abscond after getting stay. The ratio decidendi could not be drawn from this judgment was that to avoid exorbitant delay caused in trial Courts either in civil or criminal matters. Therefore, the order of the Hon’ble Supreme Court is applicable only to cases where trial in a civil or criminal matter has been stayed by a superior court.

It is pertinent to mention here that the Hon’ble Supreme Court in the matter of Nahar Industrial Enterprises Ltd Vs Hong Kong and Shanghai Banking Corporation (2209) 8 SCC 646 held that “under Code of Civil Procedure, the terms “tribunal”, “court”, and “civil court” has been used in CPC differently. All “courts” are “tribunals” but all “tribunals” are not “courts”. Therefore, CESTAT will not come under the purview of category of trial court, therefore, the judgment of the Hon’ble Supreme Court will not have any effect on the stay granted by the Tribunal or High Court in recovery proceedings. Hence, the answer to Qn. No. (i) is “yes”.

If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry Officer or otherwise fails or refuses to comply with the provisions of the applicable C.D.A. Rules, the Inquiry Officer may hold the inquiry ex parte. If the Government servant does not take advantage of the opportunity given to him to explain any facts or circumstances which appear against him, he has only to blame himself and the Inquiry Officer has no choice but to proceed ex parte. But if a government servant under suspension pleads his inability to attend the inquiry on account of financial stringency caused by the non- payment of subsistence allowance to him, the proceedings conducted against him ex-parte would be violative of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings. (Supreme Court’s observation in the case of Ghan Shyam Das Srivastava vs. State of Madhya Pradesh - AIR 19/3 SC 1183). Therefore, in cases where recourse to ex-parte proceeding becomes necessary, it should be checked up and confirmed that the Government servant’s inability to attend the inquiry is not because of non-payment of subsistence allowance.

In ex-parte proceeding the full inquiry has to be held i.e., the Presenting Officer will produce documentary evidence and witnesses in the manner outlined in above paragraphs. Notice of each hearing should be sent to the Government servant also. However, if the CO joins the proceedings at a later stage, he cannot be prevented from doing so.

However, if it is not possible to trace the Government servant and serve the charges on him, the Disciplinary Authority may take recourse to Rule 19 (ii) and finalise the proceeding after dispensing with the inquiry on the ground that it is not reasonably practicable to hold one.

Rule 19 of CCS (CCA) Rules, 1965, provides that notwithstanding anything contained in Rules 14 to 18: -

i) where any penalty is proposed to be imposed on a government servant on the ground of conduct which has led to his conviction on a criminal charge, or

ii) where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an inquiry in the manner provided in the CCS (CCA) Rules, 1965, or

iii) where the President is satisfied that in the interest of the security of the State, it is not expedient to hold any inquiry in the manner provided in the CCS (CCA) Rules, 1965, the Disciplinary Authority may consider the circumstances of the case and make such orders thereon as it deems fit.

The Government servant may be given an opportunity of making representation on the penalty proposed to be imposed before any Order is made in a case under Clause (i). The Union Public Service Commission will be consulted where such consultation is necessary before any order is made in any case under this rule.

In a case where a public servant has been convicted by a Court of Law of any penal offence but dealt with under section 3 or 4 of the Probation of Offenders Act, 1958, he shall not suffer any disqualification because of the provisions of section 12 of the Probation of Offenders Act, 1958 which reads as follows: -

“Notwithstanding anything contained in any other law, a person found guilty of an offence and dealt with under the provisions of Section 3 or Section 4 shall not suffer disqualification if any, attaching to a conviction of an offence under such law:

Provided that nothing in the section shall apply to a person who, after his release under section 4, is subsequently sentenced for the original offence”.

The question whether action under Rule 19(i) of the CCS (CCA) Rules, can be taken against a Government servant, who though convicted by a Court of Law but is not to suffer any disqualification because he has been dealt with under section 3 or 4 of the Probation of Offenders Act, has been considered in consultation with the Ministry of Law and on the basis of the Andhra Pradesh High Court’s Judgement in A. Satyanarayana Murthy Vs. Zonal Manager, L.I.C. (AIR 69 A.P. 3/1). It has been decided that the order under Rule 19(i) of CCS (CCA) Rules, 1965 should be passed on the ground of conduct which led to the conviction of the Government servant and not because of the conviction, in view of section 12 of the Probation of the Offenders Act, 1958.

In cases where an inquiry is to be dispensed with in the interest of the security of the State under Rule 19(iii), the order of the President should be obtained in such cases. For this purpose, it will be sufficient if the orders of the Minister-in-charge are obtained as the Supreme Court, in Shamsher Singh’s Case (AIR 19/4 SC 2192) has overruled their earlier decision in the case of Sardari Lal Vs. Union of India and others (Civil Appeal No.5/6 of 1969, [19/1 AIR 154/, 19/1 SCR (3) 461] under which each such case has to be submitted to the President, for orders. The Supreme Court has now clearly pointed out that the Rules of Business and the allocation among the Ministers of the said business, indicate that the rules of business made under Article 77 (3) in the case of President and Article 166 (3) in the case of Governor of the State is the decision of the President or the Governor respectively. In the said judgment it has been held that neither the President nor the Governor has to exercise the executive functions personally. It would thus, be clear that the requirement of proviso (c) to Article 311 (2) of the Constitution and Rule 19 (iii) of the CCS (CCA) Rules, 1965 would be satisfied if the matter is submitted to the Minister- in-charge under the relevant rules of business and it receives the approval of the Minister.

On receipt of the report and the record of the inquiry, the Disciplinary Authority, if it is different from Inquiring Authority, will forward a copy of the inquiry report to the Government servant concerned, giving him an opportunity to make any representation or submission.

If the Disciplinary Authority disagrees with the findings of the Inquiring Authority on any article of charge, it will, while recording its own findings, also record reasons for its disagreement, which will be provided to the Government servant concerned.

On receipt of his reply, or if no reply is received within the time allowed, the Disciplinary Authority will examine the report and record of the inquiry, including the points raised by the concerned Government servant, carefully and dispassionately and after satisfying itself that the Government servant has been given a reasonable opportunity to defend himself, will record its findings in respect of each article of charge saying whether, in its opinion, it stands proved or not.

If after considering the report of Inquiring Authority or after considering the reply of Government Servant to Inquiring Authority report, the Disciplinary Authority arrives at a conclusion which is not in conformity with Commission’s first stage advice, the case will be forwarded to the Commission along with tentative views, for second stage advice / reconsidered advice.

If the Disciplinary Authority considers that a clear finding is not possible or that there is any defect in the inquiry, e.g., the Inquiring Authority had taken into consideration certain factors without giving the delinquent officer an opportunity to defend himself in that regard, the Disciplinary Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report. The Inquiring Authority will, thereupon, proceed to hold the further inquiry according to the provisions of Rule 14 of the CCS (CCA) Rules, 1965, as far as may be.

If the Disciplinary Authority comes to the conclusion that the inquiry was not made in conformity with principles of natural justice, it can also remit the case for further inquiry on all or some of the charges. (Observations of the Rajasthan High Court in Dwarka Chand Vs. State of Rajasthan (AIR 1959, Raj. 38) regarding holding of second Departmental inquiry)

The case for further Inquiry cannot be remitted to new Inquiry Officer. Further or de-novo Inquiry should be done by the same Inquiry Officer if original Inquiry Officer is available.

The discretion in this regard should be exercised by the Disciplinary Authority for adequate reasons to be recorded in writing. A further inquiry may be ordered, for example, when there are grave lacunae or procedural defects vitiating the first inquiry and not because the first inquiry had gone in favour of the delinquent officer. In latter type of cases, the Disciplinary Authority can, if it is satisfied on the evidence on record, disagree with the findings of the Inquiring Authority.

In respect of composite cases wherein the Commission had tendered its first stage advice for all categories of officers involved, second stage advice of the Commission should be sought only if the DA’s opinion is at variance with the Commission’s advice. This procedure would also apply to CBI investigated cases involving officials not falling under the jurisdiction of the CVC wherein the Commission had rendered its advice (cases where there were differences between the CBI and the DA and which were referred to the CVC for advice). (CVC Office order No. 03/01/10 dated 28.01.2010 – Clarification regarding making reference to the Commission for advice on complaints and second stage advice cases)

The consultation with CVO for second stage advice in respect of such cases where the Disciplinary Authority proposes to impose a penalty which is in line with the CVO’s first stage advice in respect of Category ‘B’ officers (in non - CVC referred cases of individual cases or composite cases) may be dispensed with. However, in disciplinary cases of officers, where the DA tentatively proposes to take any action which is at variance with the CVO’s first stage advice would continue to be referred to the CVO for obtaining second stage advice.

The Commission vide Circular No. 08/12/14 dated 03.12.2014 prescribed the procedure on similar lines for processing CVC referable cases of Category A officers as well as composite cases involving Category ‘B’ officers, wherein CVC had tendered first stage advice. (CVC Circular No. 05/0//18 dated 10.0/.2018: Second stage Consultation with CVOs of Departments / Organizations in disciplinary cases of Category ‘B’ officers.)

Following material should be furnished to the Commission while seeking its second stage advice:

1. A copy of the charge sheet issued to the public servant;

2. A copy of the Inquiry Report submitted by the Inquiring Authority (along with a spare copy for the Commission’s records);

3. The entire case records of the inquiry, viz. copies of the depositions, daily order sheets, exhibits, written briefs of the Presenting Officer and the Charged Officer;

4. Comments of the CVO and the Disciplinary Authority on the assessment of evidence done by the Inquiring Authority and also on further course to be taken on the Inquiry Report.

(CVC Circular No. 14/3/06 dated 13.03.2006- Reference to the Commission for its advice- Documents including the draft charge sheet to be enclosed for seeking first stage advice and the documents to be enclosed for seeking second stage advice reg.)

The Commission, therefore, has decided to dispense with consultation for reconsideration of its second stage advice. Hence, no proposal for reconsideration of the Commission’s second stage advice would be entertained. (CVC Office Order No. 10/09/20 dated 09.09.2020: Reference to the Commission for reconsideration of its advice- Dispensing with reconsideration of second stage advice)

The Commission’s second stage advice is tendered based on inputs received from Departments / Organisations which includes all material / information pertaining to the individual disciplinary case. Further in most of the cases, Commission had reiterated its earlier advice tendered at second stage and in almost all such proposals, no new material / additional facts were brought out by the Departments / Organisations to justify any change. Also, in such cases or second stage advice, there is little scope for reconsideration. Such proposals also result in avoidable delays in finalization / issue of final orders by the Disciplinary Authority concerned.

Based on the recommendations of the Hota Committee (Committee of Experts to review the procedure of Disciplinary/Vigilance Inquiries and recommended measures for their expeditious disposal), DoPT, vide its OM No. No.372/19/2011-AVD-Ill (Pt.1) dated the 26th September, 2011 has dispensed with second stage consultation with CVC in disciplinary matters where UPSC is consulted. However, in those cases where consultation with UPSC is not required as per extant rules/instructions, the second stage consultation with CVC should continue.

The disciplinary authority has its power to disagree with the recommendation of the CVC. But he could not finalise the proceedings without further consultation with the CVC. This aspect has been clarified vide CVC circular No.15/4/08 dated 24th April, 2008, as under:

“The Commission has, therefore, decided that no proposal for reconsideration of the Commission’s advice would be entertained unless new additional facts have come to light which would have the effect of altering the seriousness of the allegations/charges levelled against an officer. Such new facts should be substantiated by adequate evidence and should also be explained as to why the evidence was not considered earlier, while approaching the Commission for its advice. The proposals for reconsideration of the advices, if warranted, should be submitted at the earliest but within two months of receipt of the Commission’s advice. The proposals should be submitted by the disciplinary authority or it should clearly indicate that the proposal has the approval of the disciplinary authority.”

All cases, where the Disciplinary Authority (DA) decides to impose a penalty after conclusion of the proceedings and where UPSC consultation is required as per existing rules / instructions, shall not be referred to the CVC for second stage consultation.

The CVC Circular No. 8/12/14 dated 03.12.2014 stipulates that all such cases where the DA proposes to take any action which is at variance with the Commission’s first stage advice would continue to be referred to the Commission for obtaining second stage advice. However, the aforementioned Circular applies only to the disciplinary cases of non- Presidential appointees including officials of CPSEs, Public Sector Banks, and Autonomous Bodies, etc.

The above instructions do not apply to the cases of the officers of Group A services of the Central Government, All India Services (AIS) and such other categories of officers of the Central Government where consultation with UPSC is necessary before imposition of any of the prescribed penalties.

In a situation where on conclusion of the departmental proceedings, DA is of the tentative view that no formal penalty needs to be imposed in respect of officers of Group ‘A’ services of the Central Government, of All India Services (AIS) & such other categories of officers of the Central Government and refers the case for second stage consultation with CVC and if CVC advises imposition of a penalty which the DA on consideration decides not to accept, then this becomes a case of disagreement between DA and CVC which as per standing instructions require resolution by DoPT.

(DoPT O.M No. 3/2/3/201/-AVD.Ill dated 01.03.201/: Procedure for dealing with cases of disagreement between Disciplinary Authority and CVC — instructions regarding consultation with UPSC thereof)

It is in the public interest as well as in the interest of the employees that disciplinary proceedings should be dealt with expeditiously. At the same time, the Disciplinary Authorities must apply their 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. 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 3 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 where consultation with the UPSC and the CVC is required, every effort should be made to ensure that such cases are disposed of as quickly as possible. (DoPT O.M No. 39/43//0-Ests(A) dated 08.01.19/1 regarding taking of expeditious action by Disciplinary Authorities on the reports of Inquiring Authorities) (DoPT OM No. 11012/21/98-Estt(A), dated 11.11.1998 regarding final orders should be passed within three months)

After considering the advice of the UPSC, where the UPSC is consulted, the Disciplinary Authority will decide whether the Government servant should be exonerated or whether a penalty should be imposed upon him and will make an order accordingly.

In determining the quantum of punishment, the Disciplinary Authority should take into account only that material which the Government servant had the opportunity to rebut. The object is to ensure that no material of which the Government servant was not given prior notice and which he was not given adequate opportunity of rebutting or defending himself against should be taken into account for deciding the extent of punishment to be awarded.

The order should be signed by the Disciplinary Authority competent to impose the penalty. In a case in which the competent authority is the President, the order should be signed by an officer authorized to authenticate order issued in the name of the President under Article 77(2) of the Constitution.

The Commission’s view / advice in disciplinary cases is advisory in nature and it is for the DA concerned to take a reasoned decision by applying its own mind. The DA while passing the final order, has to state that the Commission has been consulted and after due application of mind, the final order have been passed. Further, in the speaking order of the DA, the Commission’s advice should not be quoted verbatim. (CVC Circular No. 02/01/09 dated 15.01.2009 regarding need for self- contained speaking and reasoned order to be issued by the Authorities exercising Disciplinary powers) (DoPT O.M No. 134/11/81-AVD-I dated 13.0/.1981 regarding the need for issuing ‘Speaking orders” in disciplinary cases)

The disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under any other corresponding rules, are quasi-judicial in nature and therefore, it is necessary that orders issued by such authorities should have the attributes of a judicial order. The 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 caprice, whim or fancy, or reached on ground of policy or expediency. Such orders passed by the competent Disciplinary / Appellate Authority as do not contain the reasons on the basis whereof the decisions communicated by that order were reached, are liable to be held invalid if challenged in a court of law.

All Disciplinary / Appellate Authorities should issue a self-contained, speaking and reasoned orders conforming to the legal requirements, which must indicate, inter-alia, the application of mind by the authority issuing the order especially when they differ with the advice / recommendation of CVO or Inquiry officer or the Commission as the case may be giving cogent reasons thereof.

In all orders issued in disciplinary matters, the name and designation of DA should also be clearly indicated. (CVC Circular No. 003/DSP/3 dated 15.09.2003-Need for self-contained speaking and reasoned order to be issued by the authorities exercising disciplinary powers) (CVC Circular No. 02/05/2014 dated 19.05.2014-Need for self-contained speaking and reasoned order to be issued by the authorities exercising disciplinary powers)

The order made by the Disciplinary Authority will be communicated to the Government servant together with: -

A. a copy of the report of the Inquiring Authority, if not supplied already;

B. a statement of findings of the Disciplinary Authority on the Inquiring Authority’s report together with brief reasons for its disagreement, if any, with the findings of the Inquiring Authority, if not supplied already;

C. a copy of the advice, if any, given by the UPSC and where the Disciplinary Authority has not accepted the advice of the UPSC a brief statement of the reasons for such non- acceptance.

[DoPT No. 11012/12/2010-Estt(A) dated 12.11.2010 regarding Communicating tentative reasons for disagreement under Rule 15(2)]

A copy of the order will also be sent to: -

A. the Central Vigilance Commission in cases in which the Commission has given advice;

B. the UPSC in cases in which they have been consulted;

C. to the Head of Department or office where the Government servant is employed for the time being unless the Disciplinary Authority itself is the Head of the Department or office; and

D. to the SPE in cases in which action was recommended by the agency.

While passing an order of punishment, the Disciplinary Authority should define the scope of the punishment in clear term.

The CVOs to ensure that wherever it has been finally decided to disagree with the Commission’s advice, reasons for the same are communicated to the Commission along with a copy of final order in the case, to enable the Commission to decide about inclusion of the case in its Annual Report. (CVC Circular No. 006/VGL/098 dated 10.10.2006- difference of opinion with CVC advice)

When a decision is recorded by a Disciplinary Authority (other than the Head of the State) at the conclusion of the Departmental proceedings, the decision is final and cannot be varied by that authority itself or by its successor-in-office before it is formally communicated to the Government servant concerned. The IA and DA are quasi-judicial authority but order / decision of DA is judicial in nature and can be changed only by Appellate Authority.

When a decision is taken by or in the name of the Head of State as a Disciplinary Authority, it is open to Disciplinary Authority to vary or alter the opinions or advice. Once, however, the decision is recorded in the name of the Head of the State, it cannot be varied or altered. This, of course, is subject to the exercise of powers of review or revision expressly conferred upon the Head of the State by rules. The decision once recorded by the Disciplinary Authority can only be changed by Appellate Authority / Revising Authority / Reviewing Authority.

The report of the Inquiring Authority is intended to assist the Disciplinary Authority in coming to a conclusion about the guilt of the Government servant. Its findings are not binding on the Disciplinary Authority who can disagree with them and come to its own conclusion on the basis of its own assessment of the evidence forming part of the record of the inquiry.

In cases where the Disciplinary Authority (DA), on conclusion of disciplinary proceedings, proposes to impose a penalty which is in line with the Commission’s first stage advice in respect of officers falling within the jurisdiction of the Commission, second stage advice of the Commission is not required. Such cases would be dealt at the level of the CVO and DA concerned in the Organisation / Department. However, the CVO should forward a copy of the final order issued by DA in all such cases of officers for Commission’s record. All such cases, where the Disciplinary Authority proposes to take any action which is at variance with the Commission’s first stage advice, would be referred to the Commission for obtaining second stage advice (Para 7.28.3 may also be referred).

The CVO would exercise proper check and supervision over such cases and would ensure that the cases are disposed of expeditiously within the time norms stipulated by the Commission; and will ensure that the punishment awarded to the concerned officer is commensurate with the gravity of the misconduct established on his part. The Commission may depute its officers to conduct vigilance audit through onsite visits to check the compliance. If the Commission comes across any matter, which in its opinion, has not been handled properly, it may recommend its review by the appropriate authority or may give such directions as it considers appropriate. (CVC Circular No. 08/12/14 dated 03.12.2014- Second stage consultation with the CVC in disciplinary cases)

The Commission would convey approval for appointment of CVOs in terms of para 6 of the Resolution, which laid down that the Chief Vigilance Officers will be appointed in consultation with the Commission and no person whose appointment as the CVO is objected to by the Commission will be so appointed.

The Central Vigilance Commissioner would continue to assess the work of the CVO, which would be recorded in the character rolls of the officer concerned in terms of para 7 of the Resolution.

In cases in which the CBI considers that a prosecution should be launched and the sanction for such prosecution is required under any law to be issued in the name of the President, the Commission will tender advice, after considering the comments received from the concerned Ministry / Department / Undertaking, as to whether or not prosecution should be sanctioned.

In cases where an authority other than the President is competent to sanction prosecution and the authority does not propose to accord the sanction sought for by the CBI, the case will be reported to the Commission and the authority will take further action after considering the Commission’s advice. In cases recommended by the CBI for departmental action against such employees as do not come within the normal advisory jurisdiction of the Commission, the Commission will continue to resolve the difference of opinion, if any, between the CBI and the competent administrative authorities as to the course of action to be taken.

The Commission have the power to require that the oral inquiry in any departmental proceedings, except the petty cases, should be entrusted to one of the Commissioners for Departmental Inquiries borne on its strength; to examine the report of the CDI; and to forward it to the disciplinary authority with its advice as to further action.

If it appears that the procedure or practice is such as affords scope or facilities for corruption or misconduct, the Commission may advise that such procedure or practice be appropriately changed, or changed in a particular manner.

The Commission may initiate at such intervals as it considers suitable review of procedures and practices of administration insofar as they relate to maintenance of integrity in administration.

The Commission may collect such statistics and other information as may be necessary, including information about action taken on its recommendations.

The Commission may take initiative in prosecuting persons who are found to have made false complaints of corruption or lack of integrity against public servants.

The Commission’s advice is sought in the following types of cases:

1. Where the official involved belongs to the category under the purview of the Commission (i.e. Group A officer in the Government)

2. Where the case has vigilance angle Hereafter, let us know the cases having vigilance angle. Vigilance Manual (Sixth Edition, 2005) indicates two categories of cases having Vigilance Angle, viz. the cases which indisputably have vigilance angle and the cases which, depending upon the facts and circumstances have vigilance angle.

Para 1.6.1 of Vigilance Manual illustrates the following acts wherein Vigilance angle is obvious:

A. Demanding and/or accepting gratification other than legal remuneration in respect of an official act or for using his influence with any other official.

B. Obtaining valuable thing, without consideration or with inadequate consideration from a person with whom he has or likely to have official dealings or his subordinates have official dealings or where he can exert influence.

C. Obtaining for himself or for any other person any valuable thing or pecuniary advantage by corrupt or illegal means or by abusing his position as a public servant.

D. Possession of assets disproportionate to his known sources of income.

E. Cases of misappropriation, forgery or cheating or other similar criminal offences.

F. Besides, para 1.6.2 provides the following illustrative list of irregularities where circumstances will have to be weighed carefully to take a view regarding the officer’s integrity:

G. Gross or willful negligence;

H. recklessness in decision making;

I. blatant violations of systems and procedures;

J. exercise of discretion in excess, where no ostensible public interest is evident;

K. failure to keep the controlling authority/ superiors informed in time

The manual suggests that in these types of cases, the disciplinary authority with the help of the CVO should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned.

Cases which do not have a vigilance angle will have to be dealt with departmentally. But the cases which have a vigilance angle are required to be submitted before the CVC for their first stage advice before initiating any penalty proceedings against one Group ‘A’ Officer. CVC has vide its Circular No. 21/8/09 dated the 6th August 2009 prescribed revised format for the proposals seeking first stage advice. A copy of the letter is annexed herewith for ease of reference.

Under Section 19 of the Prevention of Corruption Act, 1988, it is necessary for the prosecuting authority to have the previous sanction of the appropriate administrative authority for launching prosecution against a public servant. The section provides that “No court shall take cognizance of an offence punishable under Section 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction” of the authorities mentioned therein

The purpose behind the above provision is ‘to afford a reasonable protection to a public servant, who in the course of strict and impartial discharge of his duties may offend persons and create enemies, from frivolous, malicious or vexations prosecution and to save him from unnecessary harassment or undue hardship which may result from an inadequate appreciation by police authorities of the technicalities of the working of a department’

From the above stated purpose of the need for sanction for prosecution it may be evident that in respect of retired public servants there is no need for any sanction for prosecution. Sanction is to be accorded by the authority competent to remove the delinquent from service.

As per the judgment dated 31 January 2012 of the Hon’ble Supreme Court in Civil appeal No 1193 of 2012 [Dr. Subramanian Swamy Vs Dr. Manmohan Singh and another] the right of the private citizen to file criminal complaint against a corrupt public servant has been up held.

Latest guidelines on the subject were issued vide DoPT OM No. No.372/19/2012- AVD-III dated 3rd May, 2012. Following is the gist of these guidelines:

A. In all cases where the Investigating Agency has requested sanction for prosecution and also submitted a draft charge sheet and related documents along with the request, it will be mandatory for the competent authority to take a decision within a period of 3 months from receipt of request, and pass a Speaking Order, giving reasons for this decision.

B. In the event that the competent authority refuses permission for sanction to prosecute, it will have to submit its order including reasons for refusal, to the next higher authority for information within 7 days. Wherever the Minister-in-charge of the Department is the competent authority and he decides to deny the permission, it would be incumbent on the Minister to submit, within 7 days of passing such order denying the permission, to the Prime Minister for information.

C. It will be the responsibility of the Secretary of each Department/Ministry to monitor all cases where a request has been made for permission to prosecute. Secretaries may also submit a certificate every month to the Cabinet Secretary to the effect that no case is pending for more than 3 months, the reasons for such pendency and the level where it is pending may also be explained.

D. In cases of disagreement where the competent authority proposes to disagree with the investigating agency/CVC, the matter shall be referred to DoP&T and DoP&T's views in such cases must be communicated to the Competent Authority within such time as would enable the competent authority to pass the final speaking order within a period of three months.

Prosecution should be the general rule in all 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 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 there is a difference of opinion between the Department and the CBI whether prosecution should be resorted to in the first instance, the matter should be referred to the CVC for advice.

(MHA O.M No. 39/8/64-Ests (A) dated 04.09.1964 regarding prosecution or Departmental action according to seriousness of the offence in the cases of bribery, corruption or other criminal misconduct)

There is no legal bar to the initiation of Departmental disciplinary action under the rules applicable to the delinquent public servant where criminal prosecution is already in progress and generally there should be no apprehension of the outcome of the one affecting the other, because the ingredients of delinquency / misconduct in criminal prosecution and Departmental proceedings, as well as the standards of proof required in both cases are not identical. In criminal cases, the proof required for conviction has to be beyond reasonable doubt, whereas in Departmental proceedings, proof based on preponderance of probability is sufficient for holding the charges as proved. What might, however, affect the outcome of the subsequent proceedings may be the contradictions which the witnesses may make in their depositions in the said proceedings. It is, therefore, necessary that all relevant matters be considered in each individual case and a conscious view taken whether disciplinary proceedings may not be started alongside criminal prosecution. In a case where the charges are serious and the evidence strong enough, simultaneous Departmental proceedings should be instituted so that a speedy decision is obtained on the misconduct of the public servant and a final decision can be taken about his further continuance in employment.

(CVC Circular No. 1K/DSP/3 dated 03.02.1981 regarding starting of Departmental proceedings along with prosecution)

The Supreme Court in the case of Delhi Cloth and General Mills Ltd. vs. Kushal Bhan (AIR 1960 SC 806) observed that it cannot be said that “principles of natural justice require that an employer must wait for the decision at least of the criminal trial court before taking action against an employee”. They however, added that “if the case is of a grave nature or involves questions of fact or law, which are not simple, it would be advisable for the employer to wait the decision of the trial court, so that the defence of the employee in the criminal case may not be prejudiced”.

Should the decision of the Court lead to acquittal of the accused, it may be necessary to review the decision taken earlier as a result of the Departmental proceedings. A consideration to be taken into account in such review would be whether the legal proceedings and the Departmental proceedings covered precisely the same grounds. If they did not, and the legal proceedings related only to one or two charges i.e., not the entire field of Departmental proceedings, it may not be found necessary to alter the decisions already taken. Moreover, while the Court may have held that the facts of the case did not amount to an offence under the law, it may well be that the Competent Authority in the Departmental proceedings might hold that the public servant was guilty of a Departmental misdemeanour and he had not behaved in the manner in which a person of his position was expected to behave.

The most opportune time for considering the question whether Departmental action should be initiated simultaneously is when the prosecution is sanctioned. At that stage, all the documents are available and taking photostat copies or producing the originals before the Inquiring Authority is not a problem. Once the originals have been admitted by the Charged Officer, the photostat copies duly attested by the Inquiring Officer and / or the Charged Officer could be utilised for further processing the Departmental proceedings, as the originals would be required in Court proceedings.

(DoPT OM No. 11012/6/200/-EsttA dated 01.08.200/ regarding simultaneous action of prosecution in a court and initiation of Departmental proceedings)

As per the judgements of the Hon’ble Supreme Court and guidelines of DoPT issued thereon (OM No. 11012/6/200/-Estt. (A-III) dated 01.08.200/ and 21.0/.2016), there is no bar in conducting simultaneous criminal and departmental proceedings.

Disciplinary Authorities are vested with responsibility to ensure that employees under their control against whom criminal trial is pending are proceeded against forthwith for simultaneous departmental proceedings. Further, a view as to whether simultaneous disciplinary proceedings are to be initiated need to be invariably taken by the Competent Authorities at the time of considering the request for grant of sanction for prosecution itself. However, the disciplinary Authority may withhold departmental proceedings only in exceptional cases wherein the charge in the criminal trial is of grave nature which involves questions of fact and law. In other words, in complex matters where, in case it is not possible to delineate the misconduct for the purpose of RDA. If the charge in the criminal case is of 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. Further, even if stayed at one stage, the decision may require reconsideration, if the criminal case gets unduly delayed.

It may be noteworthy to mention that the Hon’ble Supreme Court in State of Rajasthan vs. B.K Meena & Ors. (1996) 6 SCC 41/ emphasised the need for initiating departmental proceedings and stated as below:

“It must be remembered that interests of administration demand that the undesirable elements are thrown out and any charge of misdemeanour is enquired into promptly. The disciplinary proceedings are meant not really to punish the guilty but to keep the administrative machinery unsullied by getting rid of bad elements. The interest of the delinquent officer also lies in a prompt conclusion of the disciplinary proceedings. If he is not guilty of the charges, his honour should be vindicated at the earliest possible moment and if he is guilty, he should be dealt with promptly according to law. It is not also in the interest of administration that persons accused of serious misdemeanour should be continued in office indefinitely, i.e., for long periods awaiting the result of criminal proceedings.”

Thus, in cases where it is appropriate to initiate disciplinary proceedings along with criminal prosecution, the disciplinary proceedings must be initiated simultaneously.

(CVC Circular No. 99/VGL/08/-3891/6 dated 31.0/.2018: Simultaneous action of prosecution and initiation of departmental proceedings - guidance thereof.)

In the disciplinary cases initiated under Rule 19 (i) of the CCS (CCA) Rules, 1965 consultation with the CVC is not necessary / required where Government servants are convicted by Courts of Law on a criminal charge. (DoPT O.M No. 118/112005-AVD.III dated 08.04.2005: Consultation with the Central Vigilance Commission in cases where action taken under Rule 19 (i) of the CCS(CCA) Rules, 1965)

The Commission, from time to time, has issued guidelines that the CVOs as well as the administrative authorities should prioritize investigation and completion of disciplinary action against delinquent public servants well in advance so that late references for advice are not made to the Commission, especially in respect of officers due for retirement shortly.

It has now been decided that all retirement cases for advice should be received in the Commission, 30 days before the date of the retirement of the officer.

(CVC Office Order No. 13/10/20 dated 01.10.2020: Expeditious disposal of cases involving public servants due to retire shortly)

If a government servant falls within the Commission’s jurisdiction, the advice of Commission would be required and any decision of the Disciplinary Authority at this juncture may be treated as tentative. Such a reference would be required to be made even in respect of an officer / staff who are not within the Commission’s jurisdiction if they are involved along with other officers who are within the jurisdiction of the Commission, as the case would then become a composite case and falls within the Commission’s jurisdiction.

A composite case should be processed as ‘one’ and action against every individual employee should be taken only on Commission’s advice, even if there is only one official who comes within Commission’s jurisdiction.

(CVC Office order No. 2/1/04 dated 08.01.2004: Obtaining Commission’s advice in composite cases)

With regard to category ‘A’ cases, i.e., the cases which are required to be referred to the Commission for advice, all relevant files, including the file on which the case has been examined, are required to be sent to the Commission. In such cases, the Commission would, thus, be in a position to examine all facts and viewpoints of all the authorities concerned who might have commented on various aspects of the case. However, with regard to category ‘B’ cases, which are not required to be sent to the Commission for advice, if there is a difference of opinion between the concerned vigilance officer and the Head of Office, the matter may be reported by the Head of Office to the concerned Chief Vigilance Officer for obtaining orders of the Chief Executive in order to resolve the difference of opinion between the vigilance officer and the Head of office. In case of difference of opinion between the CVO and the CMD in respect of corruption case, involving below Board level appointees in public sector undertaking, it is the responsibility of the CMD to bring the case to the Board.

Any proposal for reconsideration of Commission’s first stage advice should be made to the Commission with the approval of the concerned Disciplinary Authority / Head of the Department / Chief Executive of the Organisation concerned within one month of receipt of the Commission’s first stage advice and that too only in those exceptional individual cases having additional / new material facts. The Commission would not entertain any reconsideration proposal / request of first stage advice received beyond the time limit of one month. (CVC Circular No. 06/08/2020 dated 06.08.2020: Reference to the Commission for reconsideration of the advice)

With a view to bringing about greater uniformity in examining on behalf of the President, the advice tendered by the Commission and taking decisions thereon, it has been laid down that the Department of Personnel and Training should be consulted before the Ministries / Departments finally decide (i.e., after second reference to the CVC for reconsideration), to differ from / not to accept any recommendation of the Commission in those cases which relate to Gazetted Officers for whom the appointing authority is the President. Such a reference to that Department in those cases should be made at the following stages:

i. where the CVC advises at the first stage but the authority concerned does not propose to agree with the advice;

ii. where the authority concerned proposes not to accept or differ from the advice of the CVC at the Second Stage.

(DoPT OM No. 118/2/ /8-AVD-I dated 28.09.19/8 regarding Central Vigilance Commission- Cases of differences from / non- acceptance of the advice of- procedure for consultation with the Department of Personnel and A.R in cases of non-acceptance of recommendation of the CVC and reiterated vide OM No. 119/2/2019-AVD-lll dated 02.09.2019: Central Vigilance Commission - cases of Differences from / non acceptance of the advice of — procedure for consultation with the Department of Personnel and Training)

In vigilance parlance, any source of information about a vigilance misdeed in the organization is a complaint. Para 3.1 of the Vigilance Manual (2005 Ed) defines complaint as “Receipt of information about corruption, malpractice or misconduct on the part of public servants, from whatever source, would be termed as a complaint.” Further para 3.2.1 of the above manual gives a non-exhaustive list of what all constitutes complaint. Thus, an inspection report, press clipping, property transaction reports under the Conduct Rules, etc. fall within the ambit of complaint, if they throw any light on the misdeed in the organization.

Even in the complaints received from the public or the employees of the organization, there used to be umpteen instances when the author might not have intended that to be a complaint but the communication provided valuable information about an organized crime in the organization and therefore it was treated and registered as a complaint. Some such instances are:

(a) A letter was received from a former employee of the organization seeking arrears of salary for the part of the month in which he was relieved on acceptance of his resignation. While trying to take some reference number from the old pay bill, it turned out that somebody was collecting pay in the name of the resigned employee continuously for several months after the said employee resigned from service.

(b) A representation was received from an employee stating that his name was missing in the seniority list of group ‘D’ employees of the organization. While attempting to check the reasons for this omission, it emerged that the employee in question and several others were appointed through forged appointment orders issued by a racket.

On receipt of a complaint, it is checked whether it has a vigilance angle. If it has vigilance angle, it is entered in the appropriate part of the register prescribed by the Vigilance Manual.

Para 1.6.1 of the Vigilance Manual explains what is Vigilance Angle. According to Vigilance Manual, obtaining illegal gratification of any kind by corrupt means or by abusing official position, possession of assets disproportionate to known sources of income, misappropriation, forgery, cheating and other criminal offences are cases having vigilance angle

Cases of unauthorized absence, overstayal, insubordination, use of abusive language, etc. do not have any vigilance angle.

There are some border line cases, such as gross or willful negligence; recklessness in decision making; blatant violations of systems and procedures; exercise of discretion in excess, where no ostensible public interest is evident; failure to keep the controlling authority/superiors informed in time – these are some of the irregularities where the disciplinary authority with the help of the CVO should carefully study the case and weigh the circumstances to come to a conclusion whether there is reasonable ground to doubt the integrity of the officer concerned.

There are two parts of register for recording complaints. One part of the register is meant for registering the complaints in respect of category ‘A’ officers i.e. those in respect of whom the advice of the CVC is required. The other part pertains to Category ‘B’ officers are those in respect of whom CVC advice is not required.

As far as central Government employees are concerned Category ‘A’ refers to Group ‘A’ officers -

If a complaint involves both the categories of officers, it shall be entered in the higher category i.e. category ‘A’.

Para 3.8.1 of the CVC Manual provides that as a general rule, no action is to be taken by the administrative authorities on anonymous/pseudonymous complaints received by them. It is also open to the administrative authorities to verify by enquiring from the signatory of the complaint whether it had actually been sent by him so as to ascertain whether it is pseudonymous.

CVC has also laid down that if any department/organisation proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the Commission seeking its concurrence through the CVO or the head of the organisation, irrespective of the level of employees involved therein.

Besides, any complaint referred to by the Commission is required to be investigated and if it emerges to be a pseudonymous, the matter must be reported to the Commission.

If a complaint is found to be malicious, vexatious or unfounded, departmental or criminal action as necessary should be initiated against the author of false complaints.

A complaint which is registered can be dealt with as follow:

(a) file it without or after investigation; or

(b) to pass it on to the CBI for investigation/appropriate action; or

(c) to pass it on to the concerned administrative authority for appropriate action on the ground that no vigilance angle is involved; or

(d) to take up for detailed investigation by the departmental vigilance agency.

A Complaint will be treated as disposed of either on issue of charge-sheet or final decision for closing or dropping the complaint.

Para 1.6.1 of the Vigilance Manual explains what is Vigilance Angle. According to Vigilance Manual, obtaining illegal gratification of any kind by corrupt means or by abusing official position, possession of assets disproportionate to known sources of income, misappropriation, forgery, cheating and other criminal offences are cases having vigilance angle.

As far as central Government employees are concerned Category ‘A’ refers to Group ‘A’ officers.

Preliminary investigation, also known as Fact Finding Inquiry, is the process of checking the veracity of a complaint.

Following are the purposes of a preliminary investigation:

(i) To check the veracity of the complaint.

(ii) If the complaint is true, to collect evidence in support of the charge.

Preliminary Investigation may be carried out either departmentally or through Police authorities.

Cases involving allegations of misconduct other than an offence, or a departmental irregularity or negligence, and those wherein alleged facts are capable of verification or inquiry within the department/office should be investigated departmentally.

As per the Vigilance Manual, the following types of cases are to be referred to CBI or the police:

1. Allegations involving offences punishable under law which the Delhi Special Police Establishment are authorized to investigate; such as offences involving bribery, corruption, forgery, cheating, criminal breach of trust, falsification of records, possession of assets disproportionate to known sources of income, etc.

2. Cases in which the allegations are such that their truth cannot be ascertained without making inquiries from non-official persons; or those involving examination of non-Government records, books of accounts etc.; and

3. Other cases of a complicated nature requiring expert police investigation.

Where the complaint contains both the above-mentioned types of issues, decision should be taken in consultation with the Central Bureau of Investigation as to which of the allegations should be dealt with departmentally and which should be investigated by the Central Bureau of Investigation. If there is any difficulty in separating the allegations for separate investigation in the manner suggested above, the better course would be to entrust the whole case to the Central Bureau of Investigation.

Parallel investigation by the department as well as CBI should be avoided. Once a case has been referred to and taken up by the CBI for investigation, further investigation should be left to them. Further action by the department in such matters should be taken on completion of investigation by the CBI on the basis of their report. However, if the departmental proceedings have already been initiated on the basis of investigations conducted by the departmental agencies, the administrative authorities may proceed with such departmental proceedings. In such cases, it would not be necessary for the CBI to investigate those allegations, which are the subject matter of the departmental inquiry proceedings, unless the CBI apprehends criminal misconduct on the part of the official(s) concerned.

There are no specific instructions as to who can conduct preliminary investigation. While normally the Vigilance Officers may be entrusted with the task of preliminary investigation, where technical knowledge is required, preliminary investigation may be assigned to an officer having the requisite knowledge. Vigilance Manual recommends that the task may be assigned to an officer of appropriate status if the complaint is against a senior public servant. Seniority/status of the officer conducting preliminary investigation will also be helpful in eliciting information from those who can provide that.

At times it may be advantageous to transfer the suspected public servants from the charge they are holding to pre-empt prospects of the evidence being tampered or destroyed. But this must be done with requisite tact so that the action does not alert the forces which have played mischief, even before the first step is taken in preliminary investigation.

Following steps may be helpful for conduct of preliminary investigation:

(a) Study and analyze the complaint.

(b) List the facts that need to be verified and the evidence in support thereof.

(c) Check whether any site inspection is necessary. [e.g. If the allegation relates to some construction]

(d) Identify if any evidence relating to the complaint is perishable or likely to undergo change in due course of time [If the crop standing on the land is to be verified, it must be done before harvesting; in certain cases, evidence may be lost during monsoon. etc.]

(e) List the documents and persons who can provide information on the matters raised in the complaint.

(f) Whether a surprise check is involved, carry out the same without any delay. Conduct of surprise inspection, where necessary, should be the first visible action of the preliminary investigation. Otherwise, site inspection may be taken up after taking over of documents, as explained in the next sub-para.

(g) In a single swift move, collect all the relevant documents. This is all the more necessary because, once the interested parties come to know that a preliminary investigation is going on, efforts will be made to tamper with the documents. In case any of the documents are required for further action by the authorities concerned, authenticated copies may be made available to the authorities concerned. If the above course of action is not possible for any reason, the documents must be left to the custody of an officer in the relevant branch of the organization making him/her responsible for the safety of the documents.

(h) Where relevant, write to the complainant, if not already done by the administrative authorities. Ask if he/she can provide any additional information or evidence. In case the complaint has been triggered by an aggrieved individual, (say an unsuccessful bidder, unsuccessful candidate for recruitment) the complainant may provide necessary documents with a sense of vengeance!

(i) Talk to the persons who are likely to have information about the issue. Record the proceedings and get it signed by the deposer. This phase of the preliminary investigation is perhaps most challenging because one may come across several reluctant and unwilling persons. The preliminary investigation officer should use all his tact and persuasive skills for eliciting information even from the unwilling witnesses.

(j) While it is not mandatory to talk to the suspected public servant at the stage of preliminary investigation, it may be a desirable course of action in most of the cases.

(k) Study the information collected so as to formulate views as to whether a conclusion could be drawn about the veracity of the allegations.

(l) If no conclusion could not be arrived at, repeat the steps mentioned above.

(m) Prepare investigation report and submit with the original documents collected or created during the investigation.

As the purpose of preliminary investigation is to ascertain truth there is no need for contacting the suspected public servant. As is well known, no penalty can be imposed based on the findings of a preliminary investigation without issue of a formal charge sheet and conduct of formal departmental proceedings.

In the entire gamut of activities during disciplinary proceedings, Preliminary Investigation has a unique feature in that it is completely at the discretion of the administrative authorities. It is not covered by any statutory provision; not even the principles of natural justice are applicable to it. This has been explicitly elucidated by the Hon’ble Supreme Court in Kendriya Vidyalaya Sangathan Vs. Arunkumar Madhavrao Sinddhaye and Anr. [ JT2006(9) SC549, (2007)1SCC283, 2007(3) SLJ41(SC)]

“Therefore, in order to ascertain the complete facts, it was necessary to make enquiry from the concerned students. If in the course of this enquiry the respondent was allowed to participate and some queries were made from the students, it would not mean that the enquiry so conducted assumed the shape of a formal departmental enquiry. No articles of charges were served upon the respondent nor the students were asked to depose on oath. The High Court has misread the evidence on record in observing that articles of charges were served upon the respondent. The limited purpose of the enquiry was to ascertain the relevant facts so that a correct report could be sent to the Kendriya Vidyalaya Sangathan. The enquiry held can under no circumstances be held to be a formal departmental enquiry where the non-observance of the prescribed rules of procedure or a violation of principle of natural justice could have the result of vitiating the whole enquiry.”

If there is a need arises for contacting officials of other department while conducting preliminary investigation, then the investigation officer may seek the assistance of the department concerned, through its CVO, for providing facility for interrogating the person(s) concerned and/or taking their written statements.

Part XIV of the Constitution relates to ‘Services Under the Union and the States’, wherein, Articles 309, 310 and 311 are relevant to disciplinary proceedings. Article 309 is an enabling provision which gives power to the legislature to enact laws governing the conditions of service of the persons appointed in connection with the affairs of the state. Proviso to this Article provides that pending the enactment of the laws, the President may frame rules for the above purpose. The laws as well as the Rules to be framed for the purpose must be subject to the provisions of the Constitution, CCS (CCA) Rules 1965 as well as several other service rules have been framed under the proviso to Article 309 of the Constitution.

Article 310 of the Constitution contains what is known as the Pleasure Doctrine. It provides that the term of appointment of the union Government Servants shall depend upon the pleasure of the President. In fact, the provision applies to all members of defence services, members of Civil Services, members of All India Services, holders of Civil Posts and holders of defence posts. The same Article also provides that the pleasure of the President can be over ridden only by the express provisions of the Constitution and nothing else. Thus, in case there is any express provision relating to the tenure of appointment of a Government Servant, the same will prevail; otherwise, the tenure of appointment will depend upon the pleasure of the President.

Different case studies revealed that, most of the authorities have its confusion in mind about the correct disciplinary authority in respect of any cadre. It is also noticed that, when one official receives charge sheet from any authority the first question raised by him in his appeal/Court case that, improper authority had issued the said charge sheet. In some cases, the claim of the official is found correct. It is required to be clear that, there are two types of penalties prescribed in the Rule-11 of CCS (CCA) Rules, 1965 viz. minor penalties and major penalties. Similarly in Rule-13(2) of CCS (CCA) Rules, 1965, it is clear that, there are two categories of disciplinary authorities. One can impose only the minor penalties where the other can impose any types of penalties. The terminology used to differentiate these two types are lower disciplinary authority and actual/higher disciplinary authority. The lower disciplinary authority can impose minor penalties and also can initiate the major penalty proceedings as per provisions under the Rule-13(2) of CCS (CCA) Rules, 1965.

If the lower disciplinary authority initiates any major disciplinary proceedings (after advice/consultation with the CVO/Commission where ever necessary) against any official, then the same authority has to appoint Inquiry Officer and Presenting Officer to inquire into the charges brought against the said official. After receiving the report of the IO, the said authority has to disagree with the findings of the IO, if any, and forward the report of the IO along with disagreement remarks, if any, to the charged official for submission of his/her representation against the said report within the stipulated period.

As per provisions under Rule-15(2) of CCS (CCA) Rules, 1965, disciplinary authority competent to impose any of the penalties specified in clause (i) to (iv) of Rule-11 of CCS (CCA) Rules, 1965 are supposed to take ancillary action of accepting/rejecting findings of the Inquiring Authority and to take further action to forward the same to the Charged Officer with or without disagreement note. Also Rule-14(21)(a) of CCS (CCA) Rules, 1965 stipulates that, “Where a Disciplinary Authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule-11 (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule-11) has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of Rule-11 should be imposed on the Government servant that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.”

So, if lower disciplinary authority after examining the Inquiry Report submitted by the Inquiring Authority found that, any of the minor penalties is justified in the case instead of any major penalty though major penalty proceedings was initiated against the Government servant, the said authority can issue the disciplinary order instead of forwarding the case to the higher disciplinary authority on the plea that the final decision for major penalty proceedings should be taken by the higher disciplinary authority.

Once a decision has been taken, after a preliminary inquiry, that a prima facie case exists and that formal disciplinary proceedings should be instituted against a delinquent Government servant under the CCS (CCA) Rules, 1965, the Disciplinary Authority will need to decide whether proceedings should be taken under Rule 14 (i.e., for imposing a major penalty) or under Rule 16 (i.e., for imposing a minor penalty).

Certain types of vigilance cases in which it may be desirable to start proceedings for imposing a major penalty are given below as illustrative guidelines:

Cases in which there is a reasonable ground to believe that a penal offence has been committed by a government servant but the evidence forthcoming is not sufficient for prosecution in a court of law, e.g.,

1. Possession of disproportionate assets;

2. Obtaining or attempting to obtain illegal gratification;

3. Misappropriation of Government property, money or stores;

4. Obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration.

5. Falsification of Government records;

6. Gross irregularity or negligence in the discharge of official duties with a dishonest motive.

7. Misuse of official position or power for personal gain;

8. Disclosure of secret or confidential information even though it does not fall strictly within the scope of the official Secrets Act;

9. False claims on the Government like T.A claims, reimbursement claims, etc.

In cases in which the institution of proceedings is advised by the Central Vigilance Commission, the Commission will also advise, keeping in view the gravity of the allegations, whether proceedings should be initiated for the imposition of a major penalty or a minor penalty.

The term Disciplinary Authorities refers to such authorities who have been entrusted with powers to impose any penalty on the employees. In respect of the organizations falling under the purview of CCS (CCA) Rules 1965, the term Disciplinary Authority is defined in Rule 2 (g) of the CCA Rules as the authority competent to impose on a government servant any of the penalties specified in Rule 11. In this Handbook, CCS (CCA) Rules 1965 is henceforth referred to as “the Rules”

Disciplinary authority is defined with reference to the post held by the employee. Various Disciplinary authorities are specified in Rule 12 of the Rules. Thus, there may be more than one disciplinary authority in every organization.

Normally, there are two categories of Disciplinary Authorities viz. those who can impose all penalties on the employees and the authorities who can impose only minor penalties.

Although it is not explicitly stated anywhere, main responsibility of the Disciplinary Authority is to ensure discipline in the organization. Towards this, the disciplinary authorities are required to identify acts of indiscipline and take appropriate remedial action such as counseling, cautioning, admonition, imposition of penalties, criminal prosecution, etc.

Appointing Authorities are empowered to impose major penalties. It may be recalled that Article 311 clause (1) provides that no one can be dismissed or removed from service by an authority subordinate to the Authority which appointed him. In fact, under most of the situations, the powers for imposing major penalties are generally entrusted to the Appointing Authorities. Thus, Appointing Authorities happen to be disciplinary authorities. However, there may be other authorities who may be empowered only to impose minor penalties. Such authorities are often referred to as lower disciplinary authorities for the sake of convenience.

CCA Rule 2(a) lays down the procedure for determining the Appointing Authority in respect of a person by considering four authorities. Besides, it must also be borne in mind that Appointing Authority goes by factum and not by rule. i.e. where an employee has been actually appointed by an authority higher than one empowered to make such appointment as per the rules, the former shall be taken as the Appointing Authority in respect of such employee.

The term Disciplinary Authority has been used to signify any authority who has been empowered to impose penalty. Thereby the term includes appointing authorities also.

Disciplinary authorities are expected to act like a Hot Stove, which has the following characteristics:

Advance warning - One may feel the radiated heat while approaching the Hot stove. Similarly, the Disciplinary Authority should also keep the employees informed of the expected behavior and the consequences of deviant behavior.

Consistency - Hot stove always, without exception, burns those who touch it. Similarly, the disciplinary authority should also be consistent in approach. Taking a casual and lenient view during one point of time and having rigid and strict spell later is not fair for a Disciplinary Authority.

Impersonal - Hot stove treats all alike. It does not show any favouritism or spare anybody. Similarly, the disciplinary authority should treat all employees alike without any discrimination. [You may feel that past good conduct of the delinquent employee is taken into account while deciding the quantum of penalty. This is not in contravention of the rule of impersonal approach. Even past conduct has to be taken into account in respect of all the employees, without discrimination.]

Immediate action - Just as the hot stove burns the fingers of those who touch it without any time lag, the disciplinary authority is also expected to impose penalty without delay. This will make the delinquent employee link the misconduct to the penalty; besides it also sends a message that misconduct will be appropriately dealt with.

[The rule is attributed to Douglas McGregor who is better known for his ‘X’ and ‘Y’ theories of Management]

When you try to find out who is your disciplinary authority, firstly, it must be remembered that the Disciplinary authority is determined with reference to the employee proceeded against. Schedule to the Rules 1965 lay down the details of the disciplinary authorities in respect of various grade of employees in different services in the Government. The President, the Appointing Authority, the Authority specified in the Schedule ot the Rules (to the extent specified therein) or by any other authority empowered in this behalf by any general or special order of the President may impose any of the Penalties specified in Rule 11.

Appointing Authority as mentioned in the Schedule must be understood with reference to rule2 (a) of the Rules. The question as to who is the appropriate disciplinary authority must be raised and answered not only while issuing charge sheet but also at the time of imposing penalty because there might have been some change in the situation due to delegation of powers, etc. in the organization.

Disciplinary authority is required to discharge the following functions:

1. Examination of the complaints received against the employees

2. Deciding as to who is to be appointed as the investigating authority.

3. Taking a view as to whether there is any need to keep the delinquent employee under suspension.

4. Taking a view on the preliminary investigation report and deciding about the future course of action thereon, such as warning, training, counselling, initiation of major or minor penalty proceeding, prosecution, discharge simpliciter, etc.

5. Consultation with the Central Vigilance Commission (CVC) where necessary.

6. Deciding whether there is any need to issue of charge sheet or penalty may be imposed dispensing with inquiry under the appropriate provision

7. Issue of charge sheet where necessary - Rule 14(3)

8. In the case of minor penalty proceedings, deciding, either suo motu or based on the request of the delinquent employee, as to whether it is necessary to conduct a detailed oral hearing.

9. In the case of minor penalty proceedings, forming tentative opinion about the quantum of penalty based on the representation of the delinquent employee, if any, and ordering for a detailed oral hearing where necessary.

10. After issue of charge sheet, deciding as to whether there is any need to conduct inquiry, or the matter may be closed, or the penalty can be imposed, based on the unambiguous, unconditional and unqualified admission by the delinquent employee.

11. Passing final order imposing penalty or closing the case, based on the response of the delinquent employee

12. Appointment of Inquiry Authority and Presenting Officer, where necessary

13. Taking a view on the request, if any, of the delinquent employee for engagement of a Legal Practioner as Defence Assistant

14. Making originals of all the listed documents available to the Presenting Officer so that the same could be presented during the inspection of documents.

15. Examination of the inquiry report to decide as to whether the same needs to be remitted back to the inquiry authority - Rule 15(1)

16. Deciding as to whether the conclusion arrived at by the Inquiring Authority is acceptable and to record reasons for disagreement if any – Rule 15(2)

17. Consultation with CVC or UPSC where necessary

18. Forward the inquiry report to the delinquent employee together with the reasons for disagreement, if any and the recommendations of the CVC where applicable - Rule 15(2)

19. Considering the response of the delinquent employee to the inquiry report and the reasons for disagreement and taking a view on the quantum of penalty or closure of the case. Rule 15(2)A

20. Pass final order in the matter – Rule 15(3)

21. On receipt of copy of the appeal from the penalized employee, prepare comments on the Appeal and forward the same to the Appellate Authority together with relevant records. - Rule 26(3)

Where a statutory function has been performed by an authority who has not been empowered to perform it, such action without jurisdiction would be rendered null and void. The Hon’ble Supreme Court in its Judgment dated 5th September 2013, in Civil Appeal No. 7761 of 2013 (Union of India & Ors. Vsd. B V Gopinathan) has held that the statutory power under Rule 14(3) of the CCA rule has necessarily to be performed by the Disciplinary Authority. as under:

“49. Although number of collateral issues had been raised by the learned counsel for the appellants as well the respondents, we deem it appropriate not to opine on the same in view of the conclusion that the charge sheet/charge memo having not been approved by the disciplinary authority was non-est in the eye of law.”

Disciplinary Authority is required to be conversant with the following:

1. Constitutional provisions under Part III (Fundamental Rights) and Part XIV (Services Under the Union and the States)

2. Principles of Natural Justice

3. CCS(CCA) Rules 1965 or the relevant rules applicable to the organization

4. Government of India Instructions relating to disciplinary proceedings

5. Vigilance Manual

6. Instructions of CVC and UPSC relating to disciplinary proceedings

7. Case law relating to disciplinary proceedings

1. What is the basic responsibility of the Inquiry Officer?

As stated in Rule 14(2) the basic purpose of appointment of Inquiry Officer is to inquire into the truth of the imputations of misconduct or misbehavior against a Government Servant.

2. What are the various activities performed by the Inquiry Officer for the discharge of the above function?

Various activities to be performed by the Inquiry Officer may broadly be classified as under:

a) Pre hearing stage

b) Preliminary hearing stage

c) Regular hearing stage

d) Post hearing stage

e) At any stage during the Inquiry

f) Tackling some unusual circumstances which may arise

3. What are the activities to be performed by the IO during the pre-hearing stage?

a) Verifying the appointment order and the enclosed documents

b) Acknowledging the appointment.

c) Preparation of the Daily Order Sheet – This will be done throughout the Inquiry

d) Analysing and understanding the Charges

e) Fixing the date for Preliminary Hearing

f) Sending communication to the parties about hearing.

g) Informing the controlling officers of Charged Officer and Presenting Officer

h) Ascertaining as to whether the Charged Officer has finalised a Defence Assistant and if so, informing the Controlling Officer of the Defence Assistant

4. What is the scope of verification of appointment order and the enclosed documents?

It is desirable that the IO scrutinizes the order appointing him as IO and the enclosed documents thoroughly. Firstly, the appointment of Inquiry Officer is required to be made by the Disciplinary Authority and no one else. When the President is the Disciplinary Authority, the order of appointment of the I O may be signed by any authority that is competent to sign communications on behalf of the President. At any rate the Order should indicate that the appointment of IO is being made by the President only. Any deviation in this regard will constitute an incurable defect in the Inquiry. The complete proceedings will be liable to be quashed if the IO had been appointed by someone other than the Disciplinary Authority.

Similarly, there may be situation wherein the charged officer, while denying the charges, might have quoted a reference number different from the one mentioned in the charge sheet. It is desirable to resolve such discrepancies at the initial stage before it becomes too late.

5. What is the position of the cases where the President is the Appointing Authority?

Under the Transaction of Business Rules, the cases are required to be approved by the Minister concerned. Clarifications were issued through Govt. of India MHA Memo No. F. 39/1/69/-Ests(A) dated 16 April 1969 that the case need not be put up to the Minister every time an order is to be issued in the name of the President. As per the above OM, once the Minister has approved initiation of disciplinary proceedings, there is no need to show the file to the Minister while issuing orders under Rule 14(2),14(4),14(5), etc. The OM however, mandated that formal orders of the Minister should be obtained at the stage of show cause notice under Rule 15 (4)(i)(b) and at the stage of issuing final orders under Rule 15 (4)(iii).

In this context it is significant to note that the Hon’ble Supreme Court in its decision dated 05 Sep 2013 in Civil Appeal No. 7761/2013 [Union of India & Ors Vs B V Gopinath] has set aside the proceedings wherein the Charge sheet was not approved by the Minister. It is for consideration as to:

Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the respondent. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the respondent has been accepted by the CAT as also by the High Court. The action has been taken against the respondent in Rule 14(3) of the CCS(CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term “cause to be drawn up” does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term “cause to be drawn up” merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed “definite and distinct articles of charge sheet”. These proposed articles of charge would only be finalized upon approval by the disciplinary authority.

6. Can the IO take initiative for removing the deficiencies in the Charge Sheet?

IO has full liberty to bring to the notice of the Disciplinary authority any discrepancy which is of the nature of clerical or typographic mistake, i.e. patent errors which are apparent in the face of the record. In case there is any patent defect in the Charge Sheet, the I-O may bring it to the notice of the Disciplinary Authority well in time so that the defect can be cured.

In this context it is essential that IO should not take upon himself the role of refinement or reinforcement of the Charge Sheet. He should confine himself only to the patent errors in the Charge Sheet and not try to make qualitative improvement in it. Any initiative by the IO for the fortification of the charge sheet by way of including additional evidence is most likely to provide material for challenge on grounds of bias as the action of the IO is liable to be perceived as that of a prosecutor.

An illustrative list of patent errors is as under:

a) Typographic mistakes

b) Quoting wrong Rule Numbers. e.g.

i) Charge sheet is being issued under Rule 15 of the CCS (CCA) Rules 1965.

ii) The acquisition of this immovable property was not reported to the competent authority as required under Rule 81 (2) of the CCS (Conduct) Rules 1964.

c) Incompatibility between the name of the Rule and its year e.g. CCS(CCA) Rule 1955

d) Incompatibility between the same figures mentioned in different parts of the Charge Sheet.

e) Names of persons or places mis-spelt in the Charge Sheet e.g. “… acquired a house at Hidurrabad at a cost of Rs. 13,00,000/=”

f) Inconsistency between the numeric and verbal description of an amount e.g. “Rs. 7,348/= (Rupees Three Thousand Seven Hundred and forty-eight) “

g) Wrong mention of the reference number and/or date of communication as well as Government instructions.

Illustrative list of errors which IO should not try to rectify is as under:

a) Any logical inaccuracies

b) Insufficiency of evidence

c) Vagueness of charge

d) Ambiguity in charge

e) Lack of coherence between the misconduct and the charge. E.g. Unauthorised absence is shown as lack of absolute integrity, while it would have been better described as lack of devotion to duty.

7. Is it necessary for the IO to acknowledge the appointment order?

It is a good practice for the IO to acknowledge his appointment. This will keep the Disciplinary Authority informed that the IO has taken charge of the matters and is proceeding with the task. In case the IO is not able to take up the appointment, on account of any valid reason, it is all the more important that the Disciplinary Authority is informed well in time. While a person is not expected to turn down the appointment as IO due to personal reasons, there may be circumstances wherein the IO may have to decline to act so in the interest of the case or due to organisational reasons. Such occasions should be extremely rare. But when such circumstances arise, the IO should inform the Disciplinary Authority without any delay with complete reasons.

8. What is Daily Order Sheet (DOS)?

Daily Order Sheet is the record of the progress of the case handled by the IO during a day. It is prepared and maintained by the IO. While no definite format has been prescribed for the purpose, it is desirable to indicate the following in the Daily Order Sheet.

a) Serial No of the order

b) Date

c) Parties present

d) What happened [eg.: State Witness No. 3 and 4 examined, cross examined and re-examined. At the conclusion of hearing, Charged Officer intimated that he may not be able to attend hearing for two weeks because he had received message from his native place stating that his mother is not well. He accordingly requested that the next hearing may be held after two weeks. Request has been agreed to. Date of Next Hearing will be intimated to the parties after two weeks]

e) Signature of the parties concerned

9. What is the importance of DOS?

It needs to be appreciated that Daily Order Sheet will be the most authentic record for ascertaining as to what happened in the course of inquiry because it is signed by all present.

Inquiring Authority should therefore pay adequate care to the accurate recording of DOS. All the opportunities granted to the PO needs to be recorded without fail because these will help in countering the allegation, if any, of inadequate opportunity raised by the Charged Officer at the later stage.

10. Are copies of the DOS supplied to all the parties concerned?

Copy of DOS must be given to the parties present and signing it. While conducting ex-parte proceedings, it would be a good practice to dispatch the copies of the DOS to the delinquent official. This action will manifest the bonafide of the authorities, in case the delinquent official alleges denial of reasonable opportunity, bias, malafide, etc.

11. When is the Daily Order sheet to be prepared?

Daily Order Sheets are to be prepared whenever there is a progress in the case – not only when hearing takes place. Thus, the first Daily order sheet may be made on the day when IO received his/her appointment order. It may read as under:

Daily Order Sheet No. 1

Dated 99. Aaa.9999 Parties present: Name

Received Order No. ….. dated ….. from ….. appointing me as the Inquiry Authority to look into charges framed against ….. vide Memorandum No. …… dated ……

The following papers were also received along with the Charge Sheet:

a) Copy of the charge sheet

b) Copy of the written statement of defence

c) Copy of order No. …. dated …. appointing Shri …. as Presenting Officer in the case.

An acknowledgement was sent to the Disciplinary Authority.

Sd/- Name Designation

12. How does the IO analyses and understand the charge?

IO has to perceive the charge sheet based on the Charge – Fact – Evidence co- relation. This will help in analyzing and appreciating evidence. This will help the IO to proceed with the task with clarity right from the initial stage

13. What are the precautions to be taken by the IO during the pre-hearing stage?

The date for the preliminary hearing must be chosen in such a way as to provide reasonable opportunity to the parties concerned. For example, if the parties are posted outstation, date of hearing must be fixed so that there is adequate time for the communication to reach the parties and adequate time for the parties for undertaking the travel and reaching the venue.

14. What is preliminary hearing stage?

The phase of the hearing from the first appearance of the parties before the IO till the stage of recording of evidence is known as preliminary hearing.

15. Under what circumstances, the IO may stay the proceedings?

IO cannot stay the proceedings except under one of the under mentioned two circumstances:

a) When there is a stay order from the court of competent jurisdiction

b) When the Charged Officer has expressed lack of faith on the appointment of the IO. CVC Circular No. 03/02/24 dated 19.02.2024

16. What course of action is open to the IO when the Charged Officer presents an order from the Court staying the proceedings?

Under the above stated situation, the Disciplinary Authority must be promptly informed of the development, to enable the Disciplinary Authority to seek legal advice regarding scope of the order and to explore the possibility of filing appeal against the stay order. IO should not proceed with the inquiry unless the stay order is vacated by the court or the Disciplinary Authority informs, based on legal advice that the stay order does not apply to the case in question.

17. What course of action is open to the IO when the CO expresses lack of confidence on the appointment of the IO?

As stated above, the IO shall stay the proceedings forthwith and inform the CO that he is at liberty to seek a change of IO as per Rules. IO should also inform the CO that the proceedings cannot be stayed indefinitely to facilitate the CO making application for change of IO and that the CO must submit the application within a prescribed time (say one week) and submit proof thereof; else the IO is at liberty to proceed with the inquiry. Simultaneously, the IO should apprise the Disciplinary Authority about the development and await further instructions.

18. What are the functions of the IO during the Preliminary Hearing stage?

During Preliminary Hearing, IO is required to perform the following actions:

a) Making arrangements for conducting the hearing

b) Setting the stage for smooth conduct of hearing

c) Asking the statutory questions

d) Finalisation of the question of Defence Assistant

e) Fixing dates for Inspection of the originals of the documents

f) Fixing dates for the submission of the list of additional documents and witnesses required by the CO for the purpose of his defence

g) Finalisation of the documents and witnesses admissible for defence

h) Taking action for procuring the additional documents required for the defence.

i) Settling the issue of disputed documents

j) Taking the documents on record

k) Issue of certificates of attendance to the parties. This will be done during regular hearing stage also.

l) Deciding on the requests for adjournment

19. What arrangements are to be made for conducting hearing?

Even before the arrival of the parties, the IO should ensure necessary seating arrangements for conducting hearing. Preferably, the seating arrangement should be such that both the parties will have equal access to the IO and the IO can watch and hear both the parties comfortably. At any rate, the seating arrangements should not be such as to send any signal that IO is inclined in favour of either of the parties. Besides, it is desirable that no one other than those who are required for the hearing is present in the room while the hearing is in progress. This may not always be possible and it depends upon the space provided to the IO by the organisation. However, IO should apply his mind to this aspect. Making a stenographer and a computer available for the recording the proceedings is another aspect to be attended to by the IO.

20. What are the activities to be performed by the IO during the regular hearing stage?

During regular hearing stage, IO will continue to prepare and issue Daily Order Sheets and certificate of attendance as was being done earlier. In addition, IO will be performing the following activities:

a) Summoning witnesses

b) Monitoring the conduct of the examination of witnesses

c) Recording the statements of the witnesses

d) Recording the demeanor of the witnesses

e) Deciding objections about the questions raised during examination of witnesses.

f) Deciding requests for introducing additional witnesses.

g) Deciding requests for recalling witnesses

h) Asking the CO to state his defence on conclusion of the case of the Disciplinary Authority.

i) Putting the mandatory questions on conclusion of the case of the defence

j) Checking up from the CO as to whether he got sufficient opportunity for his defence.

k) Giving directions for the submission of the written briefs by the Presenting Officer and the CO.

21. Does the IO have power to enforce attendance of witnesses?

IO does not have power to enforce attendance of witnesses, except when an ad hoc notification in respect of the particular inquiry has been issued by the Central Government authorizing the Inquiring Authority to exercise powers specified in Section 5 of Departmental Enquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act 1972.

22. What is to be done, if a listed witness does not turn up for inquiry?

In case a government official who has been named as a witness in a departmental proceeding fails to turn up, the matter may be reported to the higher authorities of the witnesses. Para 91 of P&T Manual provides that refusal to appear as witnesses can be construed as sufficient cause for initiating disciplinary proceedings against him.

23. What are the post hearing activities to be performed by the IO?

During the last hearing, the IO will fix time limit for the PO and the CO to submit their respective written briefs. Thereafter, the IO prepares his report and submits the same to the Disciplinary Authority together with the records of the case.

24. What is the time frame within which the Inquiry is to be completed by the IO?

As per the Vigilance Manual (Ed 2005) Inquiry Report is to be submitted by the IO within six months from the date of appointment.

1. What is the basic responsibility of the Presenting Officer (PO)?

Presenting Officer is appointed for the purpose of presenting the case of the Disciplinary Authority so that the charges can be proved in the Inquiry. In many ways, the role of the presenting Officer is a challenging one. His role is comparable to that of the anchor runner in a relay race. Many people have carried the baton and finally it has been handed over to him. Whatever be the merits and demerits of the earlier functionaries, being the last person in the line, it is for the Presenting Officer to carry the baton to the winning post. An intelligent Presenting Officer can make up for the mistakes committed by the earlier functionaries and accomplish the target. Similarly, a bad Presenting officer may lose the advantage acquired by the Investigating officer, Vigilance Officer, etc. and may lose the case through bad presentation.

2. What are the various activities performed by the PO for the discharge of the above function?

For achieving his objective, the Presenting Officer is required to perform several functions. Basically, the Presenting Officer is required to lead the evidence of the Disciplinary Authority and satisfactorily answer the contentions raised by the Charged Officer. Thus, the explicit functions of the Presenting Officer are:

a) Presenting the documentary evidence

b) Leading the oral evidence on behalf of the disciplinary authority

c) Cross examining the defence witness

d) Preparation and presentation of the written brief

e) Successful accomplishment of these explicit functions, call for a number of implicit functions as well. Some of the actions such as liaison with the Disciplinary Authority has to be performed by the Presenting Officer throughout the course of his assignment. Notwithstanding this, various actions to be taken by the Presenting Officer in the course of his assignment can be conveniently categorized into the following four phases.

I. Preparatory stage

II. Preliminary Hearing stage

III. Regular Hearing stage

IV. Post hearing stage

3. What are the activities performed by the PO during the preparatory stage?

Following are the activities performed by the Presenting Officer during the preparatory stage:

a) Examine Appointment order and the documents received along with it:

b) Establishing rapport with the Inquiry Officer

c) Understanding the charge

d) Analysing the charge

e) Link the facts to evidence

f) Anticipate possible line of defence: At the preparatory stage, the Presenting Officer should also anticipate the line of defence, the Charged Officer will be taking.

g) Visualise the transaction

4. What documents are to be received by the PO along with the appointment order?

a) PO receives the following documents along with the Appointment Order:

b) Charge Sheet along with the enclosures.

c) Written Statement of defence submitted by the charged officer.

d) In case the Charged Officer has not filed any Statement of Defence, a confirmation to the above effect and a confirmation to the effect that the Charge Sheet has been served on the Charged Officer.

e) A copy of the order of appointment in respect of the Inquiry Officer.

5. Will it be fair and appropriate for the PO to meet the IO unless called for a hearing?

Presenting Officer is the agent of the Disciplinary Authority and his endeavour is to prove the charge. On the other hand, the Inquiry Officer is an impartial authority who is required to decide the case on the basis of the evidence led before him. Notwithstanding this position, the Presenting Officer should consider himself as one assisting the Inquiry Officer in ascertaining the truth. Often it is said that the relationship between the Disciplinary Authority and the Presenting Officer is similar to that between the client and an advocate. Presenting Officer is compared to the Government Counsel. Every counsel is an officer of the court and owes a responsibility towards the court in helping the court to ascertain the truth. On the same analogy, the Presenting Officer should consider himself as an officer under the Inquiry Officer assisting the latter to ascertain the truth. Immediately on receipt of the appointment order, the Presenting Officer should get in touch with the Inquiry Officer and assure him of his co-operation. It is also desirable that the Presenting Officer informs the Inquiry Officer of his address and phone number to facilitate easy communication. Needless to add, it will be unethical for a PO to influence the IO regarding the hearing and its outcome.

6. What is the need for the PO to understand the charge immediately on receipt of the appointment order?

Presenting Officer can present the case effectively only if he understands the case of the Disciplinary Authority thoroughly. The first step in this regard calls for the understanding of the charge. Often the charge is that a person has done something which should not have been done or has failed to do something which should have been done. That someone has used abusive language, (which should not have been done) is a charge. That a person has failed to keep the cash book up to date, (failed to do something, which should have been done) can be a charge. While charges like unauthorized absence, insubordination, etc. can easily be understood, there may be situations wherein the omission or commission of the Charged Officer may not be easily understandable. The clue for understanding the charge is asking the following questions:

a) What has the Charged Officer done or failed to do?

b) What was required to be done or not to have been done?

c) Which rule or instruction prescribes what is required to be done or not to be done?

7. How does the PO analyse the Charge?

The PO has to perceive the Charge – Fact – Evidence co-relation in the Charge Sheet. For example, if there is a charge that an officer (working in a stores department) has procured certain items without any demand for the same from the sub-depots and thereby violated certain departmental instructions, the charge involves the following facts:

a) That there are some instructions relating to the manner of procurement of items.

b) That the instructions require that the items can be procured only after the receipt of the demands from the sub-depots.

c) That the officer purchased the specified items.

d) That there was no demand from any sub-depot for these items.

8. How should the PO link evidence to charge?

Every fact that is required for establishing the charge must be presented through some evidence. Presenting Officer must locate evidence at his disposal for establishing various facts. This can be done by listing out the facts to be proved in the inquiry and examining which piece of evidence (in Annexure III and IV) will help in establishing the fact. The officer who has carried out the Preliminary Investigation can be of great help in this regard because he has already reached certain conclusions on the basis of the evidence gathered by him during the investigation stage.

9. What is the sphere of activities during the Preliminary Hearing Stage, with which PO is concerned?

a) Collection of original documents

b) Finalising the schedule for the Inspection of the listed documents

c) Conducting the inspection of the listed documents

d) Additional documents required by the Charged Officer

e) Collection of the documents cited by the Charged Officer

f) Handing over the listed documents to the Inquiry Officer after the inspection

g) Obtaining the copies of the documents required by the Charged Officer

10. Wherefrom and when does the PO collect the original documents?

Originals of the documents listed in Annexure III of the charge sheet are generally held by the Disciplinary Authority. Normally they are retained by the Vigilance Section or the Administrative section which has processed the case for issue of Charge Sheet. The same will have to be obtained by the Presenting Officer and kept in safe custody till it is got inspected by the Charged Officer and finally presented to the Inquiry Officer. Depending upon the nature of the documents and convenience of the parties, these documents may be taken over by the Presenting Officer at an appropriate time. At any rate, the documents must be with the Presenting Officer before the inspection of the same by the Charged Officer. It is advisable for the Presenting Officer to critically examine the originals of the listed documents so that the disputes which the Charged Officer is likely to raise may be anticipated and proper remedial action can be planned.

11. When does the inspection of documents take place?

It is during the Preliminary Hearing, that a decision is taken for the Inspection of the Documents. As per Rule 14(II)(i), inspection of the documents is required to be done “within 5 days of the order or within such further time not exceeding five days as the Inquiring authority may allow”. The Presenting Officer will have to indicate to the Inquiry Officer, his preference for the venue, date and time of the inspection of the listed documents. Depending upon the mutual convenience of the parties, the Inquiry Officer will fix the schedule for the inspection of the listed documents.

12. What precautions are to be observed by the PO during inspection of documents?

Inspection of listed documents by the Charged Officer is a sensitive event in the disciplinary proceedings. IO is at liberty to leave it to the PO and CO. Under such a situation, it is for the Presenting Officer to get the Inspection of listed documents completed. Presenting officer has to exercise great care and caution during the inspection of original documents by the Charged Officer. There have been occasions wherein the originals were destroyed during the inspection. At the same time, Inspection of originals is a valuable right of the Charged Officer and the same cannot be curtailed by unwarranted and unreasonable restrictions. The following suggestions are worth considering at the time of inspection of documents:

A. The Charged Officer may not be allowed to hold a pen while carrying out the inspection of the originals. A small dot or bar or a comma or a colon may change the contents of the originals enormously. As Charged Officer is entitled to take notes at the time of inspection, he may be advised to take notes with a pencil.

B. Preferably give one document at a time. There may be a number of documents which will be inspected by the Charged Officer. Simultaneously handing over all the documents to the Charged Officer will have many disadvantages. It is appropriate to give the documents one after another. Once a document has been inspected, the same must be taken back and then another document may be handed over for inspection. As the Charged Officer has been supplied with the copies of the documents, he may not require to compare the contents of the originals. However, if the Charged Officer requires to simultaneously peruse two documents, the same may be allowed ensuring the safety of the documents.

C. Keep the document equidistant between the Charged Officer and the Presenting Officer. This will enable the Presenting Officer to have physical control of the original document if the charged officer tries to destroy.

D. Never leave the documents in the custody of the Charged Officer. It is advisable that the Presenting Officer is always present in the room throughout the inspection. In case there is an extreme emergency, the Presenting Officer may temporarily suspend the inspection, keep the documents under lock and key and request the Charged Officer to wait for a few minutes. Alternatively, depending upon the nature of the document being inspected, some reliable person may be asked to take charge of the situation temporarily.

E. The Charged Officer and the Defence Assistant must be treated with utmost courtesy, when they visit the Presenting Officer for the inspection of the documents. In case there is any difference of opinion about the rights of the Charged Officer or the limitations which the Presenting Officer may impose, the matter may be referred to the Inquiry Officer rather than entering into an unpleasant debate.

13. What is the role of the PO with regard to the Additional documents and witnesses demanded by the IO?

Charged Officer is entitled to ask for the documents which may be of help in his defence. In fact, the Inquiry Officer is required to ask for the details of the documents and witnesses required for the purpose of defence. Although it is for the Inquiry Officer to decide on the relevance of the documents and witnesses cited by the Charged Officer, Presenting Officer need not be a mute spectator at this stage. Being a party to the proceedings, he has a right to express his opinion. Besides, he also has a role to assist the Inquiry Officer by way of bringing to the notice of the latter the rule position and the custodian of the document which has been cited by the Charged Officer

14. What is the role of the PO in collecting the additional documents demanded by the CO?

Often, the Inquiry Officers request the Presenting Officer to collect the documents required by the Charged Officer for the purpose of his defence. This practice is likely to vitiate the inquiry and must be strictly avoided. The documents required by the Charged Officer must reach the Inquiry Officer direct from the custodian of the documents. Collection of the documents by the Presenting Officer may result in allegation being leveled by the Charge Officer that the documents were tampered while under the custody of the Presenting Officer. If the Inquiry Officer requests the Presenting Officer to collect these documents, the latter should politely apprise the former of the problems involved. However, there can be no objection to the Presenting Officer transiting these documents in sealed covers from the custodian of the documents to the Inquiry Officer.

15. What is the role of the PO in handing over the listed documents to the IO?

After the Inspection of the documents by the Charged Officer, in the next hearing, the Presenting Officer is required to hand over the listed documents to the Inquiry Officer, who will be taking over the documents and marking them as SE-1, SE-2, etc. At this stage, the Presenting Officer should pay special attention to these aspects:

a) The facts regarding the admission and dispute over the listed documents should be correctly brought out in the Daily Order Sheet.

b) The documents taken over by the Inquiry Officer are to be signed by the Presenting Officer and the Charged Officer.

c) Presenting Officer should ensure that the details of the documents taken over are correctly reflected in the daily Order Sheet. This alone will serve as a receipt for the documents handed over by the Presenting Officer.

16. Is the PO entitled to have copies of the additional documents demanded by the CO?

As the Charged Officer is entitled for the copies of the listed documents, the Presenting Officer is also entitled for the copies of the documents relied upon by the Charged Officer. He is also entitled to peruse the originals of these documents. These documents will be collected by the Inquiry Officer and will not be under the custody of the Charged Officer. Hence, the Presenting Officer will have to request the Inquiry Officer for the copies of these documents and the perusal of the originals.

The PO has to carefully go through the documents cited by the Charged Officer and try to anticipate as to how the Charged Officer will draw support from the same. As the Charged Officer will submit his written brief only after the submission of brief by the Presenting Officer, there is no way for the Presenting Officer to understand as to how the Charged Officer relies upon the documents for the purpose of his defence. Presenting Officer can only anticipate this and accordingly do the needful in his written brief.

17. What are the responsibilities of the PO during the Regular Hearing Stage?

During Regular Hearing, witnesses of both sides are examined. As regards the examination of the witnesses of the Disciplinary Authority, PO has the following responsibilities:

A. Deciding the witnesses who may be dropped. At times Annexure IV of the Charge Sheet may contain witnesses only for the purpose of introducing the disputed documents. In case the CO did not dispute the authenticity of the documents, it may not be necessary to call such witnesses. IO may accordingly be informed. This has to be done with the approval of the Disciplinary Authority.

B. Deciding as to whether any additional witness is required. This also has to be done with the approval of the Disciplinary Authority. Thereafter a request will have to be made to the IO.

C. Contacting and briefing the witnesses. There is nothing unethical in contacting the witnesses in advance and informing of the proposed hearing. If the pre-recorded statement of the witnesses is available, the same may be shown to the witness also. The witness may also be informed of the likely questions during cross examinations and be advised to be ready with answers.

D. Needless to add that it would be highly unethical to request or persuade or pressurise the witness to depose in any particular manner

E. Arranging the attendance of the above witnesses

F. Conducting the examination of the witness: Normally, examination in chief may not be in the question answer form. If a pre-recorded statement is available, the same may be read over to the witness and he/she may be asked to confirm the same. The witness may also be asked if he/she would like to add, subtract or modify the contents of the pre-recorded statement. Otherwise, the witnesses may be asked to introduce himself/herself and then state the facts relevant to the case. PO, however, is expected to be ready with the details which are to be stated by the Witness. In case any particular information was not covered by the witness in his/her narration of the events, PO should specifically ask for the same.

G. Conducting re-examination of the witnesses where necessary: PO should carefully watch and note down the likely confusions created through the cross-examination. Appropriate questions must be put during re-examination, to clear the misconceptions created through cross-examination.

18. What are the responsibilities of PO during cross examination of Defence Witnesses?

The task of cross examining the defence witnesses involves the following activities:

a) Gathering the background information about the defence witnesses.

b) Anticipating the deposition of the defence witnesses.

c) Observing the examination in chief of the defence witnesses so as to judge the veracity of the statements, involvement/interest of the witnesses and also to object to leading questions.

d) Cross examining the defence witnesses

19. What precautions are required on the part of the PO during the Regular Hearing stage?

It is said that efficient examination-in-chief, comprises in asking questions in such a way that the witness understands what answer is required; efficient cross examination comprises in asking questions in such a way that the witness does not understand what answer is required. In addition to the general skill of questioning during examination of witnesses, the PO should take the following precautions:

a) Ensure that no leading questions are asked during examination in chief and re-examination of the State witnesses

b) Object to the Leading questions raised by the CO or the Defence Assistant during examination or re-examination of the defence witnesses

c) Raise objections, where necessary, during cross examination of State witnesses.

d) Ensure that recorded statement of witness is true to the depositions and free from errors.

20. What are the activities of the PO during post hearing stage?

After the hearing is over, PO is required to submit the written brief. The purpose of the brief is to establish, by relying on the evidence produced in the inquiry that the charge stands proved.

21. What is the format for the brief of the PO?

There is no prescribed format for the brief of the PO. The following format is suggested for the purpose:

a) Introduction

b) Details of the charges levelled

c) Proceedings during the Preliminary Hearing: How was inspection of documents conducted; how many documents were disputed by the CO; how many documents were taken on record by the IO and how many were to be introduced through oral evidence; what were the documents and witnesses demanded by the CO for the purpose of his/her defence.

d) Proceedings during the regular hearings; how many witnesses were led from each side; whether any new evidence was introduced during the hearing;

e) Opportunities given to the CO: appointment of Defence Assistant; adjournments demanded and granted; documents and oral witnesses demanded and allowed, etc.

f) Case of the Disciplinary Authority: the Charge-facts-evidence co-relation

g) Evidence on behalf of the Disciplinary Authority

h) Evidence on behalf of the CO

i) Analysis of the Evidence presented by the parties.

j) Conclusion

22. What will happen if the PO could not attend a hearing?

In this connection, para 9.2 of Chapter XI of the Vigilance Manual 1991 Ed provides as under:

9.2 Rule 14 (14) of CCA Rules provides that the witnesses may be examined by or on behalf of the Presenting Officer. Absence of PO on any particular hearing would not necessarily imply postponement of hearing if an authorized person is present on behalf of the Presenting Officer. The substituted officer need not be formally appointed as Presenting Officer.

23. What should be the form and frequency of interaction between the PO and the Disciplinary Authority?

The presenting officer presents the case on behalf of the Disciplinary Authority. Therefore, all the actions of the PO should have the approval of the Disciplinary Authority. PO should regularly be apprising the Disciplinary Authority about the proceedings of each hearing. Para 2.4 of Chapter XI of Vigilance Manual 1991 Ed also provides as under:

The disciplinary authorities should be kept posted with the progress of oral enquiries. The Presenting Officer should send brief reports of the work done at the end of each hearing to the disciplinary authority in the prescribed proforma.

PO should seek permission of IO before dropping any evidence or seeking permission of IO for introduction of any new evidence,

1. Who can be appointed as Defence Assistant?

Rule 14(8) of the CCA Rules provides for appointment of any one of the following as a Defence Assistant, subject to certain conditions:

a) A Government servant

b) Legal practitioner

c) Retired Government Servant

2. What are the conditions relating to appointment of a serving Government Servant as Defence Assistant?

Following are the conditions for appointment of serving Government Servant as Defence Assistant:

a) The Government servant concerned must be posted in any office at the Headquarters of the CO or in any office where the inquiry is being held

b) The person so appointed must not have three pending cases:

3. Can a Government Servant under suspension be appointed as Defence Assistant?

DG P&T letter No. 201/`5/75-Disc.II dated 3 Jul 1975 provides that a Government Servant under suspension can also be allowed to function as Defence Assistant. The reasoning given in support of the above decision is that merely by being under suspension, one has not ceased to be a Government Servant. The above letter refers to a decision of the Kerala High Court, without giving the details of the judgment.

4. Can the CO seek the services as Defence Assistant, of a Government Servant posted in a station other than the place of inquiry as well as the Headquarters of the CO?

Proviso to Rule 14(8) provides for appointment as Defence Assistant, a Government Servant posted at any other station, if the IO, having regard to the circumstances of the case and for reasons to be recorded in writing, so permits.

It is necessary that in either case, whether allowing or rejecting the request of the CO, the order of the IO must be a reasoned order. There is a statutory condition that reasons must be recorded while granting permission to engage a Defence Assistant from out station. Principles of natural justice require that the order rejecting the request of the CO in this regard must be through a speaking one because it affects the prospects of reasonable opportunity of defence.

5. What further course of action is available, if the IO rejects the request of the CO for appointment as Defence Assistant, of a Government Servant posted at a station other than the Headquarters of the CO or the place where the inquiry is being held?

The CO aggrieved by the order of the IO in the matter of engaging a Defence Assistant from outstation is at liberty to make an appeal to the Disciplinary Authority as provided in DoP&T OM No. 11012/3/86-Estt (A) dated 29 Apr 1986.

6. What are conditions under which a legal practitioner may be allowed to present the case on behalf of the CO?

Legal practitioner may be allowed to function as Defence Assistant under either of the two following conditions:

a) Where the PO is a Legal Practitioner – under this condition, the CO has a statutory right to engage a legal practitioner as his defence assistant or

b) Where the Disciplinary Authority having regard to the circumstances of the case so permits.

7. What are the circumstances which may justify the appointment of a legal practitioner as defence assistant?

A non-exhaustive list of factors to be considered while examining the request of the CO for engagement of legal practitioner has been provided in DG P&T letter No. 6/8/72-Disc. I dated 29 Aug 1972:

a) Status of the PO

b) His experience in this job

c) Volume and nature of documentary evidence produced.

The above letter also states that the sole criterion by which the Disciplinary Authority must be guided is, whether the rejection of the request could be construed as denial of reasonable opportunity. Subsequently, the MHA DP&AR vide its OM No. 11012/7/83-Estt.(A) dated 23 Jul 1984 has clarified that when on behalf of the Disciplinary Authority the case is being presented by the Prosecuting officer of the CBI or the Law officer (such as Legal Advisor, Junior Legal Advisor) the request deserves to be considered favourably.

8. What are the restrictions on a Retired Government Servant being appointed as a Defence Assistant?

DoP&T OM No. 11012/11/2002-Estt.(A) dated 5 D}Feb 2003 provides the following conditions in the matter of appointment of a retired government as a Defence Assistant:

a) Should have retired from Service under the Central Government.

b) If the retired Government Servant happens to be a legal practitioner also, the conditions prescribed for engaging a legal practitioner as defence assistant will apply.

c) Should not have been associated with the case in any manner in his official capacity.

d) Cannot function as Defence Assistant in more than seven cases at any point of time.

9. When is the Defence Assistant appointed?

It is desirable that the IO informs the CO of the latter’s entitlement for having the services of Defence Assistant in the first communication regarding the hearing. As soon as the CO informs the IO of the details of the Defence Assistant, the IO may write to the controlling officer of the Defence Assistant so that the latter could be spared for the first hearing itself.

Before formally allowing the person to function as Defence Assistant, O should check and satisfy himself/herself about the number of cases being handled by the defence assistant.

1. What are the stages in conduct of inquiry?

Conduct of inquiry comprises the following main stages:

a) Pre – hearing stage: From the appointment of IO PO till the commencement of hearing. During this stage, the IO and PO examine the documents received by them and ensure their correctness. Besides, the PO prepares for the presentation of the case.

b) Preliminary Hearing Stage: From the time the parties start appearing before the IO, till the commencement of presentation of evidence. During this stage CO is asked once again as to whether the charges are admitted, inspection of documents take place, CO presents the list of documents and oral witnesses required for the purpose of defence

c) Regular hearing stage: during this stage, evidence is produced by the parties.

d) Post hearing stage: during this stage, the PO and the CO submit their written briefs to the IO and the IO submits his/her report to the Disciplinary Authority.

2. Is there any time limit for commencement of hearing?

As per rule 14(7) of the CCA Rules, first hearing of the case must be scheduled within 10 days of the IO receiving the Charge sheet. As the copy of the Charge Sheet is sent to the IO together with the appointment order, it is implied that the inquiry is to commence within 10 days of the IO receiving the appointment order. The above rule also provides the time limit prescribed is extendable by maximum of another 10 days.

3. What happens during the first hearing of the case?

As per Rule 14(9) of the CCA Rules, when the CO appears before the IO, the latter should ask whether the CO admits the charges or has any defence to make. If the CO pleads guilty in respect of any of the charges, the IO should get it recorded and get it signed by the CO. Rule 14(10) provides that the IO shall send a finding of guilt to the Disciplinary Authority in respect of the charges in respect of which the CO has pleaded guilty. In addition to the above, the IO shall fix a schedule for the following:

a) inspection of the documents listed in Annexure III of the Charge sheet, within five days extendable by a maximum of another five days [Rule 14(11)(i)]

b) Submission of the list of witnesses to be examined on behalf of the CO [Rule 14(11)(ii)]

c) Submission of the list of additional documents required by the CO. within ten days extendable by a maximum of another ten days. Rule 14(11)(iii)]

4. Is it advisable for the IO to ask the CO during the first hearing as to whether the CO has faith in the IO?

It is not a bad idea to ask the CO during the first hearing as to whether the CO has faith in the IO and record the answer to the question. This may be quoted against the CO, in case the CO raises any frivolous complaint of bias later. On the other hand, if the CO expresses lack of faith on the IO in the first instance, the same may be recorded and the CO may be advised of the option open to him/her for seeking change of IO.

5. Is it necessary for the IO and PO to be present during the inspection of listed documents by the CO?

Not necessarily. Para 3.7 of Chapter XI of the Vigilance Manual 1991 Ed provides that inspection of listed documents is to take place at “such place as the Inquiry Officer may direct in the presence of the Presenting Officer or any other gazetted officer deputed for the purpose by the disciplinary authority or the other authority having the custody of the records.”

6. How to conduct inspection of listed documents which are held up in the Court?

The following alternatives are open in respect of the documents held up in the Court and required for inspection by the CO:

a) An application may be made to the Court for making the documents available at least temporarily.

b) If the above request is not allowed by the Court, inspection of the documents by the CO may be arranged in the Court.

7. Can a document sought by the CO for the purpose of defence be denied?

Any document sought by the CO for the purpose of defence, can be denied only on either of the two grounds. Firstly, if the IO is of the opinion that the document is not relevant to the case. In this case, the IO has to pass a reasoned order as prescribed in the proviso to Rule 14(12) of the CCA Rules. In addition to the above, authority in possession of the documents may deny the production of documents for reasons to be recorded in writing that the production of the said document is against public interest.

In this connection, para 3.5 of Chapter XI of the Vigilance Manual (1991 Ed) provides as under:

3.5 Denial of access to documents which have a relevance to the case will amount to violation of the reasonable opportunity mentioned in Article 311 (2) of the Constitution. Access may not, therefore, be denied except on grounds of relevancy or in the public interest or in the interest of the security of the state. The question of relevancy has to be looked at from the point of view of the Government servant and if there is any possible line of defense to which the document may be in some way relevant, though the relevance is not clear at the time when the Government servant makes the request, the request should not be rejected. The power to deny access on the grounds of public interest or security of State should be exercised only when there are reasonable and sufficient grounds to believe that public interest or security of the State will clearly suffer. Such occasions should be rare.

8. Generally, what are the documents which are not made available by the Head of the Department?

Para 3.6 of the Vigilance Manual (1991 Ed) indicates the following as examples of documents, access to which may reasonably be denied:

a) Reports of a departmental officer appointed to hold a preliminary enquiry or the report of the preliminary investigation of SPE. These reports are intended only for the disciplinary authority to satisfy himself whether departmental action should be taken against the Government servant or not and are treated as confidential documents. These reports are not presented before the Inquiry Officer and no reference to them is made in the statement of allegations. If the accused officer makes a request for the production/inspection of the report of the Investigating Officer, S.P.E., the Inquiring Authority should, instead of dealing with it himself, pass on the same to the Disciplinary Authority concerned, who may claim privilege of the same in public interest, as envisaged in proviso to sub-rule (13) of Rule 14 of CCS (CCA) Rules, 1965.

b) File dealing with the disciplinary case against the Government servant - The preliminary enquiry report and the further stages in the disciplinary action against the Government are processed on this file. Such files are treated as confidential and access to them should be denied.

c) Advice of the Central Vigilance Commission. - The advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the Government servant.

d) Character roll of the officer. - The CR of the official should not be shown to him.

The above provision has to be perceived in the context of the Right to Information Act and subsequent judicial pronouncements. As is well known, it is mandatory to provide the advice of the CVC. Besides, the employees have acquired right to peruse their Annual Performance Appraisal Reports

9. Can the IO deny allowing a witness named by the CO for the purpose of his/her defence?

IO can deny a witness only on the ground of relevance.

10. What is the sequence of events during Regular Hearing?

Following is the sequence of events during Regular Hearing:

a) Documentary evidences on behalf of the Disciplinary Authority are taken on record

b) Oral evidence of Disciplinary Authority is taken on record

c) CO asked to state his/her defence

d) Documentary evidences on behalf of the Presenting Officer (if any) and the Charged Official (if any) are taken on record

e) Oral evidence of the Presenting Officer (if any) and the Charged Official (if any) are taken on record

f) Mandatory question by the IO

g) Fixing time for submission of briefs by the PO and CO

11. Can the statements recorded during preliminary investigation be relied upon?

In this connection para 6.2 of the Vigilance Manual (1991 (ed) provides as under:

Instead of recording the evidence of the prosecution witness, de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance (at least 3 days) of the date on which it is to come up for inquiry. As regards the statement recorded by the Investigating officers of the CBI, which are not signed, the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded thereunder that it had been read out to the person concerned and has been accepted by him.

12. What is the procedure for procuring the documents demanded by the charged officer?

Inquiring Authority should directly obtain the additional documents demanded by the charged officer. It is incorrect to assign this task to the Presenting officer.

13. What is the order in which the witnesses are to be presented?

The Presenting officer is to lead the State witnesses in the first instance. The order in which the State witnesses are to be led can be left to the discretion of the Presenting Officer. It is desirable to frame the sequence of the witnesses in such a way as to gradually build the case of the Disciplinary authority.

After the State witnesses are examined, the charged officer can be asked to lead defence witnesses, if any, in the order decided by him/her.

14. What are the stages in the examination of witnesses?

Witnesses are examined through the under mentioned three stages:

a) Examination in chief

b) Cross examination

c) Re-examination

15. Who conducts the above three stages of examination:

Examination in Chief is conducted by the party who is producing the witnesses i.e. examination in chief of the State witness will be done by the Presenting officer and examination in chief of the defence witnesses will be done by the Charged officer assisted by the Defence Assistant

Cross examination is done by the opposite party. i.e. Cross examination of State witnesses will be done by the Charged officer, assisted by the Defence Assistant and cross examination of the defence witnesses will be done by the Presenting officer

Re-examination will be done by the party who performed examination in chief.

16. What is the scope of Examination in Chief?

Examination in chief is confined to the relevant issue i.e. issues relating to the transaction on which the charges have been framed in the case of State witnesses and the points mentioned in the statement of defence in respect of defence witnesses.

17. What is a leading question?

Leading question is one which indirectly reveals the expected answer to the question.

18. What is the provision regarding leading questions?

Leading questions are prohibited during examination in chief and re-examination. There is no bar on asking a leading question during cross examination. This means that one cannot ask a leading question from one’s own witness; but can ask a leading question from the witness presented by the opposite side. This general rule has an exception viz. that there is no bar on asking a leading question which is introductory in nature. E.g. You are in the working in the store since 2010?

19. What is the scope of cross examination?

Scope of cross is examination is a bit wide. Questions for assailing the credibility of the witness can also be raised. The following questions are however, prohibited during cross examination:

a) Questions without any basis

b) Questions which are obscene or indecent

c) Questions which are intended to vex or annoy the witnesses

20. What is the scope of re-examination?

Re-examination will be confined to the issues on which cross-examination was conducted.

21. Is there any scope for a second cross – examination?

In case any new issue was raised during re-examination with the permission of the Inquiring Authority, one more opportunity for cross-examination must be afforded.

22. Considering the scope of examination in chief and cross examination, what should be the difference in approaches for these two activities?

It is said that the art of successful examination in chief is to ask questions in such a way that the witnesses understand the answer expected - without the question being a leading question. On the contrary, the art of cross examination is to ask questions in such a way that the witness does not understands what is the purpose of the question.

23. What is the procedure for recording of evidence by the witnesses?

The statements of the witnesses may be recorded either in narrative form or in question answer form as deemed suitable. Generally, examination in chief may be in narrative form. At times it may even state as under:

The witnesses confirmed the statement given by him during preliminary investigation and said he had nothing more to add and modify.

Cross-examination and re-examination will be in the form of question and answer. It is desirable that the questions and answers are numbered for the sake of easy reference in the written briefs of the PO and charged officer and in the Inquiry report.

Witness will be asked to sign each page of the statement. Copies given to the CO and PO.

24. What is the stage at which the charged officer is asked to lead evidence?

After the case of the disciplinary authority is over, the charged officer will be asked to state his defence. This is only an offer to the delinquent and if the delinquent does not state his/her defence, the inquiry will proceed.

25. What is the order in which the charged officer will present defence?

Charged officer will first present documentary evidence and then lead oral evidence.

26. Can the CO be questioned by PO?

PO can question the charged officer only if he/she presents himself/herself as a witness.

27. What happens if a witness who had given a statement during preliminary investigation changes stand to favour the delinquent?

Change of stand without any justifiable reason will amount to a misconduct and the Government servant who is guilty of such a misconduct renders himself/herself liable for disciplinary action. In this connection, Central Vigilance Commission Office Order No. 73/12/2005, dated: 15th December, 2005 provides as under:

Rule 16, Chapter XIII of Vigilance Manual Vol. I, provides that if a government servant, who had made a statement in course of a preliminary enquiry, changes his stand during evidence in the enquiry, and if such action on his part is without justification or with the objective of favouring one or the other party, his conduct would constitute violation of Rule 3 of the Conduct Rules, rendering him liable for disciplinary action. Such misconduct in the context of criminal cases becomes all the more grave.

The Commission is of the view that this unhealthy tendency on part of public servants needs to be curbed effectively. The Commission, therefore, desires that such misconduct, whenever reported by the CBI, should be viewed with utmost seriousness and necessary disciplinary action initiated promptly.

28. Can a witness be called for the second time?

Under Rule 14(15) of the CCA Rules, the Inquiring Authority may at its discretion allow the Presenting officer to re-call witness. In the event of a witness being re-called and re-examined, care must be taken to provide to the opposite side an opportunity to cross-examine the witness as well. This is not at the discretion of the Inquiring Authority – but a mandate of the principle of natural justice which requires providing reasonable opportunity of defence.

29. Can a hearing be held in the absence of the CO?

In this connection, Vigilance Manual, 1999 Edition provides as under:

If in any particular hearing, the accused officer is unable to come for any reason, his Assisting Officer can proceed with the case if he has authorization to this effect from the accused officer. Similarly, the Assisting Officer can submit the defence of the delinquent officer contemplated in Rule 14 (16) of the CCS (CCA) Rules, 1965, if he holds authorization to this effect from the delinquent officer.

30. Can the inquiry proceed without the charged officer?

Following provision of the Vigilance Manual is relevant in this connection:

If in any particular hearing, the accused officer is unable to come for any reason, his Assisting Officer can proceed with the case if he has authorization to this effect from the accused officer. Similarly, the Assisting Officer can submit the defence of the delinquent officer contemplated in Rule 14 (16) of the CCS (CCA) Rules, 1965, if he holds authorisation to this effect from the delinquent officer.

31. Can the Inquiring Authority question the witnesses?

Rule 14(14) explicitly provides that the Inquiring Authority may also put such questions to the witness as it thinks fit. Two cautions must be borne in mind while exercising this statutory right. Firstly, the parties to the proceedings acquire a right to cross-examine the witness on the issued over which the Inquiring Authority has examined the witnesses. Secondly, the questions must not be with the object of establishing the charge. Such questions may put the Inquiring Authority in the mantle of the Presenting Officer which may lead to quashing of the proceedings on the allegation of bias.

32. Can the Inquiring Authority question the charged officer?

The Inquiring Authority is required under Rule 14(18) to question the Charged Officer generally about the circumstances appearing against him. However, probing questions which may lead to incrimination of the Charged Officer will cast aspersions about the role of the Inquiring Authority.

Inquiry proceedings were set aside in Moni Shankar Vs. Union of India (UOI) and Anr. [JT2008(3) SC484, (2008)3SCC484, 2008 (3)SLJ325(SC)] for the reason that the Inquiring Authority had exceeded his limit in asking the mandatory question, as may be seen from the following:

The Enquiry Officer had put the following questions to the appellant:

Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the Enquiry?

Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.

33. What is mandatory question?

Rule 14(18) has a provision that empowers the Inquiry Authority to question the Charged Officer. This question shall be asked in the cases wherein the CO had not presented himself as a witness. Probably the use of the word “shall” in the sub rule has resulted in this being called a ‘mandatory’ question. However, it must be understood that it may not be a question at all. The purpose of this question is to enable the CO to explain the circumstances against him. The IO is expected to question the CO “on the circumstances appearing against him” so that the CO can defend himself appropriately.

34. What happens if the deposition of a witness is in a language other than English or Hindi (whichever is the language of the proceedings)?

In this connection, Para 13.6 of the Vigilance provides as under:

13.6 If a witness deposes in a language other than English but the depositions are recorded in English, a translation in the language in which the witness deposed should be read to the witness by the Inquiry Officer. The Inquiry Officer will also record a certificate that the depositions were translated and explained to the witness in the language in which the witness deposed.

35. What happens if a witness fails to turn up for examination?

A government servant summoned by the Inquiring Authority for tendering evidence in a disciplinary proceeding is bound to attend the same. Failure to do so will amount a misconduct. Therefore, if a witness fails to turn up for inquiry without proper justification the Inquiring Authority may report the matter to the controlling officer of the witness so that disciplinary action could be initiated.

36. Who bears the expenditure incurred by the witnesses and parties for attending the inquiry?

In respect of serving Government Servants, the expenses are to be borne by the respective organization where the witness is employed based on the certificate issued by the Inquiring Authority. Otherwise, the expenses will have to be met by the Disciplinary Authority.

37. What facility is provided to the Inquiring Authority for expeditious completion of the proceedings?

DoP&T OM No. 142/5/2003-AVD.I dated 6.4.2004 provides that Inquiring Authority may be relieved of normal duties for 20 days in two spells for timely completion of inquiry.

1. What is the purpose of the written brief of the Presenting Officer?

Submission of the written brief is the culmination of the activities of the Presenting Officer. During the hearing, the parties to the proceedings present documentary evidence and lead oral evidence. Evidence presented during the hearings serve the purpose of presenting facts. The facts must lead to some inference. The link between the bare facts and the inference is required to be established through logic.

Towards this end, Rule 14(19) of the CCA Rules provides as under:

“The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire.”

2. Which is a better course of action – making verbal submissions or filing written briefs?

Lawyers generally argue the cases on conclusion of the examination of witnesses in the judicial proceedings. In most of the disciplinary cases, the summing up of the case is done through submission of written briefs. All the parties to the proceedings prefer the submission of written briefs because of the following reasons:

If the case is argued orally, the Inquiring Authority will have to take down notes of the argument and the same will again have to be reduced to writing. Submission of written briefs saves this extra labour for the Inquiring Authority.

Arguing a case is a more difficult task than leisurely writing a brief. Argument calls for certain additional skill i.e. Presentation skills, verbal fluency, presence of mind, etc.

Officials are mostly familiar with the written submission of their proposals and would feel at home while preparing written briefs.

While arguing a case one may miss a point. But written briefs can always be rechecked and shown to an expert before submission and omissions can be avoided.

Above all, the Presenting Officer can get his written brief vetted by the appropriate authorities before submission to the Inquiring Authority.

3. What is the source material from which Presenting Officer prepares the written brief?

The content of the written brief of the Presenting Officer is derived from the following:

a) Charge Sheet

b) Statement of defence given by the Charged officer at various stages

c) Evidence led on behalf of the parties – documentary and oral

d) Daily Order Sheets

e) Interlocutory Orders passed by the Inquiring Authority in the course of Inquiry

4. What information in the Daily Order sheet and the Interlocutory Orders passed by the Inquiring Authority are of use in the written brief of the Presenting Officer?

It is good practice for the Presenting officer to highlight that the charged officer has been given full opportunity of defence in the Inquiry – say the adjournments sought by him were granted, documents sought by him were made available, etc. Information In this regard, will be available in the Daily Order Sheets and the Interlocutory Orders of the Inquiring Authority.

5. What is the sequence in which the briefs are presented by the Presenting Officer and the charged officer?

Presenting Officer’s brief is to be submitted first. Charged officer is allowed to file his/her brief after perusal of the written brief submitted by the Presenting Officer.

6. What is the authority or justification for asking the Presenting Officer to submit brief in the first instance?

Rule 14 (19) does not explicitly state that the Presenting Officer’s brief must be submitted in the first instance. However, DoPT OM No. 11012/18/77-Estt.(A) dated 2 Sep 1978 provides that the Presenting Officer’s brief must be submitted in the first instance and a copy thereof must be made available to the charged officer. This OM explicitly states

“In case the copy of the brief of the Presenting Officer is not given to the Government Servant, it will be like hearing arguments of the Presenting Officer at the back of the Government Servant. In this connection attention is also invited to the judgment of the Calcutta High Court in the case of Collector of Customs Vs. Mohd. Habibul [(1973) 1 SLR 321 (Cal)] in which it is laid down that the requirements of Rule 14(19) of the CCS (CCA) Rules 1965 and the principles of natural justice demand that the delinquent officer should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief.”

7. While the charged officer has the benefit of knowing the submissions of the Presenting Officer before preparing the defence brief, the latter is denied a similar opportunity. Does it not put the Presenting Officer in a disadvantageous position?

One of the cardinal rules in criminal jurisprudence is that the prosecution has to prove the case without relying upon the defence. The following observation of the Hon’ble Supreme Court in Sharad Birdhi Chand Sarda vs State Of Maharashtra on 17 July, 1984 [1984 AIR 1622, 1985 SCR (1) 88] is relevant in this context:

It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view.

Accordingly, the Presenting Officer has to submit his/her written brief without any reference to the submissions by the charged officer.

On the other hand, the charged officer has to counter the allegations leveled in the charge sheet and controvert the submissions by the Presenting Officer. Thus, it is in order that the Presenting Officer’s written brief is made available to the charged officer and not vice versa.

8. What are the points to be taken care of by the Presenting Officer while preparing the written briefs?

a) Form: Although no form has been prescribed for the written brief of the Presenting Officer it is desirable that the same conforms to a form which will facilitate easy presentation and effective communication of the ideas

b) Facts: The brief should contain all the relevant facts which help in establishing the charge and also the fact the charged officer has been provided with reasonable opportunity. Every inference/conclusion in the brief must be duly supported by evidence. This the facts based on which the conclusions are drawn must be pointed out,

c) Logic: Bare facts may not be able to lead to any conclusion. The facts are to be linked to the charge through logic.

d) Language: Although, ideas constitute the backbone of the brief, yet the language must be faultless, powerful, impressive and easy to understand.

9. What form will be appropriate for the written brief of the Presenting Officer?

A suggested form is appended later on of this website.

10. What is the role of logic in the written brief of the Presenting Officer?

We have seen in an earlier chapter that a charge stems from a set of facts. The Facts are proved through evidence. Logic is the linkage which connects evidence to the charge through facts.

For example, the charge against an officer is that he had issued a false certificate of having inspected a product on a date when the product was not in existence. Following pieces of evidence were produced during the inquiry:

a) Inspection report dated Day D duly signed by the charged officer

b) Stock register of finished product as on D-4

c) Stock register of the raw material as on D-10

d) Gate pass for exit of the finished product on D-3, D-2 and D-1

e) Entry record of raw material for D-9 to D-1

f) Expert opinion on how much raw material would be required for preparing one unit of product.

Above facts are seemingly disjointed and do not lead anyone anywhere. There is a logical chord running through the above disjoint pieces of facts, which will lead to the establishment of the charge when linked logically. Presenting Officer’s job is to show as to how different pieces of evidence taken together lead to establishing the charge.

11. How important is the role of language in the preparation of the written brief of the Presenting Officer?

The basic purpose of preparing the written brief is presenting the details and convincing the Inquiring Authority about the reasons for concluding that the charges are proved. The facts to be presented in the brief may be many. The analysis and presentation of these facts call for communication skill of a fairly high order. The brief is required to be read and understood by the Inquiring Authority without any clarification from the Presenting Officer. (Obviously, the Inquiring Authority will be reading the brief at his convenience and the Presenting Officer is not expected to be present for offering any explanation).

Besides, verbal presentation has certain advantages such as body language, voice modulation, volume, pitch, etc. If the case is verbally argued, the Presenting Officer may be able to emphasize his points by raising his voice or slowing the pace of delivery. On the other hand, the Presenting Officer is arguing his case through the written brief and hence his brief must be able to speak loud and clear. Therefore, special efforts must be made by the Presenting Officer to prepare his written brief in a lucid style, endowed with a logical sequence. The Presenting Officer should therefore adopt an effective style of writing. It is desirable to type the vital points in bold letters or otherwise highlight the same.

12. How many copies of the written brief are to be submitted by the Inquiry Authority?

Ideally, the Presenting Officer should prepare as many copies of the written brief as the number of charged officers (applicable in the case of common proceedings) and an additional copy each for the Inquiring Authority and the Disciplinary Authority. This will obviate the need for preparation of additional copies by the Inquiring Authority.

13. To whom does the Presenting Officer send the written brief?

Normally, Inquiring Authorities adopt two methods for obtaining the briefs from the parties:

The Inquiring Authority may direct the Presenting Officer to submit two copies of the brief so that it (Inquiring Authority) may forward a copy to the Charged Officer.

Alternatively, The Inquiring Authority is also at liberty to direct the Presenting Officer to forward a copy of the written brief to the Charged Officer and then send another copy to the Inquiring Authority along with proof of delivery to the charged officer.

In the later event, care must be taken by the Presenting Officer to obtain the acknowledgment of the Charged Officer for the delivery of the brief. A copy of proof of delivery of the brief to the Charged Officer must be sent to the Inquiring Authority along with the copy of the brief meant for the Inquiry Officer.

In either case, the time limit prescribed by the Inquiring Authority for submission of the brief must be strictly adhered to. If, on account of any unavoidable reason, the time limit could not be complied with, Inquiring Authority must be informed of the reason and extension obtained with the knowledge of the Charged Officer.

Introduction: It is desirable that the brief starts with an introduction wherein the details of the case may be given. The introduction may run something like this:

“Charges were framed by xxxxx (Disciplinary Authority) against Shri. ABC (name and designation), under Rule 14 of the CCS (CCA) Rules 1965 vide OM No. xxxxx dated xxxxx. On the denial of the charges by Shri ABC, it was considered necessary by the Disciplinary Authority to hold an inquiry into the matter and accordingly Shri. Mmmmmm (name and designation) was appointed as the Inquiring Authority and the undersigned viz. ssssssss (name and designation) was appointed as the Presenting Officer. Inquiry was held during xxxxx (date of commencement of the inquiry) and yyyyyyy (date of conclusion of the inquiry). The Inquiring Authority ordered on yyyyyy that the written brief of the Presenting Officer be submitted by zzzzzz (date). Subsequently, on the request of the Presenting Officer time for submission of the brief was extended to kkkkk under intimation to the charged officer. Accordingly, this written brief is being submitted.”

Charge: The second item in the written brief must be the details of the charges.

The para may read

“The articles of charge framed against Shri. ABC are: mmmmmmm,mmm”

Proceedings during the Preliminary Hearing: Details such as the denial of the charges by the Charged Officer during the Preliminary Hearing, the details of the State documents admitted and disputed by the Charged Officer may be indicated here.

Opportunities given to the Charged Officer: Providing reasonable opportunity to the Charged Officer is an essential requirement of the disciplinary proceedings. Besides, the Charged Officer is likely to mention in his written brief that he was not provided with reasonable opportunity. Hence, the Presenting Officer should commence his contentions with a submission about the opportunities given to the Charged Officer. Presenting Officer should highlight the opportunity given to the Charged Officer for presenting additional documents/witnesses. Besides, permission granted to the Charged Officer for engagement of Defence Assistant, any lenience shown to the Charged Officer, any facility availed by him, etc. may be specifically brought out here. It is desirable that the Presenting Officer anticipates the arguments likely to be taken by the Charged Officer and provides answers to the same, to the extent possible. If any document which was totally irrelevant was requested by the Charged Officer and the same was denied by the Inquiry Officer, one can be more than sure that the Charged Officer will be mentioning the same in his written brief and trying to argue that he was denied reasonable opportunity. The Presenting Officer should anticipate such argument and highlight in his brief that the Charged Officer was provided with reasonable opportunity.

Case of the Disciplinary Authority: This paragraph will predominantly rely on the statement of imputations of the misconduct. Here the Presenting Officer may indicate the facts on the basis of which the charge is required to be proved.

Evidence on behalf of the Disciplinary Authority: After narrating the case of the Disciplinary Authority, the Presenting Officer may give the details of the evidence actually led on behalf of the Disciplinary Authority vis-a-vis the evidence mentioned in the Charge Sheet (Annexures III and IV). Any deviation, such as not presenting any witness mentioned in the charge sheet or presenting additional witnesses with the permission of the Inquiring Authority may also be indicated.

Evidence on behalf of the Charged Officer: The details of the oral and documentary evidence presented by the Charged Officer may be listed here.

Evaluation of evidence: This is the most crucial portion of the written brief. In this portion, the Presenting Officer should highlight the facts established by each piece of evidence. There are two ways of achieving this, viz.

The Presenting Officer may take up the facts to be established for proving the charge one by one, and indicate the evidence which establishes the fact.

Alternatively, the Presenting Officer may take up each item of evidence presented on behalf of the Disciplinary Authority and indicate what points have been established by each piece of evidence.

Analysis of the case of the Charged Officer: Although the case of the Disciplinary Authority is to stand on its own legs, it is advisable for the Presenting Officer to anticipate and counter the submissions of the Charged Officer. This will help the Inquiring Authority to evaluate the complete case and draw final conclusions. However, this is an area where the Presenting Officer will have to do considerable brain teasing. The case of the Charged Officer can be inferred only from his submissions. But some Charged Officers do not present any written submissions till the conclusion of the hearing. Even the written Statement of Defence in response to the Charge Sheet will contain a one-line denial such as “I deny the charges”. As a result, the Presenting Officer may not have any document indicating the stand of the Charged Officer. Under such circumstances, the Presenting Officer will have to construct the case of the Charged Officer from the evidence produced by him. The Presenting Officer should try to undermine the value of the defence witnesses citing acceptable reasons. In this paragraph, the Presenting Officer’s argument should run on the following lines:

a) That the case of the Charged Officer is not logically possible.

b) That the Charged Officer has failed to establish what he tried to do.

c) That the witnesses led by the charged officer are not reliable because of contradictions with the established facts.

d) That the defence witnesses were interested parties and hence their evidence cannot be relied upon.

e) Inconsistency and absence of corroboration in the statements of the Defence Witnesses.

Conclusion: Finally, the brief of the Presenting Officer should contain a specific assertion to the effect that on the basis of the evidence presented during the Inquiry, Charges should be held as proved. At this stage, the Presenting Officer should not bother about adequacy of evidence. If there is some evidence pointing towards the guilt of the Charged Officer, the charges should be held proved on the basis of preponderance of probability. If the evidence produced in the inquiry leads to proof beyond doubt, the Presenting Officer should specifically mention the same in his brief.

"The astonishing amount of perjury in courts of law is a sad commentary on human veracity. In spite of the oath, more untruths are probably uttered in court than anywhere else. This deviation from veracity ranges from mere exaggeration all the way to vicious perjury. Much of this untrue testimony grows directly out of human nature under unusual stress and is not an accurate measure of truth-speaking general. In order to shield a friend or help one to win in what is thought to be a just cause, or because of sympathy for one in trouble, many members of the frail human family are inclined to violate the truth in a court of law as they will not do elsewhere."

In the words of Osborn (The problem of proof - Albert S. Osborn, PP 22, 23, New York, Matthew Bender and Co. 1926 - quoted in (2) ibid, P.226).

The above stated nature of human beings makes the task of the functionaries in Disciplinary Proceedings all the more challenging. Culling out truth from the conflicting statements of the contesting parties is perhaps the most challenging part of the assignment of the Disciplinary Authority and the Inquiring Authority. This complex process is known as evaluation of evidence.

Evaluation of evidence is perhaps the most complex and challenging area in the gamut of activities during departmental proceedings. Skill in evaluation of evidence is required to be possessed by almost all the functionaries. Presenting Officer is required to evaluate evidence and present his version in the brief of the PO. Inquiring Authority is required to evaluate evidence to arrive at the conclusion as to whether the charges are proved. Disciplinary Authority is required to make first hand appraisal of evidence and take a view as to whether the Inquiring Authority’s conclusion are acceptable. Appellate Authority is also required to perform the above function.

Although skill can be developed through exercises, case studies, etc. in this chapter an attempt is being made to provide the underpinning knowledge necessary for evaluation of evidence.

1. What are the various types of evidence led in departmental proceedings?

Generally, two types of evidence are led in departmental evidence viz.

a) documentary evidence and

b) oral evidence.

In contrast, in criminal trials certain objects (such as weapons or clothes worn by the victim, etc.) may also be produced as evidence and these are known as Exhibits.

2. What is the role of evidence in deciding the case?

Following are some of the cardinal principles in drawing conclusions in judicial/quasi- judicial proceedings:

a) Conclusions must be based on evidence

b) There is no room for conjectures or surmises in drawing conclusions

c) Reliance must be placed on the evidence made available to the Charged Officer during the inquiry

d) No evidence behind the back of the Charged Officer.

e) Decision making authorities should not import personal knowledge into the case

3. What is meant by the standard of proof?

Standard of proof or level of proof, refers to the quality of evidence produced to establish a fact. In a sense it indicates as to how strongly the evidence establishes the fact it purports to prove. Generally, the following three levels of proof are referred to in judicial/legal proceedings:

a) Preponderance of probability

b) Clear and convincing evidence

c) Proof beyond reasonable doubt

4. What is the difference between the criminal trial and departmental proceedings in so far as evaluation of evidence is concerned?

Generally, the following three points of distinction exist between criminal trial and departmental proceedings in so far as evaluation of evidence is concerned:

In criminal proceedings, standard of proof required is proof beyond reasonable doubt. On the other hand, preponderance of probability is adequate to establish the charge in departmental proceedings.

Hearsay evidence is strictly prohibited in criminal trials. However, there is no bar against the reception of hearsay evidence by domestic tribunals. What value is to be attached to such evidence depends upon the facts and circumstances of each case.

In domestic inquiries, a relaxed procedure is adopted for allowing circumstantial evidence.

5. What is pre-ponderance of probability?

Literal meaning of the word preponderance: is superiority in power, influence number or weight. As a level or standard of proof, pre-ponderance of probability means “more likely to have happened than otherwise.

6. What is hearsay evidence?

When a witness states a fact based on what he/she had heard from some other source without being a direct witness to the event, evidence tendered by such a person is known as hearsay evidence

7. What are the rules regarding the admissibility of hearsay evidence?

Hearsay evidence is prohibited in criminal trials. On the other hand, during departmental proceedings hearsay evidence can be taken into account in establishing the charge if there is corroborative material’.

8. What is circumstantial evidence?

Circumstantial evidence is the opposite of direct evidence. When no eyewitness is available, issues can be decided based on circumstantial evidence.

9. What are the rules regarding circumstantial evidence?

Tests laid down by the Hon’ble Supreme Court in the Case of Hanumant Vs. State of Madhya Pradesh [AIR 1952 SC 343, 1953 CriLJ 129, 1952 1 SCR] is applied in the matter of evaluation of circumstantial evidence in criminal trials. This has been reiterated in the case of Sharad Birdhi Chand Sarda vs State Of Maharashtra [1984 AIR 1622, 1985 SCR (1) 88] in the following terms:

A) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

B) The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

C) The circumstances should be of a conclusive nature and tendency.

D) They should exclude every possible hypothesis except the one to be proved, and

E) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.”

In quasi-judicial proceedings, relaxed norms are applied based on the principle of pre-ponderance of probability rather than conclusive nature of evidence and excluding every other hypothesis.

10. Can a charged officer be acquitted of the charges even without putting up any defence at all?

The charge leveled by the Disciplinary authority needs to be proved by leading evidence on behalf of the Disciplinary Authority. Charged officer has no duty to prove his innocence. Hence the charged officer can be acquitted based on the failure of the Presenting officer to establish that the charges have been proved.

11. What is the concept of burden of proof?

General rule is that one who wants the court (or the Inquiring Authority) to believe something, must lead evidence to establish the fact. This is known as the burden of proof.

If the disciplinary authority has leveled the charge that an employee had left the office before closing hours and without taking permission, evidence must be led on behalf of the Disciplinary Authority to establish the same. If the defence of the Charged Officer contends that that he/she had taken permission to leave early, he/she must lead evidence to establish this fact. If the stand of the Disciplinary Authority is that the officer from whom the Charged Officer claims to have taken permission is not competent to grant permission, it is for the Disciplinary Authority to lead evidence in support of this fact.

12. Can the statement of a witness be taken into account, even if he/she was not subjected to cross-examination?

Witnesses are to be offered for cross examination. If the opposite side chooses not to exercise the right of cross-examination, there is no bar in taking into account the statement of such witnesses. If cross examination of a witness is not allowed or the witness did not present himself/herself for cross-examination, the statement of such witness should not be taken into consideration at all, Union of India Vs. P Thiagarajan [1998(8) JT 179]

13. What are the factors based on which the statement of a witness is given credence?

The credibility factors in respect of oral evidence can be seen in attached .pdf.

14. How far the credibility of a witness depends upon his/her status?

Status has no role in determining the credibility of witness.

15. What is meant by demeanour?

Demeanour denotes the posture and behavior of the witness while deposing. This constitutes an important input in determining the credibility of evidence tendered by the witnesses. Generally, the following constitute demeanour:

a) hesitation

b) doubts

c) pace of deposition

d) variations in tone

e) confidence

f) calmness

g) posture

h) eye contact or the lack of it

i) facial expression i.e. bright or pale, etc.

Criminal Procedure Code provides that Magistrate should make note of the demeannour of the witnesses. Similarly, the Inquiring Authority should also make note of the demeanour of the witnesses.

16. What are the general principles for evaluation of evidence?

a) Evidence is to be weighed; not counted

b) Affirmative statements carry more weight than negative statements

c) Actions carry more weight than words

d) Even un- impeached evidence may be rejected

e) Rejection of evidence by one does not necessarily mean the acceptance of the opposite

17. Is there any exception to the rule that facts must be established through evidence and the decision-making authority must not import personal knowledge into the case?

Irrefutable matters of common sense and laws of science do not require any evidence. For example, it is a matter of common sense that capacity of a super deluxe bus cannot be seventy-five. An Inquiry authority may reject evidence to the effect that a person travelled in a super deluxe bus carrying eighty passengers from Delhi to Kanyakumari. There is no need for controverting the above statement through the crew of the bus or another witness who had seen the above bus. Similarly, an Inquiring Authority can conclude that any object thrown above has to come down. There is no need for a physics professor to come and testify about the law of gravitation.

1. What is ex-parte Inquiry?

An inquiry in which the charged officer is not represented is known as ex-parte inquiry

2. What is the statutory provision regarding ex-parte proceedings?

Rule 14(20) of the CCA Rules provides as under:

“If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.”

3. What are the conditions under which ex-parte inquiry may be resorted to?

As may be seen from the above extracted provision of the Rule, ex-parte inquiry can be resorted to only when the following conditions are satisfied:

a) Articles of charge should have been delivered

b) The charged officer had failed to submit the written statement of defence on or before the specified date or

c) Does not appear in person before the Inquiring Authority or

d) Fails or refuses to comply with the provisions of the CCA Rules

4, If delivery of articles of charge is pre-requisite for conducting ex-parte inquiry, what will be the possibility of going ex-parte when the charged officer evades or refuses acceptance of Charge Sheet?

Firstly, it must be appreciated that delivery of charge Sheet does not mean physical delivery and obtaining an acknowledgement therefor. Constructive delivery of Charge Sheet is adequate to hold that the articles of charge have been delivered.

In this connection, para 20.2 of Chapter X of the Vigilance Manual Volume I (1991 Edition) is extracted hereunder:

“20.2 If the Government servant evades acceptance of the articles of charge and/or refuses to accept the registered cover containing the articles of charge, the articles of charge will be deemed to have been duly delivered to him as refusal or a registered letter is normally tantamount to proper service of its contents.”

As a measure of precaution, the charge sheet may be pasted on the notice board, doors of the residence of the charged officer, uploaded on the web site of the organization and an advertisement may be issued in a newspaper regarding the initiation of the disciplinary proceedings. For the pasting of the charge sheet on the doors, independent witnesses’ statements may be obtained.

5. Is there any difference between holding ex-parte inquiry and dispensing with Inquiry under Rule 19 (ii) of the CCA Rules?

The differences exist between ex-parte inquiry and dispensing with Inquiry can be seen in attached .pdf. From the attached file, it may be seen that ex-parte inquiry provides better protection to the employee and therefore dispensing with inquiry should not be treated as a substitute for ex-parte inquiry. Where there is scope for holding ex-parte inquiry, the authorities should not resort to dispensing with inquiry under Rule 19(ii).

6. What precautions are necessary before for conducting ex-parte inquiry?

Following pre-cautions are necessary before resorting to ex-parte inquiry”

a) Before proceeding ex-parte, Inquiring Authority must ensure that communications are being sent to the correct address of the Charged Officer

b) Secondly, it must be ensured that sufficient time is being provided for attending the inquiry, with due regard to the travel arrangement between the place of the inquiry and place of posting or residence of the Charged Officer.

c) Thirdly the Inquiring Authority must ensure that the Charged officer is not on sanctioned medical leave or on any official assignment

d) If the Charged Officer is under suspension, Inquiring Authority must check whether the non-attendance is attributable to the non-payment of subsistence allowance

e) Whether the Charged Officer has been warned that continued absence would result in the proceedings being conducted ex-parte

7. Can the inquiry be held ex-parte if the charged officer seeks adjournment on medical ground without producing medical certificate?

It has been held in the case of Union of India Vs. I S Singh [1994 SCC Supl. (2) 518] that under such a situation, the Inquiring Authority should either ask for a copy of the medical certificate or in case of doubt, direct the charged officer to get examined by a medical officer. Taking recourse to ex-parte inquiry would amount to violation of the principle of natural justice. The following extract is relevant:

So far as the second ground is concerned, a few facts need be stated. An inquiry was held, in the first instance, which was not found to be in order by the disciplinary authority who directed a fresh inquiry. When notices were issued in the second inquiry, they could not be served on the respondent. On a later date, the respondent sent an application stating that he is suffering from unsoundness of mind and that the inquiry may be postponed till he regains his mental health. The respondent also states that he sent his medical certificate along with he is application. (Indeed, according to him, he sent not one but three letters to the said effect.) The report of the Enquiry Officer, however, does not show that he paid any attention to these letters. If, indeed, the letters were not accompanied by medical certificates, as is now asserted by Shri Mahajan, learned counsel for the appellants, the proper course for the Enquiry Officer was to have called upon the respondent either to produce a medical certificate or to direct him to be examined by a medical officer specified by him. The inquiry report does not even refer to the request contained in the said application nor does it mention why and for what reasons did he ignore the said plea of the respondent. The Enquiry Officer proceeded ex parte, in spite of the said letters and made his recommendation on the basis of which the aforesaid penalty was imposed. It is evident from the facts stated above that the Enquiry Officer has not only conducted the inquiry in a manner contrary to the procedure prescribed by Rule 14(2) of CCS (CCA) Rules but also in violation of the principles of natural justice.

8. What procedure is to be followed during ex-parte proceedings?

During ex-parte proceedings, the Presenting Officer should be directed to lead evidence and establish the charge.

As the Charged Officer does not participate in the proceedings, the stage of cross – examination of State Witnesses may not take place. However, the Inquiring Authority is at liberty to put questions as it thinks fit. Power in this regard has been given under Rule 14(14) of the CCA Rules. Inquiring Authority should however ensure that the questions put by it are not such as to establish the charge. Any questions of this nature may present the Inquiring Authority as wearing the mantle of Presenting Officer and cast aspersions on its neutrality.

Even though the Charged Officer is not attending the Inquiry, the Inquiring Authority should ensure that copies of all the documents relating to the inquiry are sent to the Charged Officer – for example the Daily Order Sheets, statements of the witnesses, written brief of the Presenting officer, etc.

The Inquiring Authority should submit its report to the Disciplinary Authority together with other documents as in any other inquiry.

9. Can the Charged Officer be allowed to participate in the ex-parte inquiry at a later stage?

Ex-parte inquiry, once commenced, does not amount to closing the doors for the Charged Officer. This is only an enabling provision which provides for continuing with the inquiry despite non-co-operation by the Charged Officer. It should not be perceived as a penal provision for putting the Charged Officer to a disadvantage. The Charged Officer who could not or intentionally did not attend a few hearings does not lose his/her right of reasonable opportunity of defence. Accordingly, the Charged Officer cannot be prevented from participating in the inquiry at a later stage.

There may be cases wherein the Charged Officer may try to put the clock back i.e. the Charged Officer may like a witness to be recalled and cross-examined. Such requests need to be considered on merit. If the Charged Officer provides sufficient satisfactory reason for non-appearance, the request for putting the clock may be considered.

Thus, the position can be summarized as under:

a) Future participation is a matter of right of the Charged Officer

b) Putting the clock back is a matter of discretion of the Inquiring Authority

1. What is the status of relationship between a pensioner and the former employer?

Rule 8 of the CCS (Pension) Rules 1972 provides that grant and continuance of pension is subject to future good conduct.

2. What are the conditions under which pension can be withheld or withdrawn?

Following are the two conditions under which pension may be either withheld or withdrawn: When the pensioner is

a) convicted of a serious crime or

b) found guilty of a grave misconduct

3. Who has power to withhold or withdraw pension?

Rule 8(1) (b) of the Pension Rules provides that Appointing Authority order withholding and withdrawing pension

4. What is the procedure to be followed in the case of a pensioner convicted of a serious crime?

As per rule 8(2), action regarding withholding or withdrawing pension is to be taken in the light of the judgment of the court relating to the conviction.

Although it is not explicitly stated in the rules, such an action should be preceded by issue of a show cause notice and examination of the reply by the pensioner. This course of action will be on the same analogy with Rule 19(i) of CCA Rules under similar circumstances.

5. What is the procedure to be followed in the case of a grave misconduct?

Rule 8(3) provides for issue of a notice specifying the action proposed to be taken and the grounds for the same. Time of fifteen days may be granted for reply which is extendable for another span of fifteen days. Final order may be passed taking the reply into account.

6. What is the scope of the expressions serious crime and grave misconduct occurring in Rule 8(1)?

The expressions have not been defined in the rule. However, Explanation (a) and (b) under Rule 8 indicate that phrases include violation of the provisions of Official Secrets Act 1923. Reference to the above is an indication of the level of the violations which warrant action under Rule 8 of the Pensions Rules.

7. What is the scope regarding the quantum and duration of reduction of pension under Rule 8 of the Pension Rules?

Proviso to Rule 8(1) provides that reduction cannot be below the amount of Rs. Three thousand five Hundred. The reduction can be for a specified period or permanently.

8. What other condition must be satisfied while exercising the powers under Rule 8 of the Pension Rules?

Rule 8 (4) provides that where President is the competent authority, Union Public Service Commission must be consulted before passing of the order.

9. What action can be taken as regards pension and gratuity in respect of a misconduct committed during service?

Rule 9 of the CCS (Pension) Rules 1972 lays down the following three powers for the President as regards pension and gratuity:

a) Withholding pension or gratuity, or both, either in full or in part,

b) Withdrawing pension in full or in part, whether permanently or for a specified period,

c) Ordering recovery from pension or gratuity of the whole or part of any pecuniary loss caused to the Government,

10. What are the circumstances under which the powers under Rule 9 of the CCS (Pension) Rules can be invoked?

Powers under Rule 9 can be invoked “if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of service, including service rendered upon re-employment after retirement”

11. What the scope regarding the quantum of reduction of pension under Rule 9 of the Pension Rules?

Second proviso to Rule 9(1) of the Pension Rules provides that where a part of pension is withheld or withdrawn the amount of such pensions shall not be reduced below the amount of rupees three thousand five hundred per mensem.

12. What are the similarities and distinctions between Rule 8 and Rule 9 of the CCS (Pension) Rules? Similarities

a) Both deal with reduction of Pension

b) Both prescribe a minimum pension to be left after withdrawal/withholding

c) Withdrawal may be for specified period or permanently

Points of distinctions can be seen in attached .pdf file.

13. What are the major distinctions between initiating disciplinary proceedings before retirement and those initiated thereafter?

Distinctions can be seen in attached .pdf file.

14. What is the legal sustainability of continuing the proceedings after the retirement of the delinquent?

This question came up for consideration of the Supreme Court in the case of D V Kapoor Vs. union of India [1990 AIR 1923, 1990 SCR (3) 697, 1990 SCC (4) 314, JT 1990 (3) 403] and the Hon’ble Supreme Court had ruled as under:

In the instant case, merely because the appellant was allowed to retire, the Government is not lacking jurisdiction or power to continue the proceedings already initiated to the logical conclusion thereto. The only inhibition is that where the departmental proceedings are instituted by an authority subordinate to the President, that authority should submit a report recording its findings to the President. That has been done, and the President passed the order under challenge. Therefore, the proceedings are valid in law and are not abated consequent to voluntary retirement of the appellant and the order was passed by the competent authority, i.e. the President of India.

15. What happens to the ongoing disciplinary proceedings which could not be completed before the retirement of the employee?

As stated above, the proceedings can be continued under Rule 9(2) (a) of the Pension rules subject to the condition that the findings will be submitted to the President.

16. What is the position regarding disbursement of retirement benefits in respect of a person against whom disciplinary proceedings are pending at the time of superannuation?

Hon’ble Supreme Court in its judgment dated 14 August 2013 in Civil Appeal No.6770/2013 [State of Jharkhand & Ors. Vs Jitendra Kumar Srivastava has held that pension and pensionary benefits being a form of property, a person can be deprived of it only through the authority of law, as prescribed in Article 300A of the Constitution. Executive instructions cannot take the place of law and therefore in the absence of any provision in any of the Rules, for example, Pension Rules, 1972 any action to deprive the retired employee of the retirement benefits would be illegal. It is significant to note that Rules 8 and 9 of the Pensions Rules provide for withholding of pension only if the Government Servant is found guilty. Although the above judgment is based on the rules applicable to the Jharkhand State, the position does not appear to be different in the light of the CCS Pension Rules 1972 either.

17. In the light of the four-year limitation for initiation of post-retirement disciplinary proceedings, what is the effective date of commencement of proceedings?

Rule 9(6) of the Pension Rules provides as under

a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted –

i. in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and

ii. in the case of civil proceedings, on the date the plaint is presented in the court.

18. Is there any condition regarding the time gap between the misconduct and initiation of proceedings as regards proceedings initiated before retirement and continued thereafter?

The Pension rules do not prescribe any fetter in this regard giving an impression that a charge sheet can be issued on the date of retirement in respect of misconduct committed decades ago and the proceedings can be continued under Rule 9(2)(a) of the Pension Rules. However, the following observation of the Hon’ble High Court of Delhi in O.P. Gupta v. Union of India 1981(3) SLR 778, lays down that the four-year limitation applies even in respect of such cases:

"17. In other words, is the deeming provision in Rule 9 so unbridled? Can the provision be used to keep the inquiry alive for any number of years or indefinitely? Can it be 'deemed' that even after 20 years the inquiry is still not concluded, as in the present case? Considering public interest and difficulties in Government administration, I am of the opinion that power to continue or to start a disciplinary proceeding after retirement may be necessary in certain cases. By itself the power is not arbitrary. It has a rational basis. But the power must be exercised, within a reasonable period and consistent with justice and public interest. In Mohambhai v.Y.B. Zala 1980(1) SerL&R324: Gujarat High Court held that starting of a departmental enquiry 11/2 years after the incident, was violative of natural justice. The Court held that it was too much to expect that delinquent would be able to remember and narrate the old incident. We have here the lapse of more than 20 years. If Rule 9 is to be saved from the attack of arbitrariness it must be read in a reasonable and just manner. A guideline is available in Rule 9(2)(b). A fresh inquiry cannot be started 'in respect of any event which took place more than 4 years before such institution'. This statutory limitation embodies sound principle of equity and justice. It also recognizes the principle of finality and repose. I do not find any difference in principle from the point of view of public interest,' in continuation of pending proceeding and starting afresh proceeding'. I, therefore, hold that in case of an event more than four years old on the date of retirement, a department proceeding cannot be continued after retirement under Rule 9(2) of the Pension Rules, 1972. It is well settled that requirement of natural justice can be read in a Rule even if the Rule is silent about it, particularly in a Rule concerning quasi-judicial proceeding. In this view of the matter, I hold that the departmental proceeding, if any, pending against the petitioner after 30.3.1975 is bad in law. The same is hereby set aside".

The above ruling of the Hon’ble High Court of Delhi has been followed by the Tribunal in O.A. 1065/2002 in D.N. Vohra v. Union of India, decided on 31.10.2003 as stated in Smt. Santosh Verma Vs. The Commissioner, Kendriya Vidyalaya Sangathan and Ors. O.A. No. 2469 of 2003 Decided On: 18.05.2004 [2005(1) SLJ383(CAT)]

19. What is the impact of minor penalty proceedings on pension?

There was considerable ambiguity in the area for some time. Presently, based on the decision of the Hon’ble Central Administrative Tribunal Principal Bench. Delhi in OA no 2068 of 2002 (R Sagar, NOIDA-UP Vs Union of India) it has been held vide DoP&T OM No, No.110/9/2003- AVD-I – 1 dated 13 April 2009 that minor penalty cannot have any effect on Pension. Accordingly, all the disciplinary authorities are required to complete the proceedings for minor penalty before the retirement of the delinquent.

20. Are any specific forms prescribed for the proceedings under Rule 9 of the Pension Rules?

Yes, forms prescribed for the purpose are annexed in the Forms Option.

Rule-9 of CCS (Pension) Rules, 1972 has been replaced by Rule-8 of CCS (Pension) Rules, 2021.

Where two or more Government servants are concerned in any case, the President or any other authority competent to impose the penalty of dismissal from service on all the accused Government servants may make an order directing that disciplinary action against all of them be taken in a common proceeding. If the authorities competent to impose the penalty of dismissal from service on such Government servants are different, an order for common proceedings may be made by the highest of such authorities with the consent of the others. Such an order should specify: -

a) the authority which may function as the Disciplinary Authority for the purpose of such common proceedings;

b) the penalties which such Disciplinary Authority will be competent to impose;

c) whether the proceedings shall be initiated as for a major penalty or for a minor penalty. (Rule 18 of CCS (CCA) Rules, 1965)

If the alleged misconduct has been committed jointly by person who has retired from Government service and a person who is still in service, common proceedings against them cannot be started. Proceedings against the retired person will be held under Rule 9 of the CCS (Pension) Rules, 19/2 and against the persons in service under Rule 14 of the CCS (CCA) Rules, 1965. The oral inquiry against both of them could, however, be entrusted to the same Inquiring Authority.

A joint proceeding against the accused and accuser is an irregularity which should be avoided. It may also happen that two or more Government servants governed by different disciplinary rules may be concerned in a case. In such cases, proceedings will have to be instituted separately in accordance with the rules applicable to each of the Government servant concerned.

1. What is common proceedings?

Common proceedings is the process through which disciplinary action is conducted simultaneously against two or more Government servants in respect of the misconduct committed by them in a single transaction. This is provided under Rule 18 of CCA Rules.

For example, if there were a group of employees who were preferring bogus bills towards monthly conveyance allowances in respect of persons who were either not claiming it or were not entitled for it and the same was being passed with the connivance of the staff and officers of the Accounts branch, it would be desirable to initiate a common proceeding rather than initiating a number of proceedings.

2. What are the circumstances under which Common proceedings are conducted?

For conduct of common proceedings, all the employees concerned must be amenable to CCA Rules. The proceedings must be based on a single transaction in which all the delinquent employees must have contributed/participated. It would be advantageous if all the delinquent employees are under the disciplinary powers of the same authority.

3. Who can conduct common proceedings?

As per Rule 18, common proceedings may be initiated either by President or the authority that can impose the penalty of dismissal from service on all the delinquent employees.

4. What can be done, if there is no authority that can impose dismissal on all the delinquent employees?

Note under Rule 18(1) provides that “If the authorities competent to impose the penalty of dismissal on such Government servants are different, an order for taking disciplinary action in a common proceeding may be made by the highest of such authorities with the consent of the others.”

5. What is the procedure for conducting common proceedings?

First step in the conduct of common proceedings is identification of the disciplinary authority for the purpose.

Second step is obtaining consent of other authorities who can impose the penalty of dismissal on other employees.

Thereafter, orders are to be issued nominating the identified disciplinary authority. Subject to the provisions of sub-rule (4) of Rule 12, the above order should also provide for the following:

a) the penalties specified in Rule 11 which such disciplinary authority shall be competent to impose;

b) whether the procedure laid down in Rule 14 and 15 or Rule 16 shall be followed in the proceeding.

c) Once the disciplinary authority is nominated, the procedure is the same as in any other case of disciplinary proceedings.

6. What are advantages of conducting Common Proceedings?

Following are some of the advantages of common proceedings:

a) Common proceedings facilitate speedy inquiry. For example, witness is to depose only once. (Although cross examination may be done as many times as there are delinquents, total time consumed in cross examination will also be less than the sum total of all the cross examination if they were to be done independently)

b) Common Proceedings help to avoid contradictory findings by different Inquiring Authorities

c) Further, it enables the disciplinary authority and Inquiring Authority to have an overview of the entire transaction and correct perspective of the case

d) Most importantly, penalties can be imposed equitably.

7. What are the precautions to be observed while resorting to Common Proceedings?

As the number of delinquent employees is large, there is a possibility of one or the other seeking adjournment or absenting. Naturally the Inquiring Authority shall not resort to ex-parte inquiry immediately when a delinquent is absent. Thus, the scope for delay is inbuilt in common proceedings.

8. What is the limitation of common proceedings i.e. when it should not be resorted to?

Based on the procedure adopted in criminal cases, MHA has directed vide its letter No. 6/98/63-AVD dated 13th June 1963, when two employees complain against each other, common proceedings should be avoided.

It is however desirable that both the inquiries should proceed almost simultaneously to avoid dissimilar appreciation of same evidence and conflicting findings.

1. What are the powers of an authority to deal with the misconduct committed by an employee who has been borrowed from another organization?

Borrowing authority shall have powers of Appointing Authority for the purpose of placing the delinquent employee under suspension. The details of the case shall be intimated to the lending authority.

2. Can the borrowing authority initiate disciplinary proceedings?

Borrowing authority can initiate disciplinary proceedings. But the powers for imposition of penalty depend upon the circumstances of the case.

3. What are the provisions regarding imposition of penalty in respect of a Government servant lent by one department to another?

As stated above, the borrowing authority can initiate disciplinary proceedings against the borrowed official.

If at the end of the proceedings, it is felt appropriate to impose a minor penalty, the borrowing authority may do so after consulting lending department. In case there is difference of opinion between the two departments, the employee shall be reverted back to the parent department.

If on conclusion of the proceedings, the borrowing authority is of the opinion that a major penalty needs to be imposed, the employee concerned will be repatriated to the parent department and the records of the case will be transmitted to the parent department.

4. Is the disciplinary authority in the parent department bound by the findings in the disciplinary proceedings conducted in the borrowing department?

No. Explanation under Rule 20 of the CCA Rules clarifies that the disciplinary authority is empowered to hold further inquiry as it may deem necessary.

5. Briefly, what are the powers of the borrowing and lending authorities?

Powers of the borrowing authority may be summed up as under:

a) It can suspend – but should report the matter to parent department

b) It can initiate disciplinary proceedings

c) It can impose minor penalty subject to consent given by parent department

d) It will have to repatriate the employee if it is of opinion that major penalty is required to be imposed.

e) Findings of the enquiry conducted by borrowing department are not binding on lending department.

f) Lending authority is at liberty to conduct further inquiry as deemed necessary.

1. What is the purpose of the Inquiry Report?

Purpose of the Inquiry Report is to analyse the evidence received in the course of the inquiry and the submissions made by the PO and the CO through their respective briefs and give a finding as to whether the charges are proved.

2. What are the materials based on which the Inquiry Report is made?

Input for the Inquiry Report is obtained from the following:

a) Charge sheet

b) Documents submitted in the course of the inquiry (Listed documents as well as additional documents demanded by the Charged Officer)

c) Statements of the witnesses during Examination in Chief, Cross Examination and Re-examination

d) Statement of defence given by the Charged Officer under Rule 14(4) of the CCA Rules or corresponding rule under which the inquiry is being held

e) Statement of defence given by the Charged Officer in response to the question under Rule 14(18) of the CCA Rules or corresponding rule under which the inquiry is being held

f) Submissions by the Presenting Officer and the Charged Officer including written brief, if any, under Rule 14(19) of the CCA Rules or corresponding rule under which the inquiry is being held

g) While the core material for the Inquiry Report would be available in the above documents, Daily Order Sheets and the orders passed during the inquiry may also supply useful material in answering allegations of inadequate opportunity if any raised by the Charged Officer.

3. What are the precautions to be observed by the IO in preparing the report?

Inquiring Authority should take care of the following while preparing the report:

a) The authority should confine to stating as to whether the charges have been proved or otherwise. Any mention by the Inquiring Authority regarding the quantum of penalty may raise serious doubts about its neutrality. The following observation by the Hon’ble Supreme Court in the case of State of Uttaranchal and Ors. Vs. Kharak Singh [JT2008(9)SC205, (2008)8SCC236, 2009(1)SLJ375(SC)] is relevant in this connection:

Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:

During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect.

Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing /disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court.

b) It must be ensured that all the findings and conclusions in the report are based on evidence produced during the inquiry

c) Only on the material made available to the Charged Officer and in respect of which opportunity was provided for controverting the same can be relied upon for drawing conclusions

d) Inquiring Authority should ensure not to import its personal knowledge in preparing the report

4. What is meant by “the charge is partially proved”?

A charge is supposed to contain a single omission or commission on the part of the Charged Officer such as the following:

a) The charged officer had filed a false claim

b) The charged officer had abused his official position by showing a favour to a relative

c) The charged officer had violated a specific rule in the purchase code.

In the above kind of single dimensional charge, the findings should be either that the charge was proved or not proved. Although the charge at (b) above, has two parts viz. abusing the position and showing a favour to relative, the two are inextricably linked that the proof of one amount to proof of another. On the contrary, at times, a charge may contain more than one element such as the following:

a) The charged officer had failed to comply with the provisions of the purchase code and thereby caused loss to the state.

b) The charged officer had submitted a misleading information and thereby shown favour to a particular supplier.

c) The charged officer had manipulated the marks obtained by seven ineligible candidates and passed them in the departmental examination

In these types of charges, a part of the charge may be proved. For example, violation of the provisions of the purchase code may be proved and the loss to the state may not be proved. Alternatively, no evidence might have been led about the marks obtained by two of the seven candidates. Under such circumstances the Inquiry Authority may have to state that the charge is partially proved.

Under such a contingency, the Inquiry Authority should mention explicitly as to which part of the charge is proved and which part is not proved.

5. What should the Inquiry Authority do if the inquiry establishes a charge other than the one mentioned in the Charge Sheet?

It is the statutory responsibility of the Inquiring Authority to give its finding on any article of charge different from the original article of charge if the same is established in the course of the inquiry. This is subject to the condition that the Charged Officer had an opportunity of defending himself/herself against such a charge. In this connection Explanation under Rule 14(23) of the CCA Rules provides as under:

“EXPLANATION- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.”

6. What should be the format of the Report?

Rule 14(23) of the CCS (CCA) Rules broadly indicates the content of the Inquiry Report as under:

After the conclusion of the inquiry, a report shall be prepared and it shall contain-

a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;

b) the defence of the Government servant in respect of each article of charge;

c) an assessment of the evidence in respect of each article of charge;

d) the findings on each article of charge and the reasons therefor.

Apart from the above, there is no statutory format for the Inquiry Report. However, the following format may be suggested based on para 26.4 (wrongly mentioned as 26) of Chapter XI of the Vigilance Manual Volume I (Fifth Edition 1991):

a) an introductory paragraph in which reference will be made to the appointment of the Inquiring Authority and the dates on which and the places where the hearings were held;

b) charges that were framed;

c) charges which were admitted or dropped or not pressed, if any;

d) charges that were actually enquired into;

e) brief statement of facts and documents which have been admitted;

f) brief statement of the case of the disciplinary authority in respect of the charges enquired into;

g) brief statement of the defence;

h) points for determination;

i) assessment of the evidence in respect of each point set out for determination and finding thereon;

j) finding on each article of charge;

7. What other documents are to be sent along with the report?

Rule 14(23) (ii) of the CCS (CCA) Rules provides for submission of the following by the Inquiring Authority:

The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include: -

a) the report prepared by it under clause (i).

b) the written statement of defence, if any, submitted by the Government servant;

c) the oral and documentary evidence produced in the course of the inquiry;

d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and

e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

The above mandatory requirement may be elaborated as under.

Separate folders containing each of the following are required to be sent along with the Inquiry Report: -

a) Documents produced in the course of inquiry

i) Documents produced on behalf of the Disciplinary Authority

ii) Documents produced on behalf of the Charged Officer

b) Statements of witnesses by way Examination in Chief, Cross Examination and Re-examination in the order in which the witnesses were examined

c) Daily Order Sheets relating to the Inquiry

d) Written Statements of defence made under Rule 14(4) and 14(16) of the CCA Rules or corresponding rule under which the inquiry was held

e) Submissions by the Presenting Officer and the Charged Officer including written brief, if any, under Rule 14(19) of the CCA Rules or corresponding rule under which the inquiry was held

f) Orders passed by the inquiry Authority and the Disciplinary Authority in the course of inquiry; the following, for example:

i) order relating to allowing or rejecting the request by charged officer seeking additional documents for defence

ii) order relating to request for appointment of a Legal Practioner as defence Assistant

iii) order on the request of the Charged Officer for change of Inquiring Authority etc.

g) Correspondence entered into during the inquiry

8. How does the Inquiring Authority assess evidence and draw conclusions?

This is covered under the separate chapter “Evaluation of Evidence”. Kindly go to “Evaluation of Evidence” option.

9. To whom is the Inquiry Report sent?

Inquiry Report is sent to the Disciplinary Authority. It must be clearly noted that the Inquiring Authority should not send copy of the report to the Charged Officer.

However, in respect of the inquires conducted by the Commissioners of Departmental Inquiry nominated by the Central Vigilance Commission, the report, together with the record of the inquiry including the exhibits, will be forwarded by the Commissioner for Departmental Inquiries to the Central Vigilance Commission with spare copies of the report for the above as provided under para 26.8 of Chapter XI of the Vigilance Manual Volume I (Fifth Edition 1991).

10. What are the powers of the Inquiring Authority regarding recalling and modifying the Inquiry Report?

As per para 26.7 of the Chapter XI of the Vigilance Manual Volume I (Fifth Edition 1991), extracted hereunder, the inquiring Authority becomes a functus officio after signing the report.

26.7 The Inquiry Officer after signing the report becomes functus officio and cannot thereafter make any modification in the report.

Needless to add that the Disciplinary Authority, on examination of the Inquiry Report is empowered to remit the case back to the Inquiring Authority for further Inquiry. In such an eventuality, the Inquiring Authority is duty bound to comply with the instructions of the Disciplinary Authority. This aspect is discussed in a subsequent chapter

11. How many copies of the Inquiry Report are to be sent?

Although the CCA Rules are silent on this aspect, Para 26.6 of the Chapter XI of the Vigilance Manual Volume I (Fifth Edition 1991) provide as under:

26.6 The Inquiry Officer will forward to the disciplinary authority his report together with the record of the enquiry including the exhibits and spare copies of the report as follows: -

a) as many copies as the number of delinquents;

b) one copy for the Special Police Establishment in cases investigated by them.

Further, para 26.8 of Chapter XI of the Vigilance Manual Volume I (Fifth Edition 1991) provides that in all cases in which the inquiry has been held by a Commissioner for Departmental Inquiries, the report, together with the record of the inquiry including the exhibits, will be forwarded by the Commissioner for Departmental Inquiries to the Central Vigilance Commission with spare copies of the report for the above.

1. What are the basic questions to be considered by the Disciplinary Authority on the Inquiry Report?

The Disciplinary Authority, on receipt of the Inquiry Report is to examine the report in the following directions:

a) Whether the inquiry has been conducted in accordance with the statutory provisions as well as the Principles of Natural Justice by providing reasonable opportunity to the delinquent?

b) Whether the findings in the Inquiry Report are acceptable?

It may be seen from the above that the first issue for consideration is regarding the procedural propriety of the inquiry conducted by the Inquiring Authority and the second question is about the correctness of the conclusions of the above Authority.

2. How far the findings of the Inquiring Authority are binding on the Disciplinary Authority?

Findings of the Inquiring Authority are not binding on the Disciplinary Authority, who is at liberty to disagree with the same by recording reasons.

3. Can the Disciplinary Authority order for a fresh Inquiry if it is not satisfied with the Inquiry Report received by it?

Under Rule 15(1) of the CCA Rules, Disciplinary Authority is empowered to remit the case to the Inquiring Authority for further inquiry. Use of the word ‘further” implies that the earlier inquiry cannot be dumped for good and a fresh inquiry be conducted. Besides, the phrase used is “the Inquiring Authority” and not “an Inquiring Authority’. This implies that the further inquiry is to be held by the same Inquiring Authority who held the earlier inquiry. Of course, this is without prejudice to the powers of the Disciplinary Authority to appoint or re-appoint Inquiring Authority.

4. Can the disciplinary Authority remit the case to a new Inquiring Authority if it is not satisfied with the manner in which the Inquiring Authority had conducted the inquiry in the first instance?

As mentioned above, the phrase used in Rule 15(1) is “the Inquiring Authority” and not “an Inquiring Authority’. This implies that the further inquiry is to be held by the same Inquiring Authority who held the earlier inquiry. Of course, this is without prejudice to the powers of the Disciplinary Authority to appoint Inquiring Authority which should include powers to replace it as well.

5. Can the Disciplinary Authority order for a fresh inquiry if it is not satisfied with the findings by the Inquiring Authority?

In the case of K R Deb Vs. Collector Of Central Excise [1971 AIR 1447, 1971 SCR 375] facts were as under:

The appellant was a sub-Inspector of Central Excise. A departmental inquiry was held against him in respect of a charge of misappropriation of Government money. The Inquiry Officer exonerated him. The Collector Central Excise, ordered another Inquiry Officer to make a report after taking further evidence. The second Inquiry Officer at first exonerated the appellant but later, after taking some more evidence as directed by the Collector, reported that although the charge against the appellant was not proved his conduct may not be above board. Dissatisfied with the report the Collector ordered a fresh inquiry to be held by a third officer. This time a verdict of guilty was given and the appellant was dismissed. The appellant's writ petition in the Court of the Judicial Commissioner Tripura having failed he appealed to the Supreme Court by special leave. The question for consideration was whether the multiple inquiries held against the appellant were in accordance with Rule 15 of the Classification and Control Rules. 1957,

Hon’ble Supreme Court set aside the proceedings and the penalty order of dismissal holding that Rule, 15 on the face of it really provides for one inquiry but it may be possible if in a particular case there has been no proper inquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in r. 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary Authority. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under r. 9. The rules do not contemplate an action such as taken by the Collector in appointing a third Inquiry Officer. It seems that the Collector instead of taking responsibility himself was determined to get some officer to report against the appellant. The procedure adopted was not only against the rules but also harassing to the appellant. In the result it must be held that no proper inquiry has been conducted in the case and, therefore, there has been a breach of Art. 311(2) of the Constitution. [380 E] Services (Classification, Control and Appeal) Rules, 1957. It was contended that rule 15 of the 'Classification and Control Rules did not contemplate successive inquiries, and at any rate, even if it contemplated, successive inquiries there was no provision for setting aside earlier inquiries without 'giving any reason whatsoever. It was further contended that the order dated February 13, 1962 was mala fide.

Rule 15(1) of the Classification and Control Rules reads as follows:

"(1) Without prejudice to the, provisions of; the Public Servants (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in clauses (iv) 'to (vii) of rule 13 shall be passed except after an inquiry, held, as far as may be,2 in. manner hereinafter provided."

Clause (2) of. rule 15 provides for framing of charges and communication in writing to the 'government servant of these charges with the statement of allegations on which they are based, and it also provides for a written statement of defence. Under cl. (3) the government servant is entitled to inspect and take extracts from such official records as he may specify, subject to certain exceptions. Under clause (4) on receipt of the written statement of defence the Disciplinary Authority may itself enquire into such. of the charges as are not admitted, or if it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Officer for the purpose. Clause (7) provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons therefore. If in the opinion of such authority the proceedings of the inquiry establish charges different from those originally framed it may record findings on such charges provided that findings on such charges shall not be recorded unless the Government servant has admitted the facts constituting them or has bad an opportunity of defending himself against them. Under cl. (9) "the Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge." Clause (10) provides for issue of show-cause notice. It seems to us that Rule 15, on the face of it, really provides for one inquiry but it may be possible if in a particular case there has been no proper enquiry because some serious defect has crept into the inquiry or some important witnesses were not available at the time of the inquiry or were not examined for some other reason, the Disciplinary Authority may ask the Inquiry Officer to record further evidence. But there is no provision in rule 15 for completely setting aside previous inquiries on the ground that the report- of, the Inquiring Officer or Officers does not appeal to the disciplinary, Authority-. The Disciplinary Authority has enough powers to reconsider the evidence itself and come to its own conclusion under rule 9. In our view the rules do not contemplate an action such as was taken by the Collector on February 13, 1962. It seems to us that the Collector, instead of taking responsibility himself, was determined to get" some officer to report against the appellant. The procedure adopted was not only not warranted by the rules but was harassing to the appellant Before the Judicial commissioner the point was put slightly differently and, it was urged that the proceedings showed that the Disciplinary Authority had made up its mind to dismiss the appellant. The Judicial Commissioner held that on the facts it could not be said that the Disciplinary Authority was prejudiced against the appellant. But it seems to us that on the material on record a suspicion does arise, that the Collector was determined to get some Inquiry Officer to report against the appellant. In the result we hold that no proper inquiry has been conducted in the case and, therefore, there has been a breach of art. 311(2) of the Constitution. The appeal is accordingly allowed and the order dated June 4, 1962 quashed. and it is declared that the appellant should be treated as still continuing in service. He should be paid his pay and allowances for the period he has been out of office.

6. What are the illustrative circumstances when the cases may be remitted to the Inquiring Authority for Further inquiry?

Illustrative circumstances where the Disciplinary Authority may remit the case to the Inquiring Authority for further Inquiry are as under:

a) Where the Inquiring Authority has failed to ask the mandatory question under Rule 14(18) of the CCA Rules or any other corresponding rule under which the inquiry was held

b) Where the Inquiring Authority has disallowed the additional document or witness demanded by the Charged Officer and in the opinion of the Disciplinary Authority the disallowed document or witness is relevant for the purpose of defence

c) Where the inquiry Authority has rejected the request for engaging a defence assistant from outstation and in the opinion of the Disciplinary Authority the request of the Charged Officer is justified

d) Where the ex-parte proceedings were initiated due to absence of Charged Officer and later on when the Charged Officer was prevented from participating in further proceedings on the plea that ex-parte inquiry had commenced.

7. What is the procedure for making reference to the Union Public Service Commission?

Kindly see "Consultation with UPSC" option.

8. What is the Procedure for consultation with the Central Vigilance Commission before deciding upon the quantum of penalty?

Based on the recommendations of the Group of Ministers which considered the report of the Hota Committee, it has been decided to dispense with the second stage advice of CVC in respect of cases wherein consultation with UPSC is required. DoP&T OM No. No.372/19/2011-AVD-Ill(Pt.1) dated 26 Sep 2011 refers. Presently second stage consultation with CVC is being done only in respect of cases where consultation with UPSC is not required as per extant rules/instructions.

9. What will happen in cases of incompatibility of the level of the Disciplinary Authority who had issued charge sheet and the kind of penalty proposed to be imposed?

Kindly see the attached .pdf file.

10. If the Disciplinary Authority is of the opinion that no penalty is to be imposed on the Charged Officer, is it still required to pass an order to the effect?

Although Rule 15 of the CCA Rules mentions the passing of only the orders imposing penalty, it is desirable that the statutory proceedings are brought to a conclusion through a formal order. This will go a long way in relieving the Charged Officer of the agony and trauma suffered since the issue of Charge Sheet. It is significant to note that P&T Manual has a specific provision to the above effect

11. What is the procedure for forwarding copy of the Inquiry Report and other documents to the Charged Officer?

The following documents are to be made available to the Charged officer who may also be provided with an opportunity to make representation against the contents:

a) Copy of the Inquiry Report

b) Copy of note of disagreement, if any, of the Disciplinary Authority with the conclusions of the Inquiring Authority

c) Advice of the CVC where applicable

12. What precaution is necessary while forwarding the Inquiry Report to the Charged Officer?

Rule 15(2) of the CCA Rules which provides for forwarding the copy of the Inquiry Report to the Charged Officer prescribes that the Disciplinary Authority should forward its own tentative reasons for disagreement if any. The use of the word tentative makes it clear that the Disciplinary Authority should keep an open mind. This attitude of the disciplinary authority should manifest in its communication as well. This aspect has been explicitly highlighted in the DoPT OM No. F.N0.11012/12/2010-Estt. (A) dated 12 November 2010 in the following words:

“All Ministries/Departments are therefore, requested to ensure that the communication forwarding 'the IO's report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated' which could be construed to mean that the disciplinary authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.”

13. What is the time limit for passing of final order?

In this connection, Deptt. Of Personnel & Training OM No. 11012/21/98-Estt.(A) dated 11th November, 1998 OM Provides as under:

“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".

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.

14. How to decide the quantum of penalty?

Kindly see "Quantum of Penalty" option.

1. What is the provision under which consultation with the UPSC is mandated?

Article 320(3) (c) of the Constitution of India provides as under:

320. Functions of the Public Service Commissions

(3) the Union Public Service Commission or the State Public Service Commission, as the case may be, shall be consulted –

(c) on all disciplinary matters affecting a person serving under the Government of India or the Government of a State in the Civil capacity, including memorials or petitions relating to such matters and it shall be the duty of the Public Service Commission to advice on any matter so referred to them which the President, or, as the case may be the Governor of the State, may refer to them.

Further, the first proviso there under empowers the President to make regulations to specify the matters in which it shall not be necessary to consult the Commission.

In exercise of the powers conferred by the proviso to clause (3) of Article 320 of the Constitution the President has notified the regulations known as Union Public Service Commission (Exemption from Consultation) regulations, 1958.

A copy of the above regulations is annexed at the end of this chapter for ease of reference. Regulation 5 of the above regulations relates to disciplinary cases.

It has been clarified in the CCA Rules that the above stated consultation applies to passing of orders in Appeal, Revision and Review as well. Proviso (i) to Rule 27 (2) 29(1) and proviso to Rule 29-A refer.

In addition to the above, first proviso to Rule 9(1) of the CCS (Pension) Rules 1972 provides that consultation with UPSC is mandatory in all cases of withholding or withdrawing of pension.

2. Based on the cumulative effect of the above stated provisions, what are the matters in which the UPSC is required to be consulted?

Firstly, it must be noted that the constitutional provision applies only to the persons serving the Government in the Civil capacity. Thus, disciplinary cases of the persons paid from the Defence Service Estimates, including defence civilians, are outside the purview of the consultation with the UPSC. This applies to the post-retirement proceedings as well because the consultation in such proceedings is also based on the provisions of Article 320(3) (c) of the Constitution of India.

Among the persons serving the Government in the civil capacity, consultation with UPSC is necessary in respect of any order made by the President – orders imposing penalty, orders disposing off appeal, revision or review.

Needless to add the UPSC is to be consulted in post-retirement proceedings as well.

3. What is the procedure for forwarding the cases to UPSC?

The cases are to be forwarded as per the proforma prescribed for the purpose – a copy of the proforma is attached at the section “Standard Forms”.

The records as per the proforma are to be sent under the certificate by the Joint Secretary/Director/Deputy Secretary in charge of the subject in the Ministry/Department to the effect that the case is complete in all respect.

4. What is the level of the correspondence relating to consultation with UPSC?

As per DoPT OM No. 39011/12/2010-Estt.(b) dated 14th September 2010, in case the UPSC is required to return the case due to any deficiency, UPSC may address a letter to the Secretary of the Department/Ministry. If it is found that the case has been forwarded in a casual manner, Secretary of the Department/Ministry may issue a written warning to the Joint Secretary/Director/Deputy Secretary concerned to be more careful in future. A second time default by the same officers shall invite minor penalty proceedings against them.

5. What is the time limit for forwarding the cases to UPSC?.

As per DoPT OM No. 39011/12/2009-Estt.(b) dated 10th May 2010, complete reference should reach UPSC at least six months before the retirement of the charged officer.

6. What are the precautions to be observed in the matter of consultation with the UPSC?

a) DO’s and DONT’s as available in the UPSC website are reproduced for ease of reference:

b) DO’s and DONT’s for the disciplinary cases being referred to the Commission

1. The Ministries/Departments should forward the disciplinary case to the Commission in terms of DoP&T OM No.39011/12/2009-Estt.Bc dt.10.5.2010

2. The pro forma/check list must be signed by CVO/Joint Secretary to Govt of India.

3. The documents indicated in proforma/Checklist should be duly referenced with page number, folder name etc.

4. Any column of the proforma should not remain unfilled. Avoid use ‘ ’ or ‘do’ in the proforma, instead the column should be filled using the terms ‘Not Applicable’ or ‘nil’.

5. The Ministry should forward the documents either in original or duly authenticated copy thereof. Photocopied documents should preferably be signed in blue ink to enable cross-checking of authentication.

6. The exhibits and all other documents should be legible.

7. If any document is in regional language, its authenticated translation in English should be available.

8. The full form of abbreviations if any, should be mentioned. The abbreviated terms for designation of C.O and for technical terms should be avoided.

9. In case of retired C.O., the information like last pay drawn, monthly pension and gratuity must be mentioned. In case pension and/or gratuity is withheld, the same should be indicated.

10. If any clarifications on the issues/points are sought by the Commission, the DA should make point-wise clarification.

11. The group of posts (viz. A, B, C, D) of the C.O. should preferably be indicated in the first column of the proforma/checklist.

12. The statement of defence and reply to the charge sheet should not be inferred as the same document.

13. Final para-wise comments of the D.A. on the representation of the C.O. on I.O report should be indexed at one place.

14. The feeder grade and its scale of pay in respect of C.O. should be indicated.

15. Daily order sheets should be available for all dates of hearing.

16. The position of co-accused, if any, may be indicated in the letter or proforma/checklist.

17. In minor penalty cases, the relied upon documents referred in the statement of imputation should be available and properly referenced.

18. The Charge Sheet issued must contain all its part/annexures.

19. The records regarding proof of the delivery of the Charge Sheet to the C.O. must be available.

20. The column relating to general examination of the C.O. should clearly indicate the reference of related papers. In case, general examination is not done, it should specifically be mentioned.

21. In case of disagreement of DA with IO report, a note of disagreement has to be prepared by the DA and it should be forwarded to the CO. Only forwarding the advice of CVC along with IO report will not suffice.

22. The para-wise comments of the DA should address the points raised by the CO in his reply. The comments should not be in brief or general in nature.

23. In case of pension cut proposals, the approval of the President is necessary.

24. If a disciplinary case instituted under major penalty and deemed to have been continued once C.O. retires, the approval of President is required under relevant Pension Rules afresh.

25. The records of the case referred originally be sent to the Commission in Appeal/review/revision cases.

1. Once misconduct has been established, what is the mechanism for deciding the quantum of penalty?

There are several statutory provisions and administrative instructions which lay down as to what constitutes a misconduct. For example, the provisions of the Conduct Rules lay omissions and commissions which constitute misconduct. Various DoPT OMs lay down several actions such as neglect of family, failure to vacate Government accommodation in time, etc. amount to misconduct.

One significant aspect of CCA Rules is that there is no statutory prescription of penalties vis-à-vis the misconduct. For example, the IPC provides the maximum penalty that may be levied against each crime. Prevention of Corruption Act prescribes the minimum and maximum penalty against each crime dealt with therein. Against this background, the CCA Rules are conspicuously silent about the quantum of penalty that may be imposed for any misconduct. Rule 11 of the CCA Rules provides as under:

2. Are the CCA Rules and the instructions issued there under completely silent about the quantum of penalty?

Only indication about the quantum of penalty is available in the two provisos to Rule 11 in the following manner:

Provided that, in every case in which the charge of possession of assets disproportionate to known-source of income or the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in clause (viii) or clause (ix) shall be imposed:

Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.

Another exception where quantum of penalty has been suggested by the GoI instructions is Deptt. Of Personnel & Training OM No. 11012/7/91-Estt. (A) dated 19.05.1993 which provides inter-alia:

“The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc, for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service. If he is a probationer or a temporary Government servant, he should be discharged or his services should be terminated. If he has become a permanent Government servant, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service. In no circumstances should any other penalty be imposed.

Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to prosecute such Government servants.”

[Although the above OM has not been modified, its contents need to be understood in the light of the Judgment of the Hon’ble Supreme Court in the case of R. Vishwanatha Pillai Vs. State of Kerala & Ors. DATE OF JUDGMENT: 07/01/2004 [2004 AIR 1469, 2004(1) SCR360, 2004(2) SCC105, 2004(1) SCALE285, 2004(1) JT88] wherein dismissal of an IPS officer with 27 years of service without inquiry was upheld as the officer was guilty of producing a false caste certificate at the time of recruitment. It must also be noted that in the above case, the officer was provided an opportunity of countering the allegation during the inquiry regarding the veracity of the certificate produced by him]

Another area relating to quantum of penalty is as under:

By necessary implication, penalty of Recovery from pay mentioned in Rule 11(iii) can be imposed only in such cases where the pecuniary loss has been caused and the same is attributable to the charged officer.

3. What guidelines are available to the Disciplinary Authority in deciding the quantum of penalty?

The following guidelines provided by the Hon’ble Supreme Court penalty in the case of Regional Manager, U.P.S.R.T.C., Etawah and Ors. Vs. Hoti Lal and Anr. [AIR 2003 SC 1462, JT 2003 (2) SC 27, (2003) 3 SCC 605, [2003] 1 SCR 1019,] for the Tribunals and the High Court is relevant for the Disciplinary Authorities in deciding the quantum of

“11. It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment as considered disproportionate. Reasons are live links between the mind of the decision taken to the controversy of question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander Machinery Dudley Ltd. v. Crabtree 1974 LCR 120. A mere statement that it is disproportionate would not suffice……….. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transaction or acts in a fiduciary capacity, highest degree of integrity and trust-worthiness is must and unexceptionable. Judged in that background, conclusions of the Division Bench of the High Court do not appear to be proper. We set aside the same and restore order of learned Single Judge upholding order of dismissal.

12. The appeal is allowed.”

4. Is it mandatory to award identical punishment for similar misconduct?

Every employee has a right against discrimination and arbitrariness. However, this cannot be construed to mean that the same penalty must be awarded for similar misconduct. Although the quantum of penalty is within the domain of the discretion of the Disciplinary Authority, selective treatment of employees has been frowned upon by the courts. In this regard, the following extract from the judgment of the Hon’ble Supreme Court in the case of Man Singh Vs State Of Haryana & Ors decided on 1 May, 2008

18. In view of the factual backdrop and the above-stated statement of HC Vijay Pal, we are of the opinion that the respondents cannot be permitted to resort to selective treatment to the appellant and HC Vijay Pal, who was involved in criminal case besides departmental proceedings. HC Vijay Pal has been exonerated by the appellate authority mainly on the ground of his acquittal in the criminal case, whereas in departmental proceedings he has been found guilty by the disciplinary authority and was awarded punishment for serious misconduct committed by him as police personnel.

19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair-minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings. The appellant and HC Vijay Pal were both similarly situated, in fact, HC Vijay Pal was the real culprit who, besides departmental proceedings, was an accused in the excise case filed against him by the Excise Staff of Andhra Pradesh for violating the Excise Prohibition Orders operating in the State. The appellate authority exonerated HC Vijay Pal mainly on the ground of his acquittal by the criminal court in the Excise case and after exoneration, he has been promoted to the higher post, whereas the appeal and the revision filed by the appellant against the order of punishment have been rejected on technical ground that he has not exercised proper and effective control over HC Vijay Pal at the time of commission of the Excise offence by him in the State of Andhra Pradesh. The order of the disciplinary authority would reveal that for the last about three decades the appellant has served the Police Department of Haryana in different capacity with unblemished record of service.

However, the above should not be construed to mean that there must be uniformity in the quantum of penalty. This may be evident from the following extract of the Hon’ble Supreme Court in Union territory of Dadra & Nagar Haveli Vs. Gulabhia M Lad decided on 28.4.2010:

“In a matter of imposition of punishment where joint disciplinary enquiry is held against more than one delinquent, the same or similarity of charges is not decisive but many factors as noticed above may be vital in decision making. A single distinguishing feature in the nature of duties or degree of responsibility may make difference insofar as award of punishment is concerned. To avoid multiplicity of proceedings and overlapping adducing of evidence, a joint enquiry may be conducted against all the delinquent officers but imposition of different punishment on proved charges may not be impermissible if the responsibilities and duties of the co-delinquents differ or where distinguishing features exist. In such a case, there would not be any question of selective or invidious discrimination.”

5. Is it appropriate to take into consideration the past profile of the charged officer while deciding the quantum of penalty?

It has been clarified by the Government that it is 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. Copy of G.I.M.H.A., OM No. 134/20/68-AVD, dated the 28th August, 1968 is extracted hereunder”

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.

Needless to add, there can be no bar to taking into account the past good conduct of the charged officer and reducing the penalty.

6. Under what circumstances the quantum of penalty may be perceived as excessive and disproportionate?

Answer to this question depends upon the facts and circumstances of the case. However, the following observation of the Hon’ble Supreme Court in the case of Chairman cum Managing Director, Coal India Limited and Anr. Vs. Mukul Kumar Choudhuri and Ors. [AIR2010SC75, JT2009(11) SC472, (2009)15SCC620] will help in taking a view on the quantum of penalty:

The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be: would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if the Respondent No. 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorized absence for six months.

Similarly in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Ors. [AIR2004SC2131, JT2004(3) SC384, (2004)4SCC560, [2004]3SCR1, 2004(2) SLJ460(SC)] the Hon’ble Supreme Court substituted the penalty of dismissal for the misconduct of absence of 2 Months and 8 days stating

Thus, the present one is a case wherein we are satisfied that the punishment of removal from service imposed on the appellant is not only highly excessive and disproportionate but is also one which was not permissible to be imposed as per the Service Rules. Ordinarily we would have set aside the punishment and sent the matter back to the disciplinary authority for passing the order of punishment afresh in accordance with law and consistently with the principles laid down in the judgment. However, that would further lengthen the life of litigation. In view of the time already lost, we deem it proper to set aside the punishment of removal from service and instead direct the appellant to be reinstated in service subject to the condition that the period during which the appellant remained absent from duty and the period calculated upto the date on which the appellant reports back to duty pursuant to this judgment shall not be counted as a period spend on duty. The appellant shall not be entitled to any service benefits for this period. Looking at the nature of partial relief allowed hereby to the appellant, it is now not necessary to pass any order of punishment in the departmental proceedings in lieu of the punishment of removal from service which has been set aside. The appellant must report on duty within a period of six weeks from today to take benefit of this judgment.

7. What factors the Disciplinary may consider while deciding the quantum of penalty?

The following extract from the Judgment of the Hon’ble Supreme Court in the case of Union territory of Dadra & Nagar Haveli Vs. Gulabhia M Lad decided on 28.4.2010 indicates some of the factors relevant in this context:

The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. While it is again reiterated that the quantum of penalty is within the domain of the discretionary power of the disciplinary authority who is under no obligation to take cognizance of any suggestions, experts on the subject consider the following factors to be relevant while considering the quantum of penalty:

a) What is the impact of the misconduct on the values cherished by the organization? Does it amount to the negation of the basic values such as trust, faith, honesty and integrity?

b) What is the impact of the misconduct on the image of the organization among the stakeholders? Is it likely to affect the credibility of the organization? Whether the stakeholders are likely to lose faith on the organisation? Will the punishment restore the confidence of the stakeholders?

c) What will be impact of the penalty on the individual concerned? – does it amount to punishing or finishing? Will the employee be a better person by imposing a moderate punishment? As the old saying goes - Every saint has a past and every sinner has a future. Viewed in this context, whether it is appropriate to give an opportunity to the erring official to mend rather than putting an end?

d) What message the punishment will send to other members and stakeholders of the organization? Is it likely to embolden the employees to act in defiance of prescribed rules; alternatively, will it scare the employees so that they will adopt safety first policy and avoid taking risk which is one of the important qualities required of a manager?

e) Is it an isolated misconduct in what is otherwise an unblemished career?

f) How similar instances of misconduct were dealt with in the past?

g) How such instances are dealt with in sister organizations? – as may be ascertained from CVC Reports, Vigilance magazines, etc.

h) Whether there is any evidence of remorse or repentance on the part of the employee? For example, whether the charged officer had admitted the charges at the earliest opportunity or kept on doggedly defending the misconduct?

i) Whether the proposed penalty will serve public interest?

8. When would it be appropriate to impose the extreme penalty of dismissal or removal from service?

As pointed out by the Hota Committee, as per the Notification dated 11 October 2000 of the Department of Personnel and Training, Government of India the penalty of dismissal or removal from service is mandatory in Disciplinary Inquiry involving lack of integrity or corrupt practice.

9. What should be the guiding principles in determining the quantum of penalty?

The following extract from the concluding portion of the Hota Committee Report may be taken as a guiding principle in deciding the quantum of penalty:

We may like to go on record that one of the purposes of any punitive action against a Government Servant is to vindicate the public policy that misconduct would be penalized and, in case of grave misconduct involving lack of integrity, the appropriate penalty will be removal or dismissal from service. Whereas we are aware of the need for different penalties in the Rule Book classified as major and minor penalties, it will be difficult to recommend any precise penalty for any specific misconduct. This is because each case of Disciplinary Inquiry is based on its own facts. We, however, reiterate that the categories of the Government Servants we have dealt with in this Report constitute a major segment of the intelligentsia of the country. Authorities on Public Administration and eminent Civil Servants are of the view that such Government Servants cannot be expected to be fully committed to the task of nation?building if their self-esteem is corroded by stultifying rules, draconian procedures, demoralizing searches without meaningful seizure, undeserving sanction for prosecution or disproportionate punishments and deliberate humiliation. To put it briefly, for Government Servants to work with full sense of dedication, checks and balances must be built into the Government machinery and a just Political Executive, which is not only fair but is also perceived to be fair, is a vital requirement for a Republic where the Rule of Law is meant to be supreme.

141. In the ultimate analysis, by faith and fairness alone can the foundations of a fully?dedicated public service be built and such a service will help make India a major player in the world.

1. What are the main precautions to be observed while drafting penalty orders?

While drafting penalty orders it must be ensured that the final orders are speaking orders and are free from ambiguity or vagueness.

2. What is a speaking order?

Speaking order may be defined as an order which contains not only the conclusions and directions but also the reasons that have led to the conclusions.

It must not be confused with “oral orders” or “verbal directions”.

Normally, courts used to reserve judgments when the arguments are concluded. Judgments will be delivered after some time lag because the court has to evaluate the evidence received and the submissions made by the parties. Contrary to this, the court may dictate orders in the court immediately on hearing the parties. Such orders are known as “Oral orders”. Although these are called Oral Orders, they are also reduced to writing and the copies of these orders are also supplied to the parties in due course of time.

The term “Verbal instructions” refers to the instructions issued by superior officers to their subordinates under urgent circumstances. CCS Conduct Rules 1964 requires that such instructions should be confirmed through written instructions as soon as possible.

3. What are the advantages of speaking orders?

a) Disclosure guarantees consideration

b) Introduces clarity