Hota committee Report Pages 1 to 49

REPORT OF THE COMMITTEE OF EXPERTS ON DISCIPLINARY & VIGILANCE INQUIRIES

JULY, 2010

DEPARTMENT OF PERSONNEL & TRAINING

GOVERNMENT OF INDIA

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REPORT OF THE COMMITTEE OF EXPERTS

On 12 May 2010, the Department of Personnel and Training, Ministry
of Personnel, Public Grievances and Pensions, Government of India issued a
notification appointing a Committee of Experts to review the procedure of
Disciplinary/Vigilance Inquiries and recommend measures for their
expeditious disposal.
2. The Committee was given a period of two months to make its
recommendations. A summary of the Report of the Committee is at Annexure.
3. The Committee comprised the following :
(i) P.C.Hota,
former Chairman of Union
Public Service Commission ‐ Chairman
(ii) Arvind Varma ‐ Member
Former Secretary,
Department of Personnel & Training,
Government of India
(iii) P.Shankar ‐ Member
Former Central Vigilance
Commissioner
Government of India
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4. As a Committee, we met at New Delhi only. In our deliberations, we
received substantial help and assistance from the following officers of the
Department of Personnel & Training:‐
(i) Shantanu Consul, Secretary
(ii) Dr. S.K.Sarkar, Additional Secretary
(iii) Alok Kumar, Joint Secretary(Vigilance)
(iv) C.B.Paliwal, Joint Secretary(Establishment)
(v) V.K.Velukutty, Deputy Secretary(Vigilance)
5. We called on the Minister of State in the Ministry of Personnel, Public
Grievances and Pensions and the Cabinet Secretary to Government of India
to discuss the issues for expeditious disposal of Disciplinary/Vigilance Inquiries.
We also met some officers of the Government of India and officers of a few
State Governments at New Delhi to get the benefit of their experience.
6. We have noted that right from the time of the Government of India Act
1919, there has been provision for Disciplinary Inquiry under the Civil
Service(Control, Classification and Appeal) Rules 1920. The Government of
India Act 1935, which replaced the Act of 1919, also provided for Disciplinary
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Inquiry against delinquent Government Servants. The Constitution of India has
also provided for Disciplinary Inquiries largely on the model of such Inquiries
under the Government of India Act, 1935.
7. We have noted that the provisions of Section 96(B) of the Government
of India Act 1919, Section 240 of the Government of India Act 1935, the
provisions in Articles 309, 310 and 311 of the Constitution and the relevant
Service Rules such as the Civil Services(Classification, Control and Appeal) Rules
1920, modified in 1930 and further modified in 1957, and the latest Central
Civil Services(Classification, Control and Appeal) Rules 1965 framed under
Article 309 of the Constitution, have been the subject of scrutiny of the higher
judiciary including the Privy Council, the Federal Court and the Supreme
Court.
8. After commencement of the Constitution on 26 January 1950, different
facets of Article 311 of the Constitution – particularly what constitutes
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“reasonable opportunity” for a delinquent Government Servant as contained
in Article 311(2) – have been the subject of scrutiny of the Supreme Court,
which has laid down principles and parameters in this regard.
9. From time to time, the Government of India has also issued executive
instructions to further streamline the procedure for Disciplinary Inquiries in
conformity with judgements of the Supreme Court. Nevertheless, there
continue to be instances of inordinate delay in the disposal of such
Disciplinary Inquiries.
10. A Survey by the Indian Institute of Public Administration, New Delhi
reported the following findings about the percentage of delay in disposal of
Disciplinary Inquiries at different levels:
(i) Administrative Departments ‐ 69%
(The reference is obviously to the time taken by the Administrative
Department/Ministry after misconduct of the delinquent Government Servant
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came to official notice and the Department/Ministry conducted a preliminary
inquiry and if such Inquiry indicated commission of any offence, sent the case
for investigation according to law. If after due investigation, the case was sent
back to the Department/Ministry for initiating a Disciplinary Inquiry inter alia,
because evidence during investigation was not sufficient for a charge sheet
under Section 173 of the Code of Criminal Procedure, 1973, the
Department/Ministry framed Articles of Charge for a major penalty Inquiry on
the basis of available evidence. If the delinquent Government Servant denied
the charges, the Disciplinary Authority appointed an Inquiry Officer to conduct
the Inquiry against the Delinquent Government servant.)
(ii) Inquiry Officers in Disciplinary Inquiries ‐ 17%
(This has obvious reference to the time taken by Inquiry Officers to record
evidence of witnesses of both the Presenting Officers on behalf of the
Disciplinary Authorities and the delinquent Government Servants on their own
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behalf. The time taken by Inquiry Officers also includes time taken by them to
submit their Reports of Inquiry to the Disciplinary Authorities.)
(iii) Central Vigilance Commission (CVC) ‐ 9%
(This obviously includes time taken by the CVC to give the first stage and the
second stage advice to the Departments/Ministries after due scrutiny of the
preliminary Inquiry Report for the first stage advice and the records of the
Disciplinary Inquiries for the second stage advice.)
(iv) Union Public Service Commission (UPSC) ‐ 5%
(This has obvious reference to cases of Disciplinary Inquiries referred to the
UPSC under Article 320(3)(c) of the Constitution, which stipulates that the
UPSC shall be consulted “on all disciplinary matters affecting a person serving
in a civil capacity including memorials and petitions in such matters.”)
(v) It is clarified that a State Government, in respect of Government
Servants appointed by the State, is required to consult the State Public Service
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Commission and only in cases where imposition of a minor penalty is proposed
on any officer of the All‐India Services working in connection with the affairs of
a State, the State Government is required to consult the UPSC before imposing
the minor penalty under the All‐India Services(Discipline and Appeal) Rules
1969.
11. Before we deal with what steps could be taken to eliminate the
inordinate delay by various Agencies in processing and conducting a
Disciplinary Inquiry, we would like to give a historical perspective of
Disciplinary Inquiries against delinquent government servants.
12. During the period of the East India Company, a person in employment
of the Company could be removed from service of the company by the Court
of Directors. Provision to this effect was contained in the Charter Act 1793 and
the Charter Act 1833.
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13. The Government of India Act 1858 vested the administration of British
India in the Crown which henceforth had the power of appointment and
dismissal of a Crown servant. The Act empowered the Secretary of State‐in‐
Council to frame Regulations for the Crown servants in India.
14. For the first time, the Government of India Act 1919 provided that,
subject to provisions of the Act and the Rules framed thereunder, every person
holding a civil post in British India holds it during the “pleasure of His Majesty”
and may not be dismissed from service by an Authority lower in rank than the
Authority which appointed him.
15. The Government of India Act 1919 also provided for establishment of a
Public Service Commission of India, which was set up on the 1st of October
1926.
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16. As mentioned earlier in this Report, a set of Rules was framed under the
Government of India Act 1919 called the Civil Services (Classification, Control
and Appeal) Rules 1920. For the first time, the 1920 Rules provided for
“a properly recorded Departmental Inquiry”
(ii) The 1920 Rules is a precursor to the Central Civil Services (Classification,
Control and Appeal) Rules 1965 framed under Article 309 of the Constitution.
The 1965 Rules govern Disciplinary Inquiries relating to persons holding civil
posts or in Civil Service of the Government of India.
17. For the All‐India Services i.e. the Indian Administrative Service, the
Indian Police Service and the Indian Forest Service, the All India Services
(Discipline and Appeal) Rules 1969, framed under the All‐India Services Act
1951, regulate Disciplinary Inquiries. All‐India Services officers, whether
serving in connection with the affairs of a State or on deputation to the Central
Government or other Agencies, are governed by the All‐India
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Services(Discipline & Appeal) Rules 1969. The Railway Servants who are
under the Central Government, are governed by the Railway Servants
(Discipline & Appeal) Rules, 1968.
18. The Civil Services(Classification, Control and Appeal) Rules 1920 were
replaced by a new set of Rules called the Civil Services(Classification, Control
and Appeal) Rules 1930. The 1930 Rules continued in force even after the
Government of India Act 1935 and the commencement of the Constitution on
26 January 1950. The Central Civil Services(Classification, Control and Appeal)
Rules 1957 were replaced by the Central Civil Services(Classification, Control
and Appeal) Rules 1965 which, as mentioned earlier, are in force at present.
19. The Government of India Act 1935 contained the following two
provisions of the earlier Government of India Act 1919 :
(i) Every person holding a civil post under the Government holds it “during
the pleasure of the Crown”.
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(ii) No person holding a civil post in the central or provincial Government
can be dismissed by an Authority subordinate to that by which he was
appointed.
20. The Government of India Act 1935 also went a step further and
provided that no civil servant or person holding a civil post can be dismissed
from service or reduced in rank until he has been given a reasonable
opportunity of showing cause against the penalty proposed to be imposed on
him. The stipulation “reasonable opportunity” to show cause was not
applicable
(i) if a person holding a civil post or in the Civil Service is either dismissed or
reduced in rank on ground of conduct which has led to his conviction on a
criminal charge or ,
(ii) where the Authority empowered to dismiss or reduce him in rank is
satisfied for reasons to be recorded in writing that it would not be reasonably
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practicable to hold an inquiry and give the delinquent government servant a
reasonable opportunity to show cause against the Articles of Charge served on
him.
21. As mentioned earlier, the Constitution of India in regard to provisions
for the Services under the Union or a State has been modelled on the
Government of India Act 1935.
22. A major departure from the Government of India Act 1935 is that the
Constitution of India provided, under the second proviso to Article 311(2) at
sub‐clause(c), that an opportunity of being heard in respect of the charges shall
not be given to a delinquent government servant if the President or the
Governor, as the case may be, is satisfied that it is not expedient to hold an
Inquiry in the interest of security of the State. There was no such provision in
the Government of India Act 1935.
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23. There was also no provision analogous to Clause (3) of Article 311 of the
Constitution in the Government of India Act 1935 that if a question arose
whether it would be reasonably practicable to hold a Disciplinary Inquiry, the
decision thereon of the Authority competent to dismiss, remove or reduce the
Government Servant in rank shall be final.
24. Article 311(2) of the Constitution, as it was originally enacted, stipulated
as follows :
“No such person as aforesaid shall be dismissed or removed from service
or reduced in rank until he has been given a reasonable opportunity of
showing cause against action proposed to be taken in regard to him.”
25. By the Constitution (Fifteenth Amendment) Act 1963, Clause(2) of
Article 311 was amended as follows :
“No such person as aforesaid shall be dismissed, removed or reduced in
rank except after an Inquiry in which he has been informed of charges
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against him and given a reasonable opportunity of being heard in
respect of those charges;
Provided that when it is proposed after such Inquiry to impose
upon him any such penalty, such penalty may be imposed on the basis of
evidence adduced during such Inquiry and it shall not be necessary to
give such person any opportunity of making representation against the
penalty proposed.”
26. By the Constitution(Forty Second Amendment) Act 1976 ‐ which came
into effect from the 1st of January 1977 – the right of the delinquent
Government Servant to represent against the proposed penalty was deleted.
27. Even though, for the first time, it was laid down by the Supreme Court
in Union of India versus H.C.Goel (AIR 1964 SC 364) that “reasonable
opportunity” envisaged in Article 311(2) of the Constitution made it obligatory
for the Disciplinary Authority to furnish a copy of the Report of Inquiry to the
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delinquent Government Servant with the views of the Disciplinary Authority if
such Authority disagreed with the findings of the Inquiry Officer, it was not
until the judgement of the Supreme Court in Union of India versus Md
Ramzan Khan (AIR 1991 SC 471) that it became obligatory for the Disciplinary
Authority to furnish a copy of the Report of Inquiry with the observations of
the Disciplinary Authority, if any, to the delinquent Government Servant to
enable him to represent against the findings of the Inquiry Officer and the
observations of the Disciplinary Authority. The mandatory requirement to
furnish a copy of the Report of Inquiry to the delinquent Government Servant
was enforced after 20 November 1991 – the date of the judgement in Md
Ramzan Khan’s case(supra).
28. Under the existing instructions, the Disciplinary Authority is required to
consider the representation of the delinquent Government Servant before it
could impose on him any of the penalties under the relevant Service Rules.
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29. In view of the pronouncements of the Supreme Court on the scope and
ambit of “reasonable opportunity” in Article 311(2) of the Constitution,
including the judgement in Khem Chand versus Union of India(AIR 1958 SC
300) which is a locus classicus on the subject, “reasonable opportunity” in
Article 311(2) comprises the following:‐
(i) Service of the Articles of Charge on the delinquent Government Servant
with the imputations in support thereof and the list of witnesses and
documents in support of the Acts of charge;
(ii) An opportunity to the delinquent Government Servant to deny the
alleged misconduct, as contained in the Articles of Charge, and establish his
innocence;
(iii) An opportunity to the delinquent Government Servant to defend himself
by cross‐examining the witnesses of the Presenting Officer and an opportunity
to examine himself and his own witnesses in defence;
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(iv) An opportunity to get copies of the relevant documents on which the
Articles of Charge are based. The copies of the documents must be in a
language which the delinquent Government Servant understands.
(v) An opportunity to get a copy of the Report of Inquiry (with the
comments of the Disciplinary Authority if the Disciplinary Authority disagrees
with any findings of the Inquiry Officer in his Report of Inquiry) so that the
delinquent Government Servant could represent against the findings of the
Inquiry Officer or the observations of the Disciplinary Authority. In other
words, the delinquent Government Servant will get an opportunity to point out
how the Inquiry Officer has either arrived at a wrong finding or the Disciplinary
Authority has made any wrong observations in the Disagreement Note.
30. As held by the Supreme Court in Managing Director ECIL versus B.
Karunakar(AIR 1994 SC 1074) ‐ there could be glaring errors and omissions in
a Report of Inquiry or the Report may have been based on no evidence or
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rendered in disregard to or by overlooking evidence. If the Report of Inquiry,
with the Disagreement Note, if any, of the Disciplinary Authority, is not made
available to the delinquent Government Servant, the crucial Report on the
basis of which the Disciplinary Authority imposes a suitable penalty, never
comes to be known to the delinquent Government Servant. The result is that
such Government Servant gets no opportunity to point out errors and
omissions, if any, and to disabuse the mind of the Disciplinary Authority before
he is pronounced guilty. The Supreme Court, therefore, held that non‐supply of
a copy of the Report of Inquiry to the delinquent Government Servant was a
violation of the principle of Natural Justice and a denial of “reasonable
opportunity” to the delinquent Government Servant to defend himself.
31. We now propose to deal with some issues connected with Disciplinary
Inquiries against Governments Servants. Parliament has enacted a law viz. The
Departmental Inquiries (Enforcement of Attendance of Witnesses and
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Production of Documents) Act 1972 to facilitate smooth disposal of
Disciplinary Inquiries where witnesses – ordinarily those witnesses who are not
under the administrative control of the Disciplinary Authority – are called by
the Inquiry Officer to depose during the hearing and where documents – not
in the custody of the Disciplinary Authority – are required to be produced to
either prove a charge against a delinquent Government Servant by the
Presenting Officer or to disprove a charge when such document is sought to
be produced before the Inquiry Officer by the delinquent Government Servant.
At present, for each Departmental Inquiry, the Central Government has only
powers to issue a Notification under the Act of 1972 empowering an Inquiry
Officer to enforce attendance of witnesses or ensure production of
documents. A separate Notification in each case of a Departmental Inquiry
empowering an Inquiry Officer under the Act of 1972 is a time‐taking process
and does not serve any useful purpose. We, therefore, recommend that the
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Act of 1972 be amended to authorize any Inquiry Officer to exercise powers
of enforcement of attendance of witnesses and production of documents
during pendency of any Disciplinary Inquiry. In the alternative, the feasibility
of achieving the same objective through a suitable provision in the relevant
Service Rules may also be examined and, if found feasible, put into effect.
32. We noted that sometimes, a delinquent Government Servant prays for
adjournment of hearings in a Disciplinary Inquiry on a false pretext. It was
argued that to check such abuse the Service Rules be amended to provide for a
maximum number of three adjournments in the entire course of hearing
before an Inquiry Officer.
33. We have not been able to persuade ourselves to accept this line of
argument. In our view, fixing the maximum number of adjournments in the
course of a hearing of a Disciplinary Inquiry will put an unnecessary fetter on
the bonafide exercise of power by an Inquiry Officer to grant adjournment of
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hearing in suitable cases. We are not aware of any provision in a civil or a
criminal law which limits exercise of bonafide discretion of a Court of Law to
grant adjournments of hearing either on the plea of the prosecution or prayer
of the accused in a criminal case or on the petition of the plaintiff and the
request of the respondent in a Civil Suit. An Inquiry Officer in a Disciplinary
Inquiry is a quasi‐judicial authority. The principles of Natural Justice – which
are nothing more than “fair play in action” – require that an Inquiry Officer has
to be a fair‐minded person without bias or pre‐conceived notion. Such a
person is presumed to exercise his discretion judiciously. We reiterate that an
Inquiry Officer – though appointed by a Disciplinary Authority – must act fairly
lest his orders be set aside as being arbitrary and in violation of Article 14 of
the Constitution. As held by the Supreme Court in Maneka Gandhi versus
Union of India (AIR 1978 SC 497) even executive action, to be lawful, must be
just, fair and reasonable and not arbitrary or fanciful.
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34. In many Departments/Ministries, there may not be adequate number of
officers who are thorough with the Service Rules and the executive instructions
regulating Disciplinary Inquiries. We recommend that to make up the shortage
of competent Inquiry Officers, every Head of Office/Head of the Department
may have a list of names and addresses of retired officers who have a
reputation for integrity and who are well‐versed with the Service Rules and the
instructions in regard to Disciplinary Inquiries. Once the panel of Inquiry
Officers is finalized, the Disciplinary Authority may appoint any one out of the
panel of names of retired officers as the Inquiry Officer. It must be ensured
that a retired officer appointed as an Inquiry Officer should have been in a
higher grade, when he retired on superannuation, than the delinquent
Government Servant facing the Disciplinary Inquiry.
35. As far as practicable, an Inquiry Officer should conduct the hearing on a
day‐to‐day basis to complete the Inquiry expeditiously. Each Inquiry Officer
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should be required to maintain an order sheet to record proceedings of the
Inquiry on the day of Inquiry and other relevant matters. If the Inquiry cannot
be conducted on a day‐to‐day basis, the Inquiry Officer should record in the
order sheet the reasons why the Inquiry could not be held on a day‐to‐day
basis. The Inquiry Officer should also mention in the order sheet the next date
of Inquiry and other relevant matters. The order sheet is also required to
record the order of the Inquiry Officer if an adjournment of hearing is sought
by either the Presenting Officer or the delinquent Government Servant.
36(a) There are Commissioners for Departmental Inquiries (CDIs) under the
CVC to function as whole‐time Inquiry Officers of Departmental Inquiries
against senior Government Servants. These CDIs, who belong to different
Group A Services under the Central Government, are on deputation to the CVC
under the Central Staffing Scheme. Once a CDI is transferred out of the CVC on
expiry of his period of deputation or otherwise, it takes time for appointment
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of his successor as the Inquiry Officer. To eliminate such delay it would be
expedient to designate CDIs under the CVC in a numerical or alphabetical
manner, viz., CDI‐I, CDI‐II or CDI‐A, CDI‐B and so on. Under such an
arrangement, Departmental Inquiries could be entrusted to CDI‐I or CDI‐II with
the stipulation that CDI‐II will take over if CDI‐I is no longer available to
conduct the Inquiry due to his transfer or other reasons. If such an innovative
practice is introduced in the order of appointment of CDIs as Inquiry Officer in
a particular Inquiry, there would be no need for fresh order of the Disciplinary
Authority for appointment of the successor CDI as the Inquiry Officer in the
same Inquiry. By the proposed change in procedure, continuity would be far
better maintained in pending Departmental Inquiries and also loss of valuable
time prevented.
(b) As a CDI gets adequate experience in conducting a Disciplinary Inquiry, it
is in the public interest that he should be allowed a longer tenure in the CVC
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than at present. In our view, a CDI should not be subject to the normal rule of
deputation applicable for a Central Government Servant. We, however, would
leave it to the Department of Personnel and Training to fix the normal period
of deputation of a CDI keeping in view our recommendation that a CDI should
stay for a sufficiently long period in the CVC.
37(a) We are of the view that the fees paid to the Inquiry Officers, as at
present, are not adequate compensation for the arduous nature of work in a
Disciplinary Inquiry. We have noted that an Inquiry Officer who is a serving
officer conducts a Departmental Inquiry in addition to his duties and not many
serving officers are willing to function as Inquiry Officers. We recommend
that if a serving officer is appointed as an Inquiry Officer he may be granted an
honorarium ranging from Rupees Five Thousand to Rupees Ten Thousand per
case. At present a serving officer gets only an honorarium of Rs.3000/‐ per case
if he works as an Inquiry Officer in addition to his duties.
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(b) In case of a retired officer, appointed as an Inquiry Officer, the
honorarium may vary from Rupees Fifteen Thousand to Rupees Seventy Five
Thousand per case. We have recommended substantially higher honorarium
than the present honorarium of Rs.9750 for each case for a retired officer
appointed as an Inquiry Officer. Such officers would be of different grades
ranging from retired Section Officers or officers of equivalent rank to retired
Secretaries to the Government of India or officers of equivalent rank.
(c) It would not be out of place to mention that Central Government Public
Sector Undertakings pay substantial per diem sitting fee to retired senior
functionaries from the higher judiciary and retired high‐ranking Government
Servants acting as Arbitrators or Conciliators under the Arbitration and
Concilation Act 1996. Besides, a per diem transport allowance as well as board
and lodging in star hotels are also provided.
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(d) A retired officer who is appointed as an Inquiry Officer may also get a
consolidated transport allowance of Rupees Fifteen Thousand to Rupees
Forty Thousand per case so that he is not out‐of‐pocket. In cases where
assistance of a steno‐typist is not given to a retired officer appointed as an
Inquiry officer, the Disciplinary Authority may sanction upto Rs.30,000 as an
allowance per case for stenographic assistance depending on the volume of
paper work in the case. If either a serving or a retired officer does not
complete the Disciplinary Inquiry within the time‐frame recommended by us,
the Disciplinary Authority may reduce the amount of honorarium and
allowances as per his discretion.
(e) We recommend that in the matter of payment of honorarium and
allowances to serving and retired officers appointed as Inquiry Officers, the
decision of the Disciplinary Authority shall be final and he need not seek any
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other approval for payment of honorarium once the scale of honorarium is
fixed by the Department of Personnel and Training, Government of India.
38. It was brought to our notice that delayed payment or virtual nonpayment
of the ‘prosecution’ witness is a serious contributor to the delay in
disposal of criminal cases and Departmental Inquiries. It appears to us that the
problem can be tackled in the following manner :
(a) If the witness is a serving Government Servant, the expenses would, as
usual, be borne by the Department/Organisation that disburses his salary.
(b) In case the witness is a retired Government Servant and he is appearing
as a witness for the CBI, the expenses of travel and accommodation would, in
the first instance, be borne by the CBI and subsequently adjusted between the
CBI and the Department concerned.
(c) In case the witness is a retired Government Servant and is appearing
before the CDI in a Departmental Inquiry, the expenses would be borne, in the
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first instance, by the CVC and subsequently be adjusted with the
Department/Organisation concerned.
(d) In all other cases involving payment of the expenses to witnesses who
are retired Government Servants, these would be borne by the Department
that appointed the Inquiry Officer, ensuring that, as far as possible, the
payment is made upon completion of the testimony and not delayed unduly.
39. We reiterate that the effort to secure speedy disposal of Disciplinary
Inquiries – both pending ones and those that will arise in future – requires the
availability of Inquiry Officers who have the background, time and willingness
to take up the task. This availability has to be met not only at Delhi but at a
large number of locations in the country, keeping in view the spread of senior
Government Servants under the Government of India. The following steps can
be considered in this regard:
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(a) In the metropolitan cities, State Capitals and some major cities such as
Nagpur, Kanpur, Pune, Kochi and Vizag, which are not State Capitals, the
Department of Personnel & Training, Government of India may undertake
preparation of a panel of retired officers of competence and reputation for
integrity, fairness and objectivity to be appointed as Inquiry Officers or as
Presenting Officers.
(b) For other major cities in the country, the various
Departments/Ministries should prepare similar panels of retired officers. The
Central Board of Direct Taxes, for example, could have a panel for places with
large presence of senior officers while the Department of Posts could have a
panel where the Post Masters General are located. Other Organisations and
Departments of the Central Government may act also in a similar manner to
prepare panels of names of retired Officers to act as Inquiry Officers or
Presenting Officers.
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(c) We also reiterate that the panels thus prepared should desirably
comprise officers of varying levels of seniority in order that inquiries pertaining
to different grades of delinquent Government Servants could be entrusted to
them.
40. In our opinion, if panels of names of persons with their former
designations and address are available for appointment as Inquiry
Officers/Presenting Officers and the Inquiry Officers/Presenting Officers are
paid honorarium, transport allowance and secretarial allowance on the scale
recommended by us, this would be a big step to expedite Disciplinary
Inquiries, which at present are proceeding sluggishly.
41. We also recommend that the Department of Personnel and Training,
Government of India could consider giving suitable publicity to this exercise so
that competent retired officers with experience of conducting Disciplinary
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Inquiries come forward for empanellment as Inquiry Officers/Presenting
Officers.
42. We also recommend an honorarium of Rupees Five Thousand to Rupees
Ten Thousand for a Serving Officer who is a Presenting Officer for each case of
Disciplinary Inquiry. The nature of work of a Presenting Officer is also
arduous. In complicated cases, where a number of documents have to be
presented and a number of witnesses have to be examined, the honorarium to
the Presenting Officer may be increased by the Disciplinary Authority to
Rupees Ten Thousand, which is the maximum amount of honorarium for a
Presenting Officer recommended by us. Where necessary, a suitable retired
officer, who worked in a Department/Ministry before retirement, may be
appointed as the Presenting Officer in a Disciplinary Inquiry of the concerned
Department/Ministry, as he is expected to be familiar with the work of the
Department/Ministry. If a retired officer is appointed as the Presenting
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Officer, he may be granted an honorarium ranging from 15,000/‐ to 25,000/‐
per Disciplinary Inquiry. Appointment of competent retired officers as
Presenting Officers is recommended by us as far as possible since serving
officers are sometimes transferred during pendency of a Disciplinary Inquiry,
causing a lot of dislocation and delay in the Inquiry.
43. A Presenting Officer, who is usually from the Head of Office or the Head
of the Department where the delinquent Government Servant is working or
was working, has to be thorough with the facts of the case so that he can
unravel the truth and try to ensure that the findings of the Inquiry Officer are
in favour of the Department/Ministry and against the delinquent Government
Servant. We have noted that because of lack of adequate preparation on the
part of Presenting Officers, a number of delinquent Government Servants have
escaped penalties which they otherwise deserved for their misconduct.
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44. In our opinion, there should be no embargo on the number of cases in
which a serving or retired officer can be an Inquiry Officer or a Presenting
Officer and the matter be best left to the discretion of the Disciplinary
Authority. As the entire exercise in a Disciplinary Inquiry is to achieve
expeditious disposal, the Disciplinary Authority should be given full powers to
appoint anyone in the panel of names as an Inquiry Officer or a Presenting
Officer and to fix the honorarium and other allowances within the limits
recommended by us. As mentioned earlier, the number of cases an Inquiry
Officer or a Presenting Officer can handle at a time may be left to the
discretion of the Disciplinary Authority. We may, however, observe that it
would be difficult for a retired officer to be the Inquiry Officer or a Presenting
Officer in more than three Disciplinary Inquiries at a time.
45. Article 311(2) of the Constitution stipulates that a delinquent
Government Servant would be given reasonable opportunity to be heard in
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respect of the Articles of Charge against him before the Competent Authority
can impose the penalty of dismissal or removal from service or reduction in
rank. Article 311(2) does not stipulate any detailed Inquiry by appointment
of an Inquiry Officer if the Disciplinary Authority, on facts of the case, decides
to impose a minor penalty. We do not see any justification for a detailed
Inquiry if the Disciplinary Authority decides on the basis of the nature of the
charges and facts of the case that a suitable minor penalty will meet the ends
of justice. Under the Service Rules, in a minor penalty Disciplinary Inquiry, the
Articles of Charge have to be served on a delinquent Government Servant, who
is required to furnish his explanation within the stipulated period. The
Disciplinary Authority has to consider the explanation of the delinquent
Government Servant before imposing any minor penalty. In our view, this
procedure is adequate to meet the requirements of the Rule of audi alteram
partem(Right of being heard), which is a vital principle of Natural Justice.
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Moreover, as laid down by the Supreme Court in A.K.Kraipak versus Union of
India (AIR 1970 SC 150) if a statute expressly or by necessary implication omits
the application of the Rules of Natural Justice, the statute will not be
invalidated for such omission. In the judgement on Chairman Board of Mining
Examiners versus Ramjee (AIR 1977 SC 1965) it was held that Natural Justice
is no unruly horse, no lurking land mine nor a judicial cure‐all. In view of the
totality of facts and the law on the subject, we recommend that if the
Disciplinary Authority decides to impose a minor penalty, he can do so in a
minor penalty Disciplinary Inquiry on the basis of explanation of the
delinquent Government Servant to the Articles of Charge and no elaborate
Inquiry, envisaged in the Service Rules as at present, should be necessary.
Our recommendation, if accepted, would require an amendment of the Service
Rules only.
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46. In our view, a minor penalty Disciplinary Inquiry can be concluded
within a maximum period of sixty days from the date of service of the Articles
of Charge. We have elsewhere observed that in a minor penalty Disciplinary
Inquiry, there is no constitutional stipulation of conducting a detailed inquiry
as envisaged in Article 311(2) of the Constitution. We have also recommended
that the UPSC need not be consulted before imposition of any one of the
minor penalties and the UPSC needs to be consulted only at the appellate
stage for such penalties. We clarify that in so far as officers of the All‐India
Services serving in connection with affairs of a State are concerned, prior
consultation with the UPSC, as at present, would continue to be necessary
before imposition of any of the minor penalties by the State Government. If
our recommendation is accepted, as already mentioned, all minor penalty
Inquiries against officers of the Group A and B categories under the Central
Government including offices of the All‐India Services on Central deputation
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can be concluded within a maximum period of sixty days from the date of
service of the Articles of Charge. In our opinion, a minor penalty swiftly but
judiciously imposed by a Disciplinary Authority is much more effective than a
major penalty imposed after years spent on a protracted Inquiry.
47(a) We have, in this Report, adopted the approach that for the officers of
the All‐India Services serving in connection with affairs of the Union, a minor
penalty can be imposed without consultation with the UPSC whereas prior
consultation with the UPSC would continue to be necessary in respect of such
officers serving in connection with affairs of a State. This approach may, on the
face of it, appear to be discriminatory. Our recommendation in this regard,
however, is based on careful appreciation of the situation prevailing in the
country. The All‐India Services, particularly the Indian Administrative Service
and the Indian Police Service, are a very important arm of the Government in
any State for the implementation of development programmes, for
40
maintenance of law and order and for policy formulation. In this context, we
have noted that in the Government of India, institutions and procedural
arrangements are in place to prevent any harassment or vindictive action and
to ensure objectivity in the exercise undergone while awarding penalties. For
one, there is the CVC, a high‐powered, statutory body since the year 2003
whose advice is obtained in disciplinary matters having vigilance angle.
Secondly, a disciplinary matter of an All‐India Service officer serving any of the
Departments/Ministries of the Government of India, would, in so far as the
award of a minor penalty is concerned, is processed and decided by the
Department of Personnel and Training, whose Minister‐in‐charge is the Prime
Minister himself.
(b) Therefore, we feel that until such time as Statutory Vigilance
Commissions on the lines of the CVC come into existence in all the States, the
dispensation proposed by us, viz., prior consultation with the UPSC before
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imposition of a minor penalty on officers belonging to the All‐India Services
and serving in connection with affairs of a State should continue to operate.
(We have, of course, elsewhere stated that the Government of India should
use its good offices to ensure the establishment of Vigilance Commissions in
the States on the lines of the Central Vigilance Commission.)
48. For major penalty Inquiries as envisaged in Article 311(2) of the
Constitution, where the Inquiry Officer has to do a detailed inquiry into the
Articles of Charge by examination of witnesses both of the Presenting Officer
and of the delinquent Government Servant and where relevant documents
have to be examined/exhibited for a just decision in the case, the maximum
time could be twelve months from the date of service of the Articles of Charge
before the case records are referred to the UPSC for advice under Article
320(3)(c) of the Constitution. Hopefully, if the UPSC takes a maximum period of
five to six months to give its considered advice, the Disciplinary Inquiry for a
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major penalty can be concluded within a maximum period of eighteen months
from the date of service of Articles of Charge on the delinquent Government
Servant till the date of the final order by the Disciplinary Authority, after
consultation with the UPSC. (Elsewhere in this Report, we have recommended
that the CVC’s second stage advice may be dispensed with because of reasons
mentioned by us. We would like to leave it to the best judgement of the UPSC
to devise methods for reducing the time taken by it in rendering its advice
under Article 320(3) (c) of the Constitution.)
49. At present, matters concerning Disciplinary Inquiries against
Government Servants of Group A and Group B categories of the Central
Government and officers of the All‐India Services working on central
deputation are put up to the Minister‐in‐charge of the Department/Ministry
for orders. (It is clarified that for officers of the All‐India Services serving in
connection with the affairs of a State, the State Government is competent to
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initiate any major or minor penalty Disciplinary Inquiry but the State
Government is competent to impose only a minor penalty on an All‐India
Service Officer serving in connection with affairs of a State and for imposing
any major penalty on such an officer, the State Government has to submit the
case to the Central Government in the appropriate Department/Ministry,
which is the Cadre Controlling Authority of the All‐India Service Officers.)
Broadly stated, the steps for which at present order of the Minister‐in‐charge
as the Disciplinary Authority is sought are as follows:
(i) To initiate a Disciplinary Inquiry and for order whether the contemplated
Inquiry would be a major penalty or a minor penalty Inquiry.
(ii) To consider explanation of the delinquent Government Servant to the
Articles of Charge to decide whether the Inquiry would be closed because of
the satisfactory explanation of the Government Servant or whether the Inquiry
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would proceed as the explanation of the Government Servant is either not
satisfactory or the Government Servant has denied the Articles of Charge.
(iii) To appoint an Inquiry Officer.
(iv) For observations on the Report of Inquiry before a copy of the Report of
Inquiry along with Disagreement Note, if any, of the Minister‐in‐charge as the
Disciplinary Authority, is sent to the delinquent Government Servant to enable
him to submit his representation on findings in the Report of Inquiry and the
Disagreement Note.
(v) For final order of the Minister‐in‐charge as the Disciplinary Authority
whether the delinquent Government Servant is to be exonerated or penalised
and the quantum of penalty to be imposed on him after consultation with the
CVC and the UPSC.