Hota Committee Report Pages 100 to 149

100. Our Constitution is a pragmatic document. The framers of the
Constitution had provided for Preventive Detention of a person on specified
grounds even during peace time whereas all major democratic countries in
the world have taken recourse to preventive detention as a war measure
101. In our view, if today the framers of the Constitution were to meet again
in a Constituent Assembly, they would surely make provision for removal or
dismissal from service under the relevant Service Rules of a corrupt
Government Servant facing criminal trial for offence under the Prevention of
Corruption Act 1988 or facing a major penalty Disciplinary Inquiry for
allegations constituting the same offence as in recent years, corruption
among Government Servants has become endemic and has been eroding the
confidence of the common man in governance.
102. It was pointed out to us that the proposed amendment of Article 311 to
remove or dismiss a Government Servant pending criminal trial or pending
post‐decisional hearing is likely to cause serious prejudice to the delinquent
Government Servant in his defence as the Government Servant removed or
dismissed from service would not be entitled to any subsistence allowance
which would have been otherwise admissible to him while under suspension
pending criminal trial/major penalty Inquiry. We recommend that the
Government of India/a State Government may consider payment of
compassionate monthly allowance at par with monthly subsistence
allowance during suspension from service. We have noted that under the
existing Pension rules, there is a provision for payment of compassionate
monthly allowance even to a dismissed Government Servant. Such monthly
compassionate allowance is not less than the monthly subsistence allowance
payable to a Government Servant during suspension from service.
103. We are of the view that the amendment to Article 311 of the
Constitution proposed by us will be welcomed by the media, the Political
Executive, the honest Government Servants and also by the vast mass of
common people of the country who at present see no light at the end of the
tunnel of increasing corrupt practice.
104. At present, Government Servants can be prosecuted without sanction
under Section 19 of the Prevention of Corruption Act 1988 once they have
retired from service. However, under Section 197 of the Code of Criminal
Procedure 1973, sanction is required for retired Government Servants who
were appointees of the President or the Governor. We feel that the Prevention
of Corruption Act 1988 should be amended to mandate prior sanction for
prosecution of Government Servants even after their retirement bringing it on
par with the sanction of prosecution of Government Servants under Section
197 of the Code of Criminal Procedure 1973. This would ensure that
Government Servants while in service act boldly and without fear of
harassment after retirement from service for bonafide performance of official
duties while in service.
105. As far as the sanction under Section 197 of Code of Criminal Procedure
1973 is concerned, there is a distinction between a Government Servant
serving directly under the Government in a Department/Ministry and a
Government Servant on deputation to Government controlled organizations.
At present the protection of sanction is not available to the Government
Servant on deputation to a Co‐operative Society or other similar Organisations.
We consider this as unfair since the Government Servant posted to such
organizations on deputation is very much discharging official duties at the
behest of the Competent Authority of the Organisation to which he has been
on deputation. We recommend that Section 197 of the Code of Criminal
Procedure 1973 may also be amended to extend the requirement of sanction
for prosecution to the Government Servants on deputation to Governmentowned
or Government controlled organizations also. This recommendation is
not to be viewed as insulating such Government Servants from penal action for
corruption but rather as a protection against misinformed criminal action for
official acts done by them in good faith.
106. The Advisory Boards recommended by us are distinct from the
institutional arrangement set up by the CVC in consultation with the Reserve
Bank of India to advise the CBI on guidelines to decide the malafides or
otherwise in the conduct of Bank officials in specific instances referred to it.
This body of Banking experts advises the CBI prior to the registration of
preliminary enquiries and protects Bank officials from harassment when
normally prudent commercial decisions go wrong due to circumstances beyond
their control. The extension of such an arrangement, which is purely informal
and advisory to the CBI in case of officers of the Public Sector Undertakings and
Departments such as Income‐Tax, Customs and Excise and the Railways, is a
matter for consideration of the CVC/Government.
107. The Constitution of Advisory Boards presided over by former judges of the
Supreme Court/High Court, as recommended by us, would also streamline the
process for obtaining sanction of prosecution by the investigating agencies
under Section 19 of the Prevention of Corruption Act 1988. At present, there is
considerable delay in according sanction or refusing to accord sanction by the
competent authorities. The processing of requests for sanction of prosecution
through the Advisory Boards would facilitate issue/denial of sanction in a timebound
manner and all requests for sanction of prosecution could be disposed
of by a Department/Ministry in a period of three months at the most.
108. In the course of our deliberations, we examined the issue of sanction of
prosecution under the Prevention of Corruption Act 1988 pending with
different Departments/Ministries for long periods. Elsewhere in this Report,
we have already discussed different issues regarding sanction for prosecution
under the Prevention of Corruption Act 1988. Regarding the cases pending at
present for sanction of prosecution, we suggest that the
Departments/Ministries should dispose of by 30 November 2010 all pending
cases after recording speaking orders in each case. In the event of any case for
sanction of prosecution not getting disposed of by the Department/Ministry by
the aforesaid deadline of 30 November 2010, a Committee chaired by the
Secretary, Department of Personnel & Training, Government of India as
provided for in the Office Memorandum of the Department of Personnel &
Training dated 06 November 2006 may meet and finalize the issue of sanction
of prosecution through a speaking order after obtaining the order of the Prime
Minister as the Minister‐in‐charge.
109. Data furnished to us shows that, in respect of the All India Services, the
problem of delay in the course of and in final decisions in Disciplinary Inquiries
is far more serious in the States than in the Government of India. In other
words, far more cases initiated by the States against the All‐India Service
Officers are pending disposal than those initiated by the Central Government.
While we are not attempting here an analysis of the causes of delay, the fact
remains that there is need for improving the position. To this end, we feel that
the step most likely to achieve desirable results is effective monitoring by the
Department of Personnel and Training, Government of India for IAS officers
serving in connection with affairs of a state, by the Ministry of Home Affairs for
the IPS officers serving in connection with affairs of a state and by the Ministry
of Environment and Forests for officers of the Indian Forest Service serving in
connection with affairs of a state. Where necessary, the Department/Ministry
concerned of the Government of India and the State Government should be
associated with the task of monitoring of progress of pending Disciplinary
Inquiries. Each case of a Disciplinary Inquiry needs to be gone into in detail to
identify the factors causing delay in decision‐making with a view to finding
easy and practicable answers rather than indulging in fault‐finding and
correspondence. For example, if a Disciplinary Inquiry is getting delayed owing
to delay in furnishing of copies to the charged officer of documents available
with different authorities at various locations, the organizations having custody
of the relevant documents can be called together at one place when the
documents can be inspected by the charged officer and photocopies furnished
to him. (It would be useful to obtain, at the appropriate stage, from the
charged officer in writing a confirmation to the effect that he has
inspected/obtained copies of all the documents that he is in need of.) The
important things during such monitoring exercises, we wish to reiterate, would
be in‐depth analysis, frank discussions, a positive approach to removal of
bottlenecks and fixing of deadlines for review of progress. We are confident
that such an approach would result in an improved picture in this regard and
Disciplinary Inquiry cases against the officers of the All‐India Services serving
in connection with affairs of a State, which are making either no progress or
making very slow progress, would start getting expedited.
110. We have come across instances where due to long pendency of either
criminal cases or Disciplinary Inquiries, a Government Servant does not get
his legitimate chance for deputation or promotion. In some cases, the
Government Servant also suffers the ignominy of being under suspension for
a long period. During pendency of an investigation by the CBI/the Vigilance
Directorate/the ACB on charges of corrupt practice, the Government Servant
is also denied his chance for deputation or promotion.
111. There is provision for periodic review of the order of suspension of a
Government Servant but we could not lay our hands on any Instruction for
such periodic review in cases pending investigation by the CBI/the Vigilance
Directorate/the ACB.
112. We could not have access to data as to how many officers in
Government of India are at present denied deputation/promotion because of
criminal cases under investigation, because of pendency of Disciplinary
Inquiries or because criminal cases against them are sub‐judice.
113. In our view, the Government of India, which is a model employer, should
review the present instructions regarding denial of deputation or promotion to
such officers even though there is a “Sealed Cover” procedure for such officers
as approved in the judgement of the Supreme Court in Union of India versus
K.V.Janakiraman(AIR 1991 SC 2010).
114. An important point to be noted is that the aforesaid judgement in
Janakiraman’s case(supra) stipulates that “sealed cover” procedure is to be
adopted after submission of charge sheet and not before it. The existing
instructions of the Government of India are, however, different. Even when a
criminal case is pending investigation or a Disciplinary Inquiry is
contemplated against a Government Servant he does not get the “integrity
certificate” from the Department/Ministry and consequently he cannot be
considered for promotion – a situation not envisaged by the Supreme Court
in Janakiraman’s case(supra).
115. Whereas we whole‐heartedly endorse the action of the Government to
penalize and punish delinquent Government Servants, it may be considered
whether an appropriate mechanism can be put in place in the following cases
by modification of the existing instructions:
(i) Where a criminal case is under investigation, if the charge sheet
under Section 173 of the Code of Criminal Procedure 1973 is not filed in
a court of law of competent jurisdiction within a period of one year
from the date of the F.I.R. under Section 154 of the Code of Criminal
Procedure 1973, the officer may be considered for
promotion/deputation unless the Disciplinary Authority, on review of
his case, decides to deny deputation/promotion to such officer during
pendency of investigation on grounds to be recorded in writing. We
recommend that if the investigation gets delayed beyond one year from
the date of the FIR, the case may be reviewed again at periodic intervals
of six months to decide whether to give him clearance for
(ii) A similar course of action may be taken if a pending Disciplinary
Inquiry is not over within eighteen months of the date of service of
Articles of Charge on a delinquent officer in a major penalty Disciplinary
Inquiry or within two months of the date of service of Articles of Charge
in a minor penalty Disciplinary Inquiry.
(iii) We recommend that the officer should not be considered for
deputation/promotion until the final disposal of the pending criminal
case against him under the Prevention of Corruption Act 1988 or the
final disposal of a pending minor/major penalty Disciplinary Inquiry
against him if the Articles of Charge have been served on him and the
stipulated period of two months or eighteen months, as aforesaid, or
any other extended period, is not over.
116(a) We have noted that in a few cases even after orders of the competent
Authority have been obtained to initiate Preliminary Inquiry into the
allegations, no action has been taken to either frame or serve the Articles of
Charge on the delinquent Government Servant in a Disciplinary Inquiry even
after a lapse of two or three years. Such a state of affairs is unfair to the
Government Servant concerned as his integrity certificate is withheld due to
lack of ‘vigilance clearance’.
(b) We recommend that in all such cases as of now, where Disciplinary
Inquiry has been under contemplation for more than one year, the Disciplinary
Authority should take a final decision by 31 December 2010, whether he would
like to go ahead with the Disciplinary Inquiry or close the Inquiry under
contemplation. If the Disciplinary Authority wants to go ahead with the
Disciplinary Inquiry, the Articles of Charge in such pending cases must be
served on the delinquent Government Servant not later than 31 January 2011.
In appropriate cases, if the Disciplinary Inquiry under contemplation is not
initiated, the matter should be closed on the orders of the Disciplinary
Authority by 31 October 2010.
117. It was stressed before us that when high ranking officers of the Central
Government/officers of the All‐India Services are charged with corrupt
practice/lack of integrity, public interest mandates that they must be penalized
swiftly. We recommend that a panel of names of retired Secretaries to the
Government of India or officers of equivalent rank be prepared by the
Department of Personnel and Training, and any major penalty inquiry against a
high‐ranking delinquent Central Government Servant/delinquent officer of the
All‐India Services serving under the Central Government or in connection with
affairs of a state, be entrusted to a member of such a panel to facilitate fasttrack
disposal. In our view, such a panel of retired Secretaries to Government
of India/officers of equivalent rank would ensure ready availability of Inquiry
Officers who have a reputation for integrity and competence to inquire into
allegations of corrupt practice against high‐ranking Government
officials/officers of the All‐India Services, whether serving under the Central
Government or serving in connection with affairs of a state.
118. It was brought to our notice that at present, if the Central Government
does not accept the advice of the UPSC in any disciplinary matter concerning
any officer of the Indian Administrative Service, the Central Secretariat Service
or the Central Secretariat Stenographers’ Service, the matter has to be placed
before the high‐level Committee of Secretaries for consideration. Thereafter,
orders of the Prime Minister, as the Minister‐in‐charge, are obtained to
disagree with the advice of the UPSC. This dispensation ensures that any
specific case of disagreement with the UPSC in a disciplinary matter is
discussed in the first instance in the Committee of Secretaries before it is
submitted to the Prime Minister as the Minister–in‐charge for orders. We feel
that while this is a good practice, it will, by its very nature, involve some delay
in the disposal of the particular case. The balance of advantage, however, lies
in continuing with this practice. Further, taking an overall view of the matter,
we feel that the practice of the Committee of Secretaries considering an item
of disagreement with the advice of the UPSC in a disciplinary matter may not
be limited to only cases of such Government officers whose Cadre Controlling
Authority is the Department of Personnel & Training, Government of India but
should be extended to officers of all Departments and Ministries of the rank of
Joint Secretary and above. We are recommending such a course of action since
the considered advice of the high‐level Committee of Secretaries in a
disciplinary matter should be available to the Minister‐in‐charge in cases
pertaining to all senior officers in different Departments/Ministries. Our
recommendation will also reinforce confidence among the senior
Government Servants that no motivated disagreement with the advice of the
UPSC can harm their legitimate service prospects unless the Committee of
Secretaries – the highest collegium of the Permanent Executive – considers
the disciplinary matter whenever the Department/Ministry wants to disagree
with advice of the UPSC.
119. In our view, the approach we have recommended would be fair to the
delinquent Government Servants under the Government of India. In the long
run, if the Government is perceived to be just and fair, the Government
Servants will have self‐esteem, which is vital for efficient performance of
public service. To elaborate, fairness in Government is essential even to ensure
that the vast powers of the modern state are not abused. “Fairness” has no set
form or procedure and Government should not be allergic to the appropriate
application of the above approach where the facts of a case warrant giving
such relief to a Government Servant facing an uncertain future because of the
pendency of Disciplinary Inquiry or investigation by the CBI/the Vigilance
Directorate/the ACB.
120. While we are concerned that delinquency on the part of Government
Servants should be dealt with effectively and quickly, we are also aware of the
danger of abuse of the process by Disciplinary Authorities to punish
subordinates who stand up against wrong action by the superiors. We may
argue that such cases of abuse of power by the Disciplinary Authority are
rather rare but, in our experience, cannot be completely ruled out. While
rendering the first stage advice, if the CVC considers or has reason to believe
that the proposal to initiate a Disciplinary Inquiry is totally baseless, he may
advise punitive action against the Disciplinary Authority. This would ensure
that there is responsible exercise of power by the Disciplinary Authority and
witch‐hunting of honest Government Servants would be prevented.
121. We understand the CVC is formulating a Standard Operating
Procedure(SOP) governing preliminary investigation by the Vigilance
Agencies which would not only simplify and expedite a Disciplinary Inquiry but
also make it objective, fair and just. The allegedly delinquent official in this
procedure will be given ample opportunity to peruse the documents being
relied upon against him as also to explain his point of view. This will also
ensure that no honest official is harassed, for extraneous reasons, by
baseless disciplinary action. We hope the proposed SOP will be brought into
force soon by the CVC.
122. Our terms of reference relate to Governments Servants working for the
Government of India. We have, however, deliberated also on matters relating
to officers of the All‐India Services serving in connection with the affairs of a
State and feel it necessary to make certain recommendations in respect of
them. In going into these matters, we have kept in view the objectives with
which the All‐India Services were established, the unique role of these Services
in the governance of the country and the high expectations from the officers of
these Services in matters of efficiency, fairness and probity. It has also to be
remembered that, among the three All‐India Services, the Indian
Administrative Service(IAS) and the Indian Police Service(IPS) have been
designed to hold posts at senior and crucial levels both in the Central
Government and in the State Governments. Officers of the IAS discharge the
responsibilities of crucial posts such as Collector and District Magistrates,
Secretaries to the Government and Heads of Departments, while IPS officers
do so at important positions like District Superintendents of Police, Zonal
Inspectors‐General of Police and Directors‐General of Intelligence/Police in the
States. At the Centre, officers of the IAS operate at senior and crucial levels
such as Joint Secretary, Additional Secretary and, of course, Secretary to the
Government of India, while officers of the IPS head the vital paramilitary forces
of the Central Government, apart from organizations like the Central Bureau of
Investigation, the Intelligence Bureau, the Research & Analysis Wing and
others. Owing to the close operational relations that these Services are
required to have with the higher political executive of the State and the Central
Governments, it would not be an exaggeration to say that, in the common
man’s perception, IAS/IPS officers are almost synonymous with Government.
123. It is in the background of the prevailing situation that we have felt the
need to deal with two trends clearly discernible in several states. One of these
is the tendency to browbeat members of the All‐India Services through
motivated action, including frequent transfers, transfers to posts which do not
normally warrant posting of an officer of his seniority, suspension and
initiation of Disciplinary Inquiries without adequate basis. Through such steps,
State Governments humiliate and harass several officers of these Services, in
effect warning others what can happen to them unless they, too, toe the line.
This does lead to several officers opting for the easy way‐out by turning
collaborators or by acquiescing in wrongful actions of the powers that be. That
this set of circumstances seriously sullies the image and standing of the All
India Services in the public eye can hardly be denied, leading also to the
consequence that the All‐India Services are no longer the ambition for a large
number of youngsters with brilliant academic records. It does not require a
very fertile imagination to conclude that this state of affairs significantly
impairs the capability of the Government to provide good governance.
124. While certain decisions of the Central Government in the recent years,
pertaining to suspension of All‐India Service officers by State Governments,
and the amended Rule, which mandates prior approval of the Central
Government for suspension of the Chief Secretary, the Director‐General of
Police and the Principal Chief Conservator of Forests of a State Government,
have introduced a measure of protection to the officers of the All‐India
Services, there is need to do much more because the large proportion of the
All‐India Services Officers serving in connection with affairs of a state feel quite
let down by the inability of the Central Government to protect their interests
effectively. Apart from constitutional factors, we are conscious also of the
limitations and constraints that are a necessary feature of the coalition era
politics that prevails in most parts of the country but compels us to flag this
important issue for intervention at some stage by the Government of India.
125. In this situation, one measure that could go a long way in boosting the
morale of members of the All‐India Services in the States and in protecting the
interests of upright officers would be the establishment in the States of
statutory Vigilance Commissions on the lines of the Central Vigilance
Commission. There are, undoubtedly, Vigilance Commissions and Directorates
of Vigilance in many States but nowhere do they enjoy the pre‐eminence and
decisive role that are a hallmark of the Central Vigilance Commission, which
became a statutory body in 2003. The Government of India would be well
advised to prevail upon all the States in this regard because we feel that the
establishment of statutory State Vigilance Commissions by Acts of State
Legislatures will impart considerable objectivity and prevent malafide and
whimsical actions against officers of the State Government/officers of the All‐
India Services serving in connection with affairs of a State.
126. The other trend that has attracted our attention is the increasing
number of instances where members of the All‐India Services are found in
possession of mind‐boggling sums of money and of equally mind‐boggling
assets totally disproportionate to their known sources of income. While this
unfortunate situation is commonly perceived to be the result of an unholy
alliance between the unscrupulous and powerful political elements in the
State Government on the one hand and, on the other, of similar elements
within the All‐India Services, it would not be untrue to aver that the delays
that occur in bringing such delinquent officials to justice contribute
significantly to a somewhat alarming state of affairs.
127. As mentioned above, owing to the close operational link between some
of the members of the All‐India Services and some high ranking political
functionaries in the State, the above situation leads the common man to
conclude that the entire Government is corrupt and does not have public good
as its goal or priority. While we are here concerned more with the undesirable
consequences of this situation for the All‐India Services, the continued
prevalence of this perception is not at all conducive to promoting respect for
Government, thus undermining the very fabric of State.
128. Adding to the sad scenario is the unfortunate experience that not all
State Governments act promptly and decisively in instances of obvious and
gross corruption, including abuse and misuse of authority by members of the
All‐India Services serving in connection with affairs of a State. Thus, an
impression gains ground that the corrupt elements in the All‐India Services are
able to invariably have their way and nothing really can be done to penalize
them. Under these circumstances, there is strong need for the Central
Government – that is where the buck does and has to stop – to find ways of
stepping in and taking action against delinquent officers of the All‐India
Services serving in connection with affairs of a State. Quite clearly, the existing
Rules do not provide for such a course in our federal set‐up. This is also
because the expectation has been that Governments of States would act with a
full sense of responsibility and in the public interest, instead of encouraging
the corrupt through acts of omission and commission. Therefore, the time has
come for putting in place wide‐ranging provisions – extraordinary as they may
be ‐ that empower the Central Government to step in and take action
warranted in the circumstances. While devising and putting in place the full
gamut of provisions required for dealing with the rather alarming situation in
several States would obviously take time, a beginning needs to be made to
provide for cases where a member of the All‐India Services serving in
connection with the affairs of a State is found, in the course of operations of
Central Government agencies like the Central Board of Direct Taxes, the
Central Board of Excise and Customs, the Directorate of Enforcement, the
Directorate of Revenue Intelligence, the Narcotics Control Bureau and others,
to be heavily on the wrong side of the law. In such cases, the Government of
India would be competent ‐ notwithstanding the current stipulation in the
Rules that in such a case only the State Government has the legal authority ‐ to
initiate Disciplinary Inquiry on the basis of the report and findings of one or
more of the aforesaid Central agencies. This would require an appropriate
amendment in the All‐India Services (Discipline and Appeal) Rules, 1969. While
strongly commending such a course, we would like also to emphasise that the
current situation in this regard warrants urgent action.
129. We now propose to deal with a suitable Monitoring Agency to ensure
that our recommendation regarding time limit of disposal of different
categories of Disciplinary Inquiries is adhered to. We have noted that at
present no consolidated database of pending Disciplinary Inquiries exists in
the Central Government and no apex Monitoring Agency is in place to review
the progress of disposal of Disciplinary Inquiries in all Departments/Ministries.
130. We propose that for all minor and major penalty Disciplinary Inquiries
against senior Government Servants, the monitoring of the Disciplinary cases
would be entrusted to a Monitoring Cell to be set up in the Department of
Personnel and Training, Government of India. If the Disciplinary Authority
exceeds the maximum time recommended by us for disposal of a Disciplinary
Inquiry, the Secretary/Additional Secretary of the Department of Personnel
and Training, with the help of the Monitoring Cell, will identify such defaulters
and write demi‐officially to his counterpart in the Department/Ministry of
Government of India under which the defaulting Disciplinary Authority is
working. To save time, a copy of the D.O. letter of the Secretary/Additional
Secretary of the Department of Personnel and Training, would be directly
endorsed to the Disciplinary Authority. If within 90 days of the receipt of the
D.O. letter, the Disciplinary Inquiry is not disposed of finally, the Secretary of
the Department of Personnel and Training will bring the facts of the case to the
notice of the Cabinet Secretary for appropriate action against the defaulting
official/the Disciplinary Authority.
131. We also recommend that for each Department/Ministry, there could be
a Monitoring Cell to review the progress of all Disciplinary Inquiries. The
Secretary of the Department/Ministry may take such steps as deemed fit to
galvanise the Disciplinary Authorities under him to dispose of the Disciplinary
Inquiries within the time frame recommended by us.
132. We recommend that a separate column may be incorporated in the
Annual Performance Appraisal Report(APAR) regarding the number of
inquiries handled by an officer reported upon and the number of Inquiries in
which an officer has acted as the Presenting Officer. In the self‐assessment
report, the officers reported upon will indicate his performance – both in terms
of quantity and quality – in disposal of Disciplinary Inquiry cases or his role as a
Presenting Officer in such cases. The Reporting and Reviewing Officers will
comment on this particular aspect of self‐appraisal.
133(a)The CVC has issued detailed guidelines in its letter dated 02 January
2009 for timely disposal of Disciplinary Inquiries. The guidelines contain clear
instructions regarding maximum time to be taken by different officials at
different stages of a Disciplinary Inquiry. We quote the following extract from
the letter of the CVC :
“In normal circumstances the conclusion of Disciplinary Inquiries
should be received within a time frame of two years ‐ from the date of
inception to the stage of issue of final orders. Undue delay in
completion of Disciplinary Proceedings would reflect adversely against
Disciplinary Authorities”
(b) In view of our recommendations regarding the maximum time to be
taken for minor and major penalty Disciplinary Inquiry, the CVC may
like to issue revised guidelines.
134. We have noted that the preponderant tendency among Disciplinary
Authorities has been to adopt a safe course and initiate major penalty
Disciplinary Inquiries irrespective of the facts of a case/nature of misconduct.
This approach is born out of the desire to be not accused of being soft and
partial towards the delinquent Government Servant. There have been many
instances where after long‐drawn‐out major penalty Disciplinary Inquiries, the
Disciplinary Authority actually awards one of the minor penalties. This means
that a lot of time, often running into years, has been spent in doing something
that could have been completed in a few months, if a minor penalty Inquiry
had been initiated right at the beginning. The award of penalties to a
delinquent Government Servant is intended not just to have retribution visit
him for a misconduct; its purpose is also to make the Government Servant act
and behave better and more responsibly in future. A long‐drawn out major
penalty Inquiry where, at the end, a minor penalty is imposed, does not serve
the desired purpose.
135(a)We have noted that even after approval of the Disciplinary Authority to
initiate a Disciplinary Inquiry, a lot of time is taken by the Department/Ministry
to frame the Articles of Charge against a delinquent Government Servant.
(b) We recommend that to eliminate delays in framing the Articles of
Charge, the official file submitted to the Disciplinary Authority to initiate a
Departmental Inquiry must have a copy of the draft Articles of Charge along
with the imputations in support and a list of witnesses and documents. Such
action before approval of the Disciplinary Authority is obtained to initiate a
Departmental Inquiry against a delinquent Government Servant, would
ensure timely framing and service of the Articles of Charge. We also
recommend that when a case is sent to the CVC for its first stage advice, the
Articles of Charge, complete in all respects, must be submitted to the CVC.
136. We have noted that a large number of cases pertaining to Government
Servants of Group A and Group B categories under the Central Government
and also of officers of the All‐India Services are pending with the respective
Disciplinary Authorities for taking a decision on the Reports of Inquiry prior to
reference to the CVC and the UPSC for advice and, in some cases, even after
advice of the CVC and the UPSC has been received. We may submit that
focussed attention needs to be bestowed on passing appropriate orders on the
pending Reports of Inquiry. We suggest that the Disciplinary Authorities may
decide all such pending Disciplinary Inquiry cases by 31 December 2010 at the
137. At present, there are a few Handbooks for Inquiry Officers and
Disciplinary Authorities. These Handbooks are not official publications but
have been written by different authors with knowledge of Service Law. In our
view, most of these Handbooks need to be updated. We recommend that the
Institute of Secretariat Training and Management(ISTM) under the
Department of Personnel and Training, Government of India will bring out an
updated Handbook incorporating the latest Service Laws, the statutory
notifications and the Executive Instructions. The need for updating the
Handbooks is felt because the latest case laws and instructions are often not
included in them. To give an example, most of the Handbooks stipulate that if a
Government Servant has submitted a false certificate of educational
qualification, or a false caste certificate, and the matter comes to notice, he
will be subjected to a major penalty Disciplinary Inquiry as envisaged in the
Service Rules. We have noted that as per the judgement of the Supreme Court
in R. Viswanath Pillai versus State of Kerala (AIR 2004 SC 1469) Disciplinary
Inquiry in such a case is not necessary and some of the Handbooks are giving
misleading legal advice in this regard. We have noted that in the above case of
R.Viswanath Pillai(Supra), an IPS officer who had put in 27 years of service
was dismissed from service as the Scrutiny Committee appointed by the
Government of Kerala pursuant to the judgement of the Supreme Court in
Kumari Madhuri Patil versus Additional Commissioner(AIR 1995 SC 95) held
that at the time of entry into the State Police Service in 1977, R. Viswanath
Pillai had submitted a false caste certificate that he belonged to the Scheduled
Caste. Pillai was dismissed from service on the basis of the findings of the
Scrutiny Committee set up by the Government of Kerala before whom he had
full opportunity to disprove that his caste certificate was a false one. In R.
Viswanath Pillai’s case(Supra) the Court held that no Departmental Inquiry
under the All‐India Services(Discipline and Appeal) Rules was required before
Pillai’s dismissal from service and the Court upheld the order of dismissal
even though he had put in 27 years of service.
138. By way of an epilogue, we may point out that a Government Servant in
India has important constitutional protection. The core concept of such
protection is fairness in action or fair treatment of a Government Servant.
Neither the President nor the Governor can pass any whimsical or arbitrary
order against a Government Servant because of such protection. A
Government Servant duly appointed to the post or a service in a permanent
capacity has the requisite stability in service and cannot be dismissed or
removed or reduced in rank arbitrarily because of protection under Article
311(2) of the Constitution. Certain other statutory rules also give Government
Servants adequate protection in terms of salary and other conditions of
service. The Courts will not interfere, however, if the Government imposes a
suitable penalty on a Government Servant by following the procedure laid
down in the relevant Service Rules. The Supreme Court held in Tata Cellular
versus Union of India (AIR 1996 SC 11) that the Administrative Tribunals, the
High Courts and the Supreme Court are not the Appellate Authority against the
decision of the Competent Authority in Government who has imposed a
suitable penalty on a delinquent Government Servant. The Tribunals and the
Courts can, however, subject the order of the Competent Authority in
Government to Judicial Review on grounds only of illegality, procedural
impropriety and irrationality within the meaning of the Wednesbury
principle of unreasonableness. They can also subject an order of the
Competent Authority to Judicial Review on ground of proportionality but they
cannot substitute their own opinion in the matter of penalty imposed by the
Competent Authority, as such a step would be an encroachment of the
Judiciary on the powers of the Executive. But if a Competent Authority decides,
in bonafide exercise of power, to penalize a Government Servant in a
Disciplinary Inquiry, Government has the full plentiude of power, as Public
Policy mandates that a delinquent Government Servant must suffer the
consequences of his delinquency. The Supreme Court have even held in
P.Balakotiah versus Union of India(AIR 1958 SC 232) that when a Competent
Authority in Government passes an order which is within its competence, the
order cannot be faulted merely because it is passed by him under a wrong
provision of the Rules if it can be shown to be within its power under any other
Rule. In other words, the validity of an order of the Competent Authority in
Government has to be judged on its contents and its substance and not on its
139. The tragedy with the public service in India, of late, has been that in the
absence of periodical crack‐down on corruption by resort to Draconian
measures, the Government Servants do nothing without a bribe; a still bigger
tragedy would be, however, if, after such crack‐down, they simply do nothing
and play safe. The challenge to practitioners of public administration in the
country at the higher levels is to provide a sense of confidence to members of
the public service that bona fide acts of theirs, including acts of omission and
commission in standing upto undue pressure, would not entail unsavoury
consequences for them; at the same time, to convey that delinquent acts of
omission and commission sans bona fide would result in prompt and suitable
punishment. It is our hope that some of our recommendations will help
achieve this objective.
140. We were appointed to suggest measures for expeditious disposal of
Disciplinary/Vigilance Inquiries. In view of the urgency to submit our
recommendations/Report, we have worked hard to adhere to the time limit
for submission of our Report. 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 self142
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.
DATE : 14/07/2010
1. Constitution of the Committee of Experts and its composition.
(Para 1, 3)
2. A brief historical perspective of Disciplinary Inquiries before and after
commencement of the Constitution.
(Para 6,7,8,12,13,14,15,16,17,18,19,20,21, 22, 23)
3. Report of a Survey conducted by the Indian Institute of Public
Administration, New Delhi about periods of delay in disposal of Disciplinary
(Para 10)
4. Article 311 of the Constitution and the 15th and the 42nd Amendments
(Para 24, 25, 26)
5. Scope and ambit of ‘reasonable opportunity’ in Article 311(2) of the
(Para 27, 28, 29, 30)
6. The Departmental Inquiries (Enforcement of Attendance of Witnesses
and Production of Documents) Act, 1972.
(Para 31)
7. Procedure of Disciplinary Inquiries.
(Para 32, 33, 35)
8. Panel of names of Inquiry Officers/Presenting Officers and fees to be
paid to them.
(Para 34, 37, 39, 40, 41, 42, 43)
9. Payment to witnesses in Departmental Inquiries.
(Para 38)
10. Limit on number of cases of Disciplinary Inquiries by an Inquiry
Officer/Presenting Officer.
(Para 44)
11. Procedure for minor penalty Disciplinary Inquiries.
(Para 45)
12. Time‐limit for completion of minor penalty Disciplinary Inquiries.
(Para 46)
13. Time‐limit for completion of major penalty Disciplinary Inquiries.
(Para 47)
14. Stages at which matters pertaining to a Disciplinary Inquiry have to be
submitted to the Minister‐in‐charge as at present.
(Para 49)
15. Proposal to dispense with approval of the Minister‐in‐charge in certain
stages of Disciplinary Inquiries.
(Para 50, 52)
16. Secretary to the Government of India in the Department/Ministry to be
the Appointing Authority for officers including officers of the All‐India Services.
(Para 52)
17. Stages at which the Central Vigilance Commission has to be consulted in
case of Disciplinary Inquiries and dispensing with the second stage advice of
the Central Vigilance Commission.
(Para 53, 54)
18. Prior consultation with the UPSC under Article 320(3)(c) of the
(Para 59, 60)
19. Submission of case records relating to Disciplinary Inquiries to the UPSC
after full compliance of items in the “checklist”.
(Para 61, 62)
20. Proposed re‐organisation of the Vigilance Organisations in
(Para 63)
21. Plea‐bargain in major penalty Disciplinary Inquiries.
(Para 64, 65, 66, 67)
22. Retention of the existing major penalty of compulsory retirement from
(Para 68, 69)
23. Existing minor and major penalties under different Service Rules.
(Para 70)
24. Cases where termination of service will not be considered as a penalty.
(Para 71)
25. Observations on some of the minor and major penalties under the
Service Rules.
(Para 72, 74, 75, 76, 77, 78, 79)
26. Proposal for minor penalties to include a cut in pension/gratuity in
appropriate cases.
(Para 80, 81, 82, 83)
27. Period of currency of the minor penalty of censure.
(Para 84)
28. Cases where imposition of a major penalty on a Government Servant to
be considered as a disqualification for employment under the Government of
India/State Governments.
(Para 85)
29. Proposal to amend Article 311 of the Constitution to dismiss a
Government Servant from service on charges of corrupt practice as defined in
the Prevention of Corruption Act 1988.
(Para 86, 87, 88, 89, 90, 91, 92, 93, 94, 95)
30. Reasons why the proposed amendment to Article 311 would be intravires.
(Para 96)
31. Dispensing with Disciplinary Inquiry before a major penalty is imposed
not a new concept in the Constitution.
(Para 98, 99)
32. Grant of compassionate monthly allowance to a dismissed Government
(Para 102)
33. Proposal for amendment to Section 19 of the Prevention of Corruption
Act, 1988.
(Para 104)
34. Proposal for amendment to Section 197 of the Code of Criminal
Procedure 1973.
(Para 105)
35. Proposal to accord sanction for prosecution in cases pending for such
sanction by a specified deadline.
(Para 108)
36. Proposal for expeditious disposal of pending Disciplinary Inquiries
against officers of the All‐India Services serving in connection with the affairs of
a State.
(Para 109)
37. Proposal to give relief to Government Servants in case of long pendency
of Criminal Cases/Disciplinary Inquiries.
(Para 110, 111, 112, 113, 114, 115)
38. Proposal for expeditious decision in cases where Disciplinary Inquiries
have been under contemplation.
(Para 116)
39. Proposal for high level Inquiry Officers in cases of fast‐track Disciplinary
Inquiries against senior Government Servants.
(Para 117)
40. Proposal for Committee of Secretaries to review cases of disagreement
with the UPSC in disciplinary matters.
(Para 118, 119)
41. Abuse of power by Disciplinary Authorities.
(Para 120, 121)
42. Proposal to set up Statutory Vigilance Commissions in all States of the
Indian Union.
(Para 125)
43. Proposal to take expeditious disciplinary action in cases of officers of the
All‐India Services serving in connection with the affairs of a State following
searches and seizures by Central Agencies and registration of cases against
(Para 126, 127, 128)
44. Monitoring agencies for Disciplinary Inquiries.
(Para 129, 130, 131)
45. Proposal for modification of the format of Annual Performance of
Appraisal Report.
(Para 132)
46. Revised guidelines to be issued by the Central Vigiliance Commission for
Disciplinary Inquiries.
(Para 133)
47. Proposal for minor penalty Disciplinary Inquiries to be initiated in
suitable cases.
(Para 134)
48. Proposal for eliminating delay in service of Articles of Charge in
Disciplinary Inquiries.
(Para 136)
49. Proposal for more expeditious disposal of pending cases of Disciplinary
Inquiries by a specified deadline.
(Para 136)
50. Need for updating Handbooks for Inquiry Officers and Disciplinary
(Para 137)
51. Cases where a decision of the competent Authority could be the subject
of judicial review.
(Para 138)
52. Need for fairness and justice in treatment of Government Servants.
(Para 139, 140)