Hota Committtee Report Pages 50 to 99

50. We submit that, in the modern setting, where, at the highest level, the
Political Executive is increasingly concerning itself with matters of policy,
45
implementation of the policy and the relevant programmes ‐ and the recently
introduced scheme of Results Framework Document (RFD) and allied issues ‐
perhaps a time has come for the Minister‐in‐charge as the Disciplinary
Authority to be spared the avoidable burden of routine matters such as
Disciplinary Inquiries. Adoption of our suggestion in this regard would also
eliminate the delay inevitable in burdening the Minister‐in‐charge in a
Disciplinary Inquiry. Elsewhere in this Report, we have recommended that the
Minister‐in‐charge should be the Disciplinary Authority in case of officers of the
level of Additional Secretary and Secretary to Government of India and officers
of equivalent rank apart from continuing to act as the Appellate Authority for
all other Presidential appointees.
51(a) At present, the CCS(CCA) Rules and the All‐India Services Rules provide
that for all Group A Officers and some Group B officers under the Central
Government and for officers of the All‐India Services, the President is the
46
Appointing Authority. The Rules also provide that the President may, by
general or special order, and subject to such conditions as he may specify,
delegate to any other Authority the power to make such appointment. The
aforesaid power of the President, as the Appointing Authority, has been
delegated to the Minister‐in‐charge. The power of the President as the
Disciplinary Authority has also been delegated to the Minister‐in‐charge.
(b) In so far as Group B Officers of the Central Government are concerned,
the President is the Appointing and the Disciplinary Authority in respect of
certain senior posts in the Central Secretariat Service, the Central Secretariat
Stenographic Service and the Central Secretariat Official Language Service. In
respect of other Group B Officers under the Central Government, the President
is neither the Appointing nor the Disciplinary Authority. For officers of Group B
in the Central Government, in respect of whom the President is the Appointing
47
and the Disciplinary Authority, the powers have been already delegated to the
Minister‐in‐charge.
(c) Under the existing delegation of powers, a Disciplinary Authority under
the relevant Service Rules, who is competent to impose any one of the minor
penalties on a Government Servant may also initiate a major penalty
Disciplinary Inquiry against such Government Servant for imposition of any of
the major penalties, including dismissal or removal from service or reduction in
rank.
(d) The stipulation in Article 311(1) of the Constitution is that a person,
who is holding a civil post or is a member of a Civil Service of the Union or a
State or a Member of the All‐India Services, cannot be dismissed or removed
from service by an Authority subordinate to that by which he was appointed.
Therefore, in cases of officers of the Group A and specified Group B categories
in the Central Government, where the President is the Appointing Authority, if
48
the major penalty of dismissal or removal from service is to be imposed, the
case has to be submitted to the Minister‐in‐charge, who has the delegated
powers of the President.
52. In view of our suggestion that the Political Executive at the highest level
of Minister‐in‐charge should no longer be burdened with routine matters such
as Disciplinary Inquiries, we make the following suggestions for consideration :
(i) The Minister‐in‐charge shall exercise the delegated powers of the
President in regard to Appointing Authority and Disciplinary Authority of an
Additional Secretary and a Secretary to the Government of India.
(ii) All matters relating to powers of the Appointing Authority and powers of
the Disciplinary Authority in respect of all Group A and Group B Government
servants under the Central Government, including the members of the All‐India
Services, may be delegated to the Secretary of the Department/Ministry by the
President. In respect of members of the All‐India Service known as the Indian
49
Administrative Service, the Secretary to Government of India in the
Department of Personnel & Training would be the Appointing Authority.
Similarly, in respect of members of the All‐India Service known as the Indian
Police Service, the Secretary to the Government of India in the Ministry of
Home Affairs would be the Appointing Authority and for members of the All‐
India Service known as the Indian Forest Service, the Secretary to the
Government of India in the Ministry of Environment and Forests would be the
Appointing Authority. All matters relating to Powers of the
Appellate/Disciplinary Authority in respect of Group A and Group B
Government Servants under the Central Government including members of
the All‐India Services may be delegated to the Secretary to the Government of
India of the Department/Ministry by the President. Where, however, the
disciplinary action relates to imposition of a major penalty, such
Appellate/Disciplinary Authorities shall exercise the powers with the
50
concurrence of the Secretary to the Government of India in the Department of
Personnel and Training. In the event of disagreement between the Secretary,
Department of Personnel and Training and the Secretary of the Administrative
Department/Ministry, the former shall co‐opt one more Secretary to the
Government of India for the Committee of three Secretaries to take a final
decision in the matter.
(iii) The powers of an Appellate Authority in relation to penalties imposed by
a Secretary to the Government of India in a Department/Ministry should
continue to remain with the Minister‐in‐charge, who will continue to exercise
the delegated powers of the President in this regard.
(iv) We recommend no change in respect of the Authority at present
competent to exercise the powers of revision of an order of penalty on a
Government Servant of Group A and Group B categories under the Central
Government and officers of the All‐India Services. We also recommend no
51
change of the Authority competent to review the order of penalty already
imposed at any stage subsequent to imposition of a penalty.
(v) An amendment of the Service Rules to provide for a new Appointing
Authority would take effect prospectively.
(vi) The Service Rules can be, however, amended, not necessarily
prospectively, to provide for any change of a Disciplinary Authority of a
Government Servant who is employed in civil capacities under the Union or a
State.
53. We have noted that a Disciplinary Inquiry involving lack of integrity or
corrupt practice on the part of a delinquent Government Servant is sent to the
CVC at two stages, viz., for the first stage advice as to whether evidence
collected during the preliminary inquiry merits either a major or a minor
penalty Disciplinary Inquiry. After conclusion of the major or minor penalty
Disciplinary Inquiry, the case records are again referred to the CVC for the
52
second stage advice as to the suitable penalty to be imposed on the
delinquent Government Servant on the basis of charges held to be partly or
fully proved.
54. We recommend that the CVC need be consulted for the first stage
advice only and need not be consulted for the second stage advice. Those
who do not want any modification in the present arrangement of a two‐stage
advice by the CVC argue that because of reference to the CVC at two stages as
at present, the CVC has been able to effectively exercise control over corrupt
practices by the Central Government Servants including officers of the All India
Services working on deputation with the Government of India and also in
connection with affairs of a state.
55. We have noted that a copy of the second stage advice of the CVC has to
be furnished to the delinquent Government Servant in view of the judgement
of the Supreme Court in State Bank of India versus D.C.Aggarwal(AIR 1993 SC
53
1197). In other words, furnishing a copy of the second stage advice of the CVC
to the delinquent Government Servant is mandatory to enable a delinquent
Government Servant to get “reasonable opportunity” to be heard in respect of
the Articles of Charge.
56. Under the Service Rules, a copy of the advice of the UPSC, in a reference
made to it under Article 320(3)(c), has to be furnished to the delinquent
Government Servant as a requirement of “reasonable opportunity”.
57. There have been instances where the second stage advice of the CVC
has been at variance with the advice of the UPSC in case of the same
Disciplinary Inquiry. Such variation in the advice of the two Commissions viz.,
the CVC and the UPSC on the same Disciplinary Inquiry is often taken
advantage of by the delinquent Government Servant. The lawyers of the
delinquent Government Servant argue before Courts that there is no
unanimity of opinion between the UPSC and the CVC whether their client is
54
guilty or not and hence the client deserves exoneration in the Inquiry. Taking
an overall view of the matter, we feel that no great harm would be caused if
the second stage advice of the CVC is dispensed with while retaining the
present arrangement for the CVC’s first stage advice. As a matter of fact, after
the CVC has given the first stage advice that facts of a case justify a major
penalty Inquiry, the Inquiry proceeds with the Inquiry Officer examining
witnesses and documents and submitting his Report to the Disciplinary
Authority. If the charge of lack of integrity is proved, the UPSC invariably
advises either dismissal or removal from service and the Disciplinary
Authority also would not be able to impose a more lenient penalty if the
charge of lack of integrity or corrupt practice has been proved. Moreover,
even though the CVC is the highest Agency to monitor integrity of Central
Government servants and officers of the All India Services, it cannot be
denied that the primary responsibility to enforce honesty and integrity among
55
Government Servants is that of the Department/Ministry. Moreover, the
Vigilance Officer/Chief Vigilance Officer of the Department/Ministry, who
functions under the dual control of the Department/Ministry and the CVC, is
physically located in the Department/Ministry. He can be trusted to guide the
Disciplinary Authority in the matter of imposition of the appropriate major
penalty of dismissal or removal from service if the charge of lack of integrity or
corrupt practice is proved against a delinquent Government Servant.
Moreover, after the Notification dated 11 October 2000 of the Department of
Personnel and Training, Government of India making the penalty of dismissal
or removal from service mandatory in Disciplinary Inquiry involving lack of
integrity or corrupt practice, we are of the view that the second stage advice
of the CVC may not be necessary and need not be mandatory. However,
where the Disciplinary Authority chooses not to accept the findings of the
Inquiry Officer holding that all or any of the Articles of Charge against the
56
delinquent Government Servant have been proved, it may be prescribed that
the matter be referred to the CVC for the second stage advice with clearly
recorded reasons for such disagreement. Our expectation is that the number
of such cases would be relatively small. We do not recommend dispensing
with second stage advice of the CVC in cases of the Central Public Sector
Undertakings and the Nationalized Banks as in such cases reference to the
UPSC under Article 320(3)(c) is not a stipulated requirement. We have noted
that our recommendation in this regard is the same as that of an earlier
Committee appointed in the year 2000 by the Department of Personnel &
Training, Government of India.
58. We reiterate that the CVC needs to be consulted by the
Department/Ministry only for the first stage advice so that, right from the
beginning, a Disciplinary Inquiry gets its proper orientation either as a major
penalty or as a minor penalty Inquiry. And once the CVC decides at the first
57
stage advice for a major penalty Inquiry, if any worthwhile evidence adduced
during the Inquiry establishes the charge of lack of integrity or corrupt practice,
the delinquent Government Servant has to be dismissed or removed from
service by the Disciplinary Authority in view of the Notification dated 11
October 2000 of the Department of Personnel and Training, Government of
India referred to in this Report.
59. Elsewhere in this Report, we have recommended that prior consultation
with the UPSC under Article 320(3)(c) may be dispensed with in case of
imposition of any minor penalty on a Central Government Servant of Group A
and B and for officers of the All‐India Services(except for officers of the All‐
India Services serving in connection with affairs of a State where prior
consultation with the UPSC would continue to be necessary for imposition of a
minor penalty). We, however, reiterate that the UPSC must be consulted at
the appellate stage in case of imposition of minor penalties where prior
58
consultation with the UPSC has been dispensed with as per our
recommendation. In Tulsiram Patel versus Union of India (AIR 1985 SC 1416),
the Supreme Court have held that even in case of imposition of the major
penalty of dismissal or removal from service or reduction in rank, the
Competent Authority can impose the penalty without any inquiry on the
ground that it is not reasonably practicable to hold an Inquiry and the
aggrieved Government Servant can get adequate protection at the appellate
stage under the Service Rules, where the UPSC has to be consulted. In other
words, even the Supreme Court have not insisted upon prior consultation
with the UPSC under Article 320(3) (C) in specific circumstances of major
penalties.
60. The UPSC has rightly pointed out in its note to the Department of
Personnel and Training, Government of India that Article 320(3)(c) is not only
about the penalty to be imposed but is also about the confidence a honest
59
Government Servant has that to impose on him any penalty, however minor,
a Constitutional Authority such as the UPSC has to be first consulted. We see
the force of argument of the UPSC but we may observe that one has to look at
the present scenario where cases of advice in disciplinary matters under Article
320(3)(c) have increased manifold. At present, every year, the UPSC gets about
800 to 900 Disciplinary Inquiry cases for advice and in view of the very
thorough scrutiny the UPSC makes in each Disciplinary Case, it has become
difficult to get advice from the UPSC even in cases of minor penalty Disciplinary
Inquiries before at least a period of five to six months has elapsed from the
date of reference. Keeping in view the objective of ensuring that minor
penalties are awarded expeditiously to delinquent Government Servants and
also leaving the UPSC to have more time to concentrate on major penalty
disciplinary matters and render their advice in a shorter time‐frame than at
present, we reiterate our recommendation that in disciplinary matters relating
60
to minor penalties prior consultation with the UPSC may not be required under
Article 320(3)(c) of the Constitution except for officers of the All‐India Services
serving in connection with affairs of a state.
61. The UPSC has informed the Department of Personnel and Training,
Government of India that, at present, in as many as 40% cases of Disciplinary
Inquiries referred to the UPSC for advice under Article 320(3)(c) of the
Constitution, the case records are deficient in terms of the requisite
information wanted by the UPSC as per the “check list” circulated by it to all
Departments/ Ministries and also put on its website. If the case records do not
have the requisite information as per the “check list”, at present the UPSC
returns the records to the Department/Ministry for rectification of the
deficiencies. This causes avoidable delay in the Department/Ministry getting
timely advice from the UPSC.
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62. If the Departments/Ministries are serious about expeditious disposal of
Disciplinary Inquiries, they have to take care of such routine matters. We
recommend that before the case records in a Disciplinary Inquiry are sent to
the UPSC for advice under Article 320(3)(c) of the Constitution, the Joint
Secretary/Director/Deputy Secretary in charge of Establishment matters in
the concerned Department/Ministry must give a certificate in writing that the
case records are being sent to the UPSC for advice after complying with all
items in the standard “check list” by the Department/Ministry. If the certificate
of the Joint Secretary/Director/Deputy Secretary in the Department/Ministry is
found to be defective as all items in the standard “check list” have not been
complied with before furnishing the certificate and the certificate has been
issued in a slip‐shod manner, a minor penalty Disciplinary Inquiry shall be
initiated against the delinquent Joint Secretary/Director/Deputy Secretary of
the Department/Ministry. Such a stipulation is most likely to ensure the
62
correctness of the certificate of the Department/Ministry and will eliminate
unnecessary delay in getting advice of the UPSC.
63. The deficiencies pointed out above arises among other things, from the
lack of strong and effective vigilance divisions in the Departments/Ministries.
Currently, one of the Joint Secretaries in the Department/Ministry is
designated as the Chief Vigilance Officer who has to undertake vigilance
functions in addition to his official duties. This results in lack of proper followup
of vigilance‐related matters including preliminary inquiries, preparation of
proposals for seeking the first stage advice of the CVC, and other related
issues. In our view, Government may consider appointing full‐time CVOs in
Departments/Ministries. It may not be necessary to have full‐time CVOs in all
Departments/Ministries and there could be CVOs in charge of more than one
Department/Ministry with Vigilance Divisions headed by full‐time Deputy
Secretaries in the individual Departments/Ministries. We are of the view that
63
appointment of full‐time CVOs would ensure proper attention to vigilance
matters and improve the quality of proposals forwarded to the CVC/UPSC. This
would in turn enable the CVC/the UPSC to cut down significantly the time
taken to render their advice. Apart from improving the quality of proposals to
initiate disciplinary action against the delinquent Government Servants, the
full‐time CVOs will also enable better handling of complaints against the
Government Servants. It is significant to note that a very high percentage of
disciplinary cases originate from complaints of misuse/abuse of power and
corruption. Better handling and quick investigation of complaints will lead to
better detection of such improprieties and deterrent action against the erring
Government Servants.
64. We have received a suggestion that to reduce the pendency of the large
number of Disciplinary Inquiries, it would be expedient in the public interest to
introduce the concept of “plea bargaining” by delinquent Government
64
Servants. Under the proposed scheme of “plea bargaining”, such Government
Servants on whom Articles of Charge have been served, may be informed that
if he opts for presenting a plea in this regard and admits the Articles of Charge,
he would be given a comparatively lenient penalty. We clarify that if plea
bargain is accepted the Disciplinary Authority need not appoint an Inquiry
Officer to inquire into the charges.
65. “Plea bargaining” started in Criminal Courts in USA. Following the
recommendation of the Malimath Committee, the Government of India
accepted “plea bargaining” in criminal trials and in the year 2005 has amended
the Code of Criminal Procedure 1973 to introduce “plea bargaining” for
offences where the maximum punishment is imprisonment upto seven years
only. We could not have access to reliable data as to how “plea bargaining”
has worked in practice in criminal trials in India. It does not, however, appear
as if “plea bargaining” has resulted in drastic reduction of the huge backlog of
65
pending criminal cases in trial courts in the country. We are, however,
conscious that criminal cases pending in Courts of India are far too many and
the backlog of pendency of such cases in Courts is rather colossal.
Pendency/backlog in Disciplinary Inquiries may not be as heavy or colossal.
Taking an overall view of the matter, we recommend introduction of “plea
bargaining” provided in no case will it be made available to a delinquent
Government Servant charged with lack of integrity or corrupt practice. A
delinquent Government Servant facing charge of misconduct for lack of
integrity and corrupt practice, if held as proved, should be either removed or
dismissed from service as per the existing instructions and weeded out of the
system, where he has been as lethal as a cancerous growth. Removal of
corrupt Government Servants has also been recommended in State of
Rajasthan versus B.R.Meena(AIR 1997 SC 13), where the Supreme Court held
that the administrative machinery should be kept unsullied by removing
66
corrupt officials through appropriate proceedings under the law. We have also
mentioned elsewhere in this Report that as per the Notification of the
Department of Personnel & Training, Government of India of October, 2000, in
proven cases of lack of integrity or corrupt practice by a Government Servant,
the penalty must be either dismissal or removal from service.
66. “Plea bargaining” can be introduced in Disciplinary Inquiries except for
charges of lack of integrity or corrupt practice through appropriate Executive
Instructions and amendment of the Service Rules is not required to introduce
the scheme. Further, to eliminate any possibility of error of judgement in
matters of ‘plea bargaining’, the Disciplinary Authority may be suitably advised
by a Committee of senior officers of appropriate rank before a ‘plea‐bargain’
of a delinquent Government Servant is accepted by the Disciplinary Authority.
67. Under this arrangement of “plea bargaining”, a delinquent Government
Servant on whom Articles of Charge for major penalty Inquiry have been
67
served could be given the opportunity to admit the charges on the
understanding that if he admits the Articles of Charge, a penalty other than any
major penalty would be imposed on him. Certain other features of this system
of plea bargaining need to be spelt out as follows:
(a) The delinquent Government Servant would have to admit the charges
entirely, categorically and unconditionally, clarifying also that he cannot and
will not go back on this admission subsequently.
(b) All cases where a request for a plea bargain is received should be
examined by a panel of three officers constituted by the Head of Department
or the Secretary to the Government of India concerned. This mechanism seems
desirable in order that a single officer is not hesitant about dealing with a plea
bargain, apart from ruling out instances of alleged or actual collusion.
68. It was suggested to us that the penalty of compulsory retirement from
service on the basis of a major penalty Disciplinary Inquiry may be dispensed
68
with as a penalty and may be deleted from the list of major penalties in the
Service Rules. The argument in favour of this proposal is that a delinquent
Government Servant who is compulsorily retired as a measure of penalty, does
not feel the sting of the penalty as he is allowed to enjoy his monthly pension
and the admissible gratuity.
69. We agree that the major penalty of compulsory retirement from service,
as it exists at present in the Service Rules, may not be a stiff penalty in view of
the admissibility of full post‐retirement benefits. If the penalty were to be
suitably modified to include not only compulsory retirement but also, in
appropriate cases, forfeiture of gratuity and a cut in monthly pension subject
to a minimum of 10% and a maximum of 50%, the penalty will acquire a lot of
teeth. We, therefore, recommend that compulsory retirement as a major
penalty be retained in the existing list of major penalties with a cut in
pension and forfeiture of gratuity as recommended by us.
69
70. At present, the Service Rules provide for the following minor and major
penalties :
Minor Penalties
(i) Censure;
(ii) Withholding of his promotion;
(iii) Recovery from pay of the whole or part of any pecuniary loss caused by
him to the government by negligence or breach of orders.
(iii)(a) Reduction to a lower stage in the time‐scale of pay by one stage for a
period not exceeding three years, without cumulative effect and not adversely
affecting his pension.
(N.B.: The minor penalty at (iii)(a) was introduced by the Notification of the
Department of Personnel and Training dated 23 August 2004).
70
(iv) Withholding of increments of pay.
(NB: We suggest necessary modification in this minor penalty following the
recommendation of the Sixth Central Pay Commission for introduction of a pay
band with grade pay.)
Major Penalties
(v) Save as provided for in Clause (iii)(a) reduction to a lower stage in the
time‐scale of pay for a specified period, with further directions as to whether
or not the Government Servant will earn increments of pay during the period
of such reduction and whether, on the expiry of such period, the reduction will
or will not have the effect of postponing future increments of his pay;
(NB: This major penalty is also required to be modified suitably pursuant to
introduction of pay band with grade pay for a post).
(vi) Reduction to lower time‐scale of pay or grade, post or service which
shall ordinarily be a bar to the promotion of the Government Servant to the
time‐scale of pay, grade, post or service from which he has been reduced, with
71
or without further directions regarding conditions of restoration to the grade,
post or service from which the government servant was reduced and his
seniority and pay on such restoration to that grade, post or service.
(NB: The language of this major penalty will also undergo modification
pursuant to introduction of pay band and grade pay for a post after acceptance
of recommendations of the Sixth Central Pay Commission.
(vii) Compulsory retirement;
(NB: We have proposed retention of this major penalty with a minimum of 10%
and maximum of 50% cut in pension and admissible gratuity in appropriate
cases.)
(viii) Removal from service which shall not be a disqualification for future
employment under the Government;
(ix) Dismissal from service, which shall ordinarily be a disqualification for
future employment under the Government.
Provided that in every case in which the charge of possession of assets
disproportionate to known sources of income or the charge of acceptance
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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 shall be either removal or dismissal from service.
Provided further that in any exceptional case and for special reasons to
be recorded in writing, any other penalty may be imposed.
71. The Service Rules also provide that in the following category of cases,
termination of service will not be considered as a penalty :
(i) termination of service of a probationer in accordance with the Rules
governing probationers;
(ii) termination of service of a temporary government servant in accordance
with sub‐rule(1) of Rule 5 of the Central Civil Services(Temporary Service)
Rules 1965;
(iii) termination of service of a Government Servant, employed under an
agreement, in accordance with the terms of contract of such agreement.
73
72. We have observations to make on some of the minor penalties such as
(iii)(a) above introduced by a Notification on 23 August 2004, which is as
follows :
“reduction to a lower post or time‐scale or to a lower stage in timescale
of pay by one stage for a period not exceeding three years
without cumulative effect and not affecting his pension.”
73. The Constitution provides in Article 311 that reduction in rank is one of
the three penalties – the two other being removal or dismissal from service ‐
which can be imposed only after an Inquiry as envisaged under Article 311(2).
In the relevant Service Rules, dismissal or removal from service and reduction
in rank are called major penalties.
74. In view of the clear constitutional stipulation as aforesaid, the minor
penalty at (iii)(a) introduced in August 2004, may not be able to stand judicial
scrutiny as a minor penalty. It is relevant to mention that reduction in rank can
74
occur even if a government servant is reduced by one lower stage in the timescale
of pay for a period not exceeding three years as in the minor penalty at
(iii)(a) above. In the judgement of the Supreme Court in Debesh Chandra Das
versus Union of India(AIR 1970 SC 77), Das, an ICS officer, who was a Secretary
to the Government of India was repatriated to his state cadre of Assam. As
Secretary to the Government, Das was getting a salary of Rs.4000 p.m. On
reversion to the State of Assam, he got a Chief Secretary’s pay of Rs.3500 p.m.
The Supreme Court held that repatriation of Das to his cadre where he got a
pay of Rs.3500 p.m., meant that Das was reduced in rank just because he lost
an amount of Rs.500 p.m. as pay even though he was getting the maximum
pay of Rs.3500 p.m. admissible to the Chief Secretary of the State of Assam,
the highest ranking civil servant in the State.
75. In view of the ticklish legal implication of a minor penalty as in (iii)(a)
above, Government may like to consider and decide whether the aforesaid
75
penalty can be retained as a minor penalty. In our opinion, (iii)(a) above cannot
be retained as a minor penalty as it has the attributes of the major penalty of
reduction in rank.
76. “Withholding of his promotion” is one of the minor penalties in the
Service Rules. In our experience, it is very seldom imposed on delinquent
Government Servants. It is to be noted that a Government Servant, however
senior he may be in terms of length of service, has no vested right to hold a
promotion post. He has only a right to be considered for promotion in a fair
manner. It is our view that periodic opportunities for promotion to higher
posts is a powerful incentive for better performance by any Government
Servant. If this valuable right is denied to an eligible Government Servant, such
denial will be hit by Article 16 of the Constitution, which guarantees equality
of opportunity in employment under the State.
76
77. At present, the penalty of withholding promotion – which is a minor
penalty – does not specify whether the penalty can be imposed even when the
Government Servant is not within the zone of consideration for promotion to
the higher post. The Government of India has not yet issued guidelines how
this minor penalty, if imposed, will operate in practice. Taking an overall view
of the matter, we recommend that the minor penalty of withholding of
promotion can be imposed at any stage of the delinquent Government
Servant’s career. It will, however, take effect from the date the Government
Servant next below to the delinquent Government Servant in seniority is
promoted on regular basis to the higher post. The Departmental Promotion
Committee/Selection Committee, which considers the service records of
eligible officers to decide regarding suitability of promotion, will consider the
records of the delinquent Government Servant, whose promotion has been
withheld as a minor penalty and keep his assessment regarding suitability for
77
promotion in a “Sealed Cover”. This “Sealed Cover” will be opened on expiry
of the period of penalty. If the officer’s assessment in the “Sealed Cover” is
favourable, he will be promoted to the higher post without loss of inter‐se
seniority; but he will not get the pay of the promotion post during the period
his name was in the “Sealed Cover”. In other words, the delinquent
Government Servant will get the higher pay of the promotion post
prospectively from the date he is promoted after the “Sealed Cover” is opened
and his assessment by the duly constituted Departmental Promotion
Committee or the Selection Committee is found to be favourable.
78. As the penalty of withholding of his promotion for a long period is likely
to demotivate an officer in the performance of his duties with dedication and
sincerity, we recommend that, in suitable cases, the minor penalty of
withholding of promotion can be imposed for a maximum period of four
years.
78
79. A Government Servant who has been vested with the penalty of
withholding of his promotion will not also be eligible for ad hoc or officiating
promotion.
80. At present, under the Service Rules read with the relevant Pension Rules,
a minor penalty, if imposed while in service, cannot affect the monthly
pension or gratuity of the delinquent Government Servant. Under the
Pension Rules, a cut in pension, subject to payment of minimum pension or
forfeiture of gratuity in full or in part, is permissible if a Government Servant is
held guilty of “grave misconduct” and the President authorizes a cut in
pension or gratuity. By definition, a minor penalty Disciplinary Inquiry cannot
be initiated for a grave misconduct as grave misconduct entails a major penalty
Disciplinary Inquiry.
81. We recommend that a minor penalty Disciplinary Inquiry, if not
concluded before the Government Servant retires on superannuation, would
79
be deemed to continue as a minor penalty proceeding even after retirement
of the delinquent Government Servant from service on superannuation with
the stipulation that in such deemed proceedings, not more than 20 per cent
cut can be made in monthly pension and not more than 20 per cent forfeiture
can be made in the admissible gratuity. Even though the minor penalty
recommended by us would affect monthly pension/admissible gratuity, prior
approval of the President should not be necessary for imposition of such a
minor penalty. We have recommended such a measure because, when a
delinquent Government Servant is close to the age of superannuation, the
Disciplinary Authority realises that no minor penalty except the minor penalty
of “Censure” can be imposed as any other minor penalty would have an
adverse effect on the pension of the delinquent Government Servant.
82. In other words, the underlying purpose of our recommendation is that
the Pension Rules should not stand in the way if the delinquent Government
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Servant, while in service, committed an act of misconduct which deserved a
stiff minor penalty but which could not be imposed on him as it would
adversely affect his pension after retirement from service.
83. We hope that the amendment would help in early disposal of cases
where a Disciplinary Authority is feeling hamstrung by the inadequacy of
awarding censure as a minor penalty and the non‐availability of any other
minor penalty that the delinquent Government Servant deserves based on the
facts of the case. Besides, our proposal should also act as a deterrent against
any officer becoming reckless close to the time of his retirement from service.
84. The Department of Personnel & Training, Government of India has not
issued any instructions as to the period of currency of the minor penalty of
censure, the most lenient of minor penalties provided under the Service Rules.
At present, it is left to the Departmental Promotion Committee/Selection
Committee to decide whether this minor penalty of censure would be taken
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into account while recommending promotion of an eligible officer in the feeder
grade. In most of the cases, the Departmental Promotion Committee/the
Selection Committee ignores the penalty of censure if the overall assessment
of record of service of an eligible officer can justify recommendation for
promotion. We feel that while such flexibility has its own advantages, there is
need for uniformity and consistency in dealing with the effect of censure on
promotion of the officers to the higher grade. Government may consider
stipulating in the Service Rules the period of currency of the penalty of
censure. We recommend that the penalty of censure may have a currency of
one year only from the date of imposition.
85(a) We have recommended that major penalties of dismissal, removal from
service, compulsory retirement and reduction in rank would act as a
disqualification for delinquent Government Servants for further employment
under either the Government of India or Government of a State. If our
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recommendation is accepted, no useful purpose would be served by retaining
removal from service as one of the major penalties which, under the existing
Service Rules, is not a disqualification for further employment under the
Government. As a matter of fact, removal from service of a Government
Servant is usually for grave misconduct including corrupt practice and lack of
integrity. We are of the view that a delinquent Government Servant, who has
been removed from service for such grave misconduct, should not be
employed under either the Government of India or Government of a State as a
matter of public policy. We feel that if delinquent Government Servants are
invariably dismissed from service for grave misconduct including corrupt
practice and lack of integrity, it will send the right message to the rank and file
of Government Servants holding civil posts. In view of the aforesaid, we
recommend that removal from service may be deleted from the list of major
penalties under the Service Rules.
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(b) Article 311(1) stipulates that removal from service is one of the penalties
for which a delinquent Government Servant would face an Inquiry as envisaged
in Article 311(2) of the Constitution. The Courts have held that compulsory
retirement from service as a penalty is synonymous with the penalty of
removal from service. Therefore, the stipulation in Article 311(1) relating to
removal from service would not be redundant as it would come into
operation if the penalty of compulsory retirement is imposed on a delinquent
Government Servant. But retaining removal from service as a major penalty
under the Service Rules would perhaps serve no useful purpose as all Service
Rules both under the Government of India or under almost all State
Governments provide for compulsory retirement from service as a major
penalty.
86. We have noted that in spite of stiff penalties under different Service
Rules, including removal or dismissal from service for grave misconduct
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involving lack of integrity or corrupt practice, the common perception is that
corruption among Government Servants has been steadily growing. In the
Corruption Perception Index published by the Transparency International,
India is adversely placed, which, sadly, is not consistent with its aspirations to
become a super‐economic power. The situation is rather grim as, in recent
years, a number of officers of the All‐India Services, i.e. the Indian
Administrative Service, the Indian Police Service and the Indian Forest Service
have been either facing trial or have been convicted for corrupt practice.
Though different Agencies such as the Central Bureau of Investigation(CBI), the
Vigilance Directorates and the Anti‐Corruption Bureaux(ACBs) have been trying
their best to check corruption, the effect has not been very remarkable. It is
common experience that criminal trials of corrupt Government Servants take
such a long time that when they are convicted and sentenced, the impact of
such conviction and sentence is either lost or dissipated. Moreover, often the
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corrupt Government Servant goes on appeal to higher courts, which take their
own time to dispose of the matter. The net result is growing cynicism in the
country that for a corrupt government servant, corruption is a low‐risk
venture.
87. At present, there is no legal bar to start a major penalty Disciplinary
Inquiry against a delinquent Government Servant facing prosecution under the
Prevention of Corruption Act 1988. We have noted that very often the
delinquent Government Servant takes the plea before the court that because
of the simultaneous Disciplinary Inquiry against him, he is prejudiced in his
defence in the criminal trial as the charges in the Disciplinary Inquiry are based
on the same set of facts.
88. In Captain M. Paul Antony versus Bharat Gold Mines (AIR 1999 SC
1416) the Supreme Court have laid down the following principles in regard to a
Disciplinary Inquiry when a criminal trial is pending on the same charges :
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(i) Disciplinary Inquiries and criminal cases can proceed simultaneously;
(ii) If a Disciplinary Inquiry and a criminal trial are based on identical set of
facts and the charge in criminal trial is grave involving complicated questions of
law, it would be desirable to stay the Disciplinary Inquiry pending the criminal
trial;
(iii) Whether a criminal charge is grave and whether complicated questions
of facts and law are involved in the criminal trial, which is sub‐judice, would
depend upon the nature of the offence, evidence collected during the
investigation and the charge sheet filed in the Criminal Court;
(iv) Disciplinary Inquiry cannot also be unduly delayed if the criminal trial
gets prolonged due to various factors;
(v) If the criminal trial gets unduly delayed, the Disciplinary Inquiry – even
though already stayed pending conclusion of the criminal trial – can be
resumed and proceeded with;
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(vi) It must, however, be ensured that the right of a Government Servant to
defend himself in the pending trial is not adversely affected because he has
to disclose his defence in the Disciplinary Inquiry based on the same facts and
evidence as in the pending trial.
89. The principles expounded in Captain Paul Antony’s case(supra) has
been reiterated by the Supreme Court in State Bank of India versus
R.B.Sharma(AIR 2004 SC 4144).
90. There is a consensus of judicial opinion that a Disciplinary Inquiry and a
criminal trial can go on simultaneously except when both are based on the
same set of facts and evidence. Admittedly, a criminal case and a Disciplinary
Inquiry belong to distinct and different jurisdictional areas. The standard of
proof in a criminal trial is “proof beyond reasonable doubt” whereas the
standard of proof in a Disciplinary Inquiry is “preponderance of probabilities”.
But it cannot be denied that if an accused Government Servant takes the plea
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that because of a pending Disciplinary Inquiry on the same set of facts, he is
likely to be prejudiced in his defence in the trial, the courts would invariably
stay the Disciplinary Inquiry till the criminal trial is over.
91. The dilemma facing a Disciplinary Authority is that if a criminal case
has been started – and the Disciplinary Authority has no control over the
investigation and submission of charge sheet in a criminal case – he cannot
serve Articles of Charge upon the delinquent Government Servant on the
same set of facts as in the charge sheet in the criminal case against him.
92. The question is : Would it be reasonable and legally tenable to provide in
the relevant Service Rules the imposition of major penalty of dismissal from
service on a delinquent Government Servant who has been charge sheeted
under Section 173 of the Code of Criminal Procedure 1973 for an offence
under the Prevention of Corruption Act 1988 and the Court has framed
charges? In other words, can we go for a post‐decisional hearing in such a case
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after dismissal from service of the delinquent Government Servant by
amendment of Article 311 of the Constitution and the relevant Service Rules?
And one may ask what better opportunities an accused Government Servant
would get for a post‐decisional hearing if, after his dismissal from service
under the Service Rules, the trial court, which is totally independent and is
under the control not of the Government but of the High Court having
jurisdiction, tries his case and comes to a finding whether he is to be
convicted as guilty or acquitted as innocent of any offence under the
Prevention of Corruption Act 1988.
93. In Maneka Gandhi versus Union of India(AIR 1978 SC 497) the Supreme
Court held that if urgent action has to be taken against a person in the public
interest, the principle of “audi alteram partem” (the right of being heard),
which is a vital principle of Natural Justice, can be held as satisfied if a postdecisional
hearing is given to the person against whom punitive action has
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been taken in the public interest because of urgency without even hearing
him in his defence. In the aforesaid judgement, the Court also held as
follows:‐
“Natural Justice is pragmatically flexible and is amenable to
capsulation under the compulsive pressure of circumstances”. The
Court have quoted foreign judgements to justify post‐decisional hearing
in suitable cases provided the post‐decisional hearing is on par with a
pre‐decisional hearing and is not a sham or an empty formality.
94. In Maneka Gandhi’s case(supra) the Supreme Court also warned that the
“audi alteram partem” rule is meant to inject justice into the law and cannot
be applied to defeat justice or to make law lifeless, absurd, stultifying and
self‐defeating or plainly contrary to common sense of the situation.
95. Against such a backdrop of pronouncements by the Supreme Court and
the urgency to get rid of allegedly corrupt Government Servants, we propose
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an amendment to Article 311 of the Constitution to embody this principle of
post‐decisional hearing after a delinquent Government Servant’s dismissal
from service under the relevant Service Rules. In other words, the proposed
amendment to Article 311 will provide that if a charge sheet under Section
173 of the Code of Criminal Procedure is submitted against a Government
Servant for an offence under the Prevention of Corruption Act 1988 and the
Court frames charge against the Government Servant as an accused and the
President or the Governor, as the case may be, is satisfied that urgent action
in the public interest is necessary, the President or the Governor, as the case
may be, shall pass an order dismissing the delinquent Government Servant
from service under the relevant Service Rules pending the criminal trial.
96. We are of the view that the amendment proposed to Article 311 would
be held as intra vires because of the following:
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(a) The objective of the proposed amendment is to cover senior
Government Servants including members of the All‐India Services who can be
removed from service only by orders of the President or the Governor, as the
case may be, because the President or the Governor is their Appointing
Authority. It will not cover Government Servants for whom the President or
the Governor is neither the Appointing Authority nor the Authority
empowered to remove or dismiss them.
(b) While the removal or dismissal from service under the Service Rules is
proposed pending the criminal trial under the Prevention of Corruption Act
1988 after framing of charges, we recommend a further safeguard to the
Government Servants from motivated and hasty or ill‐considered charges
before the Courts in the form of an independent Advisory Board which would
scrutinize the charge‐sheet, the evidence gathered by the investigating agency
and representation of the Government Servant against the charge‐sheet and
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advise the President/Governor through the CVC as to whether there is a prima
facie case against the Government Servant. The sanction of prosecution would
be based on such advice by the independent Advisory Board. If the Advisory
Board considers that the evidence presented by the investigating agency
does not merit a charge‐sheet in a criminal trial, it may advise the CVC that a
major penalty Disciplinary Inquiry against the Government Servant is
warranted in the case. The Advisory Board, in such a contingency, may also
advise whether the evidence against the Government Servant, even if it does
not merit a criminal case, is adequate to warrant dismissal/removal by the
Disciplinary Authority followed by a post‐decisional hearing. The CVC, after due
consideration of such advice of the Advisory Board, would render its advice to
the Disciplinary Authority on the dismissal and prosecution of the Government
Servant or for initiation of major penalty Inquiry against him for a postdecisional
hearing after he is dismissed from service pending the hearing.
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(c) The proposed amendment will empower only the President or the
Governor, as the case may be, to pass the order of dismissal from service of
the Government Servant pending his trial/post‐decisional hearing and would
not confer the power of dismissal from service on any functionary other than
the President or the Governor.
(d) If the delinquent Government Servant, who is dismissed from service by the
President or the Governor, is acquitted in the criminal trial or exonerated in
the post‐decisional Inquiry, he will be reinstated in service with full service
benefits including seniority in service and arrears of pay and allowances.
(e) In appropriate cases, on the advice of the Advisory Board, the CVC may
also advise the Department/Ministry neither to file a chargesheet nor to
initiate a major penalty Disciplinary Inquiry.
97(a) The composition of the Advisory Boards to advise the CVC and the
Government of a State would be different. They may comprise retired Judges of
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the Supreme Court and retired Judges of the High Courts, retired District
Judges(who had tried CBI cases against Government Servants) and retired
Secretaries/retired Additional Secretaries/retired Joint Secretaries to the
Government of India or officers of equivalent ranks. The Advisory Boards would
be constituted with the stipulation that only a former Judge of the Supreme
Court would be the Chairman of the Advisory Board in respect of the CVC and a
former Judge of a High Court would be the Chairman of the Advisory Board in
case of officers of a State Government of Class I or Class II (other than officers
of the All‐India Services Service serving in connection with affairs of a State).
(b) The modalities of appointment of Chairman/Members of the Advisory
Board for the CVC will be decided by the Department of Personnel and
Training, Government of India in consultation with the Chief Justice of India.
The General Administration Department/the Appointment Department/the
Personnel Department in the State Governments may similarly decide the
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modalities of the appointments of Chairman and Members of the Advisory
Boards for State Government Servants of Class I and Class II in consultation
with the Chief Justice of the High Court having jurisdiction. The Advisory
Boards will have a tenure of a minimum period of two years from the date of
their constitution. In appropriate cases, the Department of Personnel and
Training, Government of India or the concerned Department of the State
Government can change the incumbents of the Advisory Boards for reasons to
be recorded in writing after concurrence of the Chief Justice of India or the
Chief Justice of the High Court, as the case may be. The Chairman and Members
of the Advisory Boards will have the same salary and perquisites admissible to
them when they were holding office as Judges of the Supreme Court/High
Courts. The same dispensation will be applicable to retired District Judges who
had tried CBI cases/retired Secretaries, Additional Secretaries and Joint
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Secretaries to the Government of India or officers of equivalent rank, who
would be members of Advisory Boards.
(c) It is expected that the Advisory Boards would act in a time‐bound manner
and advise the CVC/State Governments in specific cases within a maximum
period of three weeks of receipt of the representation of the delinquent
Government Servant to the copy of the chargesheet sent to him by the
Advisory Board. In our view, constitution of Advisory Boards with highranking
functionaries is likely to eliminate any possibility of wrong
prosecution by the CBI/the Vigilance Directorate/the ACB and Government
Servants will have a greater sense of protection. In our view, corruption
among Government Servants can be adequately checked if the genuinely
corrupt are penalized swiftly and the genuinely honest do not face
harassment only because they took bold decisions in the public interest and did
not follow the Rule Book scrupulously.
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98. Our proposal for amendment of Article 311 of the Constitution to
dispense with a Disciplinary Inquiry as stipulated in Article 311(2) is not a
new concept in the Constitution. Sub‐clauses (a), (b) & (c) of the second
proviso to Article 311(2) provide for it. A Disciplinary Inquiry as stipulated in
Article 311(2) can be dispensed with on grounds of security of the State as
provided in sub‐clause(c) above, if the President or the Governor is satisfied
that such Inquiry can be dispensed with. Though it is not provided for in the
Constitution, in the case of removal or dismissal from service of a Government
Servant under the Central Government including an All‐India Service Officer
without Inquiry on grounds of security of the State, a high‐level Committee
under the Chairmanship of the Union Home Secretary makes the
recommendation in case of the delinquent Government Servant. But for
dispensing with Disciplinary Inquiry following a conviction in a criminal court
as in sub‐clause (a) above, and for dispensing with an Inquiry for the reason
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that it is not reasonably practicable to hold the Inquiry as contained in subclause
(b) above, the Authority competent to dismiss or remove a
Government Servant or reduce him in rank (who may not be the President or
the Governor) is fully empowered to dismiss/remove/reduce in rank a
delinquent Government Servant without Inquiry. In other words, for
dispensing with an Inquiry under sub‐clauses (a) and (b) of the second
proviso to Article 311(2), even the satisfaction of the President or the
Governor is not necessary in cases where the President or the Governor is not
the Appointing Authority.
99. Moreover, at present, if a question arises whether it is reasonably
practicable to hold a Disciplinary Inquiry, the decision of the Authority
empowered to dismiss, remove or reduce in rank the Government Servant
shall be final as stipulated in Clause (3) of Article 311 of the Constitution. In
such a case also, the satisfaction of the President or Governor, as the case
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may be, is not a pre‐requisite as neither of the two high constitutional
functionaries is the Appointing Authority of the delinquent Government
Servant.