expert comittee vigilance 08-08-2010

8/6/2019 Expert Comittee Vigilance 08-08-2010

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REPORTOFTHECOMMITTEEOFEXPERTS

On12May2010,theDepartmentofPersonnelandTraining,Ministry

ofPersonnel,PublicGrievancesandPensions,Governmentof India issueda

notification appointing a Committee of Experts to review the procedure of

Disciplinary/Vigilance Inquiries and recommend measures for their

expeditiousdisposal.

2. The Committee was given a period of two months to make its

recommendations.AsummaryoftheReportoftheCommitteeisatAnnexure.

3. TheCommitteecomprisedthefollowing:

(i) P.C.Hota,

formerChairmanofUnion

PublicServiceCommission Chairman

(ii) ArvindVarma Member

FormerSecretary,

DepartmentofPersonnel&Training,

GovernmentofIndia

(iii) P.Shankar Member

FormerCentralVigilance

Commissioner

GovernmentofIndia


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InquiryagainstdelinquentGovernmentServants.TheConstitutionofIndiahas

alsoprovidedforDisciplinaryInquirieslargelyonthemodelofsuchInquiries

undertheGovernmentofIndiaAct,1935.

7. WehavenotedthattheprovisionsofSection96(B)oftheGovernment

of India Act 1919, Section 240 of the Government of India Act 1935, the

provisions inArticles309,310and311of theConstitutionand the relevant

ServiceRulessuchastheCivilServices(Classification,ControlandAppeal)Rules

1920,modified in1930and furthermodified in1957,and the latestCentral

Civil Services(Classification, Control and Appeal) Rules 1965 framed under

Article309oftheConstitution,havebeenthesubjectofscrutinyofthehigher

judiciary including the Privy Council, the Federal Court and the Supreme

Court.

8. AftercommencementoftheConstitutionon26January1950,different

facets of Article 311 of the Constitution particularly what constitutes


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reasonableopportunityforadelinquentGovernmentServantascontained

inArticle311(2)havebeen the subjectof scrutinyof theSupremeCourt,

whichhaslaiddown principlesandparametersinthisregard.

9. From time to time, theGovernmentof Indiahasalso issuedexecutive

instructions to further streamline theprocedure forDisciplinary Inquiries in

conformity with judgements of the Supreme Court. Nevertheless, there

continue to be instances of inordinate delay in the disposal of such

DisciplinaryInquiries.

10. A Survey by the Indian Institute of Public Administration, New Delhi

reported the following findingsabout thepercentageofdelay indisposalof

DisciplinaryInquiriesatdifferentlevels:

(i)

Administrative

Departments

69%

(The reference is obviously to the time taken by the Administrative

Department/MinistryaftermisconductofthedelinquentGovernmentServant


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cametoofficialnoticeandtheDepartment/Ministryconductedapreliminary

inquiryandifsuchInquiryindicatedcommissionofanyoffence,sentthecase

forinvestigationaccordingtolaw.Ifafterdueinvestigation,thecasewassent

backtotheDepartment/MinistryforinitiatingaDisciplinaryInquiryinteralia,

because evidence during investigationwas not sufficient for a charge sheet

under Section 173 of the Code of Criminal Procedure, 1973, the

Department/MinistryframedArticlesofChargeforamajorpenaltyInquiryon

thebasisofavailableevidence. IfthedelinquentGovernmentServantdenied

thecharges,theDisciplinaryAuthorityappointedanInquiryOfficertoconduct

the Inquiry againsttheDelinquentGovernmentservant.)

(ii) InquiryOfficersinDisciplinaryInquiries 17%

(This

has

obvious

reference

to

the

time

taken

by

Inquiry

Officers

to

record

evidence of witnesses of both the Presenting Officers on behalf of the

DisciplinaryAuthoritiesandthedelinquentGovernmentServantsontheirown


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Commissionandonlyincaseswhereimpositionofaminorpenaltyisproposed

onanyofficeroftheAllIndiaServicesworkinginconnectionwiththeaffairsof

aState,theStateGovernmentisrequiredtoconsulttheUPSCbeforeimposing

theminorpenaltyundertheAllIndiaServices(Discipline and Appeal) Rules

1969.

11. Before we deal with what steps could be taken to eliminate the

inordinate delay by various Agencies in processing and conducting a

Disciplinary Inquiry, we would like to give a historical perspective of

DisciplinaryInquiriesagainstdelinquentgovernmentservants.

12. DuringtheperiodoftheEast IndiaCompany,aperson inemployment

oftheCompanycouldberemovedfromserviceofthecompanybytheCourt

of

Directors.

Provision

to

this

effect

was

contained

in

the

Charter

Act

1793

and

theCharterAct1833.


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16. AsmentionedearlierinthisReport,asetofRuleswasframedunderthe

GovernmentofIndiaAct1919calledtheCivilServices(Classification,Control

andAppeal)Rules1920.Forthefirsttime,the1920Rulesprovidedfor

aproperlyrecordedDepartmentalInquiry

(ii) The1920RulesisaprecursortotheCentralCivilServices(Classification,

ControlandAppeal)Rules1965framedunderArticle309oftheConstitution.

The1965RulesgovernDisciplinary Inquiries relating topersonsholding civil

postsorinCivilServiceoftheGovernmentofIndia.

17. For the AllIndia Services i.e. the Indian Administrative Service, the

Indian Police Service and the Indian Forest Service, the All India Services

(Discipline andAppeal)Rules 1969, framed under theAllIndia ServicesAct

1951,

regulate

Disciplinary

Inquiries.

All

India

Services

officers,

whether

servinginconnectionwiththeaffairsofaStateorondeputationtotheCentral

Government or other Agencies, are governed by the AllIndia


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Services(Discipline & Appeal) Rules 1969. The Railway Servants who are

under the Central Government, are governed by the Railway Servants

(Discipline&Appeal)Rules,1968.

18. The Civil Services(Classification, Control and Appeal) Rules 1920 were

replacedbyanewsetofRulescalledtheCivilServices(Classification,Control

andAppeal) Rules 1930. The 1930 Rules continued in force even after the

GovernmentofIndiaAct1935andthecommencementoftheConstitutionon

26January1950.TheCentralCivilServices(Classification,ControlandAppeal)

Rules1957were replacedby theCentralCivilServices(Classification,Control

andAppeal)Rules1965which,asmentionedearlier,areinforceatpresent.

19. The Government of India Act 1935 contained the following two

provisions

of

the

earlier

Government

of

India

Act

1919

:

(i) EverypersonholdingacivilpostundertheGovernmentholdsitduring

thepleasureoftheCrown.


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(ii) Nopersonholdingacivilpost in thecentralorprovincialGovernment

can be dismissed by an Authority subordinate to that by which he was

appointed.

20. The Government of India Act 1935 also went a step further and

providedthatnocivilservantorpersonholdingacivilpostcanbedismissed

from service or reduced in rank until he has been given a reasonable

opportunityofshowingcauseagainstthepenaltyproposedtobeimposedon

him. The stipulation reasonable opportunity to show cause was not

applicable

(i) ifapersonholdingacivilpostorintheCivilServiceiseitherdismissedor

reduced in rankon ground of conductwhich has led to his convictionon a

criminal

charge

or

,

(ii) where the Authority empowered to dismiss or reduce him in rank is

satisfiedforreasonstoberecordedinwritingthatitwouldnotbereasonably


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practicable toholdan inquiryandgive thedelinquentgovernmentservanta

reasonableopportunitytoshowcauseagainsttheArticlesofChargeservedon

him.

21. Asmentionedearlier,theConstitutionof India inregardtoprovisions

for the Services under the Union or a State has been modelled on the

GovernmentofIndiaAct1935.

22. Amajordeparture from theGovernmentof IndiaAct1935 is that the

Constitutionof Indiaprovided,under thesecondproviso toArticle311(2)at

subclause(c),thatanopportunityofbeingheardinrespectofthechargesshall

not be given to a delinquent government servant if the President or the

Governor,as thecasemaybe, issatisfied that it isnotexpedient toholdan

Inquiry

in

the

interest

of

security

of

the

State.

There

was

no

such

provision

in

theGovernmentofIndiaAct1935.


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23. TherewasalsonoprovisionanalogoustoClause(3)ofArticle311ofthe

Constitution in the Government of India Act 1935 that if a question arose

whether itwouldbereasonablypracticabletoholdaDisciplinary Inquiry,the

decisionthereonoftheAuthoritycompetenttodismiss,removeorreducethe

GovernmentServant inrankshallbefinal.

24. Article311(2)oftheConstitution,asitwasoriginallyenacted,stipulated

asfollows:

Nosuchpersonasaforesaidshallbedismissedorremovedfromservice

orreducedinrankuntilhehasbeengivenareasonableopportunityof

showingcauseagainstactionproposedtobetakeninregardtohim.

25. By the Constitution (Fifteenth Amendment) Act 1963, Clause(2) of

Article

311

was

amended

as

follows

:

Nosuchpersonasaforesaidshallbedismissed,removedorreducedin

rankexceptafteran Inquiry inwhichhehasbeen informedofcharges


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against him and given a reasonable opportunity of being heard in

respectofthosecharges;

Provided thatwhen it is proposed after such Inquiry to impose

uponhimanysuchpenalty,suchpenaltymaybeimposedonthebasisof

evidenceadducedduring such Inquiryand it shallnotbenecessary to

givesuchpersonany opportunityofmakingrepresentationagainstthe

penaltyproposed.

26. BytheConstitution(FortySecondAmendment)Act1976 whichcame

into effect from the 1st of January 1977 the right of the delinquent

GovernmentServanttorepresentagainsttheproposedpenaltywasdeleted.

27. Eventhough,forthefirsttime,itwas laiddownbytheSupremeCourt

in

Union

of

India

versus

H.C.Goel

(AIR

1964

SC

364)

that

reasonable

opportunityenvisagedinArticle311(2)oftheConstitutionmadeitobligatory

fortheDisciplinaryAuthoritytofurnishacopyoftheReportofInquirytothe


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delinquentGovernmentServantwiththeviewsoftheDisciplinaryAuthorityif

suchAuthoritydisagreedwith the findingsof the InquiryOfficer, itwasnot

until the judgement of the Supreme Court in Union of India versus Md

RamzanKhan(AIR1991SC471)thatitbecameobligatoryfortheDisciplinary

Authority to furnishacopyoftheReportof Inquirywith theobservationsof

the Disciplinary Authority, if any, to the delinquentGovernment Servant to

enable him to represent against the findings of the Inquiry Officer and the

observations of the Disciplinary Authority. The mandatory requirement to

furnishacopyoftheReportofInquirytothedelinquentGovernmentServant

was enforced after 20November 1991 the date of thejudgement inMd

RamzanKhanscase(supra).

28.

Under

the

existing

instructions,

the

Disciplinary

Authority

is

required

to

consider the representationof thedelinquentGovernmentServantbefore it

couldimposeonhimanyofthepenaltiesundertherelevantServiceRules.


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29. InviewofthepronouncementsoftheSupremeCourtonthescopeand

ambit of reasonable opportunity in Article 311(2) of the Constitution,

including thejudgement inKhemChandversusUnionof India(AIR1958SC

300) which is a locus classicus on the subject, reasonable opportunity in

Article311(2)comprisesthefollowing:

(i) ServiceoftheArticlesofChargeonthedelinquentGovernmentServant

with the imputations in support thereof and the list of witnesses and

documentsinsupportoftheActsofcharge;

(ii) An opportunity to the delinquent Government Servant to deny the

allegedmisconduct,as contained in theArticlesofCharge,andestablishhis

innocence;

(iii)

An

opportunity

to

the

delinquent

Government

Servant

to

defend

himself

bycrossexaminingthewitnessesofthePresentingOfficerandanopportunity

toexaminehimselfandhisownwitnessesindefence;


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(iv) Anopportunity toget copiesof the relevantdocumentsonwhich the

Articles of Charge are based. The copies of the documents must be in a

languagewhichthedelinquentGovernmentServantunderstands.

(v) An opportunity to get a copy of the Report of Inquiry (with the

commentsoftheDisciplinaryAuthority iftheDisciplinaryAuthoritydisagrees

with any findingsof the InquiryOfficer in hisReportof Inquiry) so that the

delinquent Government Servant could represent against the findings of the

Inquiry Officer or the observations of the Disciplinary Authority. In other

words,thedelinquentGovernmentServantwillgetanopportunitytopointout

howtheInquiryOfficerhaseitherarrivedatawrongfindingortheDisciplinary

AuthorityhasmadeanywrongobservationsintheDisagreementNote.

30.

As

held

by

the

Supreme

Court

in

Managing

Director

ECIL

versus

B.

Karunakar(AIR1994SC1074) therecouldbeglaringerrorsandomissionsin

aReportof Inquiryor theReportmayhave beenbasedonno evidenceor


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renderedindisregardtoorbyoverlookingevidence. IftheReportofInquiry,

withtheDisagreementNote,ifany,oftheDisciplinaryAuthority, isnotmade

available to the delinquent Government Servant, the crucial Report on the

basis of which the Disciplinary Authority imposes a suitable penalty, never

comestobeknowntothedelinquentGovernmentServant.Theresult isthat

such Government Servant gets no opportunity to point out errors and

omissions,ifany,andtodisabusethemindoftheDisciplinaryAuthoritybefore

heispronouncedguilty.TheSupremeCourt,therefore,heldthatnonsupplyof

acopyoftheReportof InquirytothedelinquentGovernmentServantwasa

violation of the principle of Natural Justice and a denial of reasonable

opportunitytothedelinquentGovernmentServanttodefendhimself.

31.

We

now

propose

to

deal

with

some

issues

connected

with

Disciplinary

InquiriesagainstGovernmentsServants.Parliamenthasenactedalawviz.The

Departmental Inquiries (Enforcement of Attendance of Witnesses and


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Production of Documents) Act 1972 to facilitate smooth disposal of

DisciplinaryInquirieswherewitnessesordinarilythosewitnesseswhoarenot

undertheadministrativecontrolofthe DisciplinaryAuthorityarecalledby

the InquiryOfficertodeposeduringthehearingandwheredocumentsnot

inthecustodyoftheDisciplinaryAuthorityarerequiredtobeproduced to

either prove a charge against a delinquent Government Servant by the

PresentingOfficer ortodisproveachargewhensuchdocumentis soughtto

beproducedbeforetheInquiryOfficerbythedelinquentGovernmentServant.

Atpresent,foreachDepartmental Inquiry,theCentralGovernmenthasonly

powerstoissueaNotificationundertheActof1972 empoweringanInquiry

Officer to enforce attendance of witnesses or ensure production of

documents.

A

separate

Notification

in

each

case

of

a

Departmental

Inquiry

empoweringanInquiryOfficerundertheActof1972 isatimetakingprocess

anddoesnotserveanyusefulpurpose. We,therefore,recommendthatthe


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Actof1972beamendedtoauthorizeanyInquiryOfficertoexercisepowers

of enforcement of attendance of witnesses and production of documents

duringpendencyofanyDisciplinaryInquiry. Inthealternative,thefeasibility

ofachievingthesameobjectivethroughasuitableprovision intherelevant

ServiceRulesmayalsobeexaminedand,iffoundfeasible,putintoeffect.

32. Wenotedthatsometimes,adelinquentGovernmentServantprays for

adjournment of hearings in a Disciplinary Inquiry on a false pretext. It was

arguedthattochecksuchabusetheServiceRulesbeamendedtoprovidefora

maximum number of three adjournments in the entire course of hearing

beforeanInquiryOfficer.

33. We have not been able to persuade ourselves to accept this line of

argument.

In

our

view,

fixing

the

maximum

number

of

adjournments

in

the

courseofahearingofaDisciplinary Inquirywillputanunnecessaryfetteron

thebonafideexerciseofpowerbyan InquiryOfficertograntadjournmentof


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34. InmanyDepartments/Ministries,theremaynotbeadequatenumberof

officerswhoarethoroughwiththeServiceRulesandtheexecutiveinstructions

regulatingDisciplinaryInquiries.Werecommendthattomakeuptheshortage

ofcompetent InquiryOfficers,everyHeadofOffice/Headof theDepartment

may have a list of names and addresses of retired officers who have a

reputationforintegrityandwhoarewellversedwiththeServiceRulesandthe

instructions in regard to Disciplinary Inquiries. Once the panel of Inquiry

Officersisfinalized,theDisciplinaryAuthoritymayappointanyoneoutofthe

panelofnamesof retiredofficersas the InquiryOfficer. Itmustbeensured

that a retired officer appointed as an InquiryOfficer shouldhave been in a

higher grade, when he retired on superannuation, than the delinquent

Government

Servant

facing

the

Disciplinary

Inquiry.

35. Asfaraspracticable,anInquiryOfficershouldconductthehearingona

daytodaybasis tocomplete the Inquiryexpeditiously.Each InquiryOfficer


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ofhis successoras the InquiryOfficer. Toeliminate suchdelay itwouldbe

expedient to designate CDIs under the CVC in a numerical or alphabetical

manner, viz., CDII, CDIII or CDIA, CDIB and so on. Under such an

arrangement,DepartmentalInquiriescouldbeentrustedtoCDIIorCDIIIwith

the stipulation that CDIII will take over if CDII is no longer available to

conducttheInquiryduetohistransferorotherreasons. Ifsuchaninnovative

practiceisintroducedintheorderofappointmentofCDIsasInquiryOfficerin

aparticularInquiry,therewouldbenoneedforfreshorderoftheDisciplinary

Authority forappointmentof the successorCDIas the InquiryOfficer in the

same Inquiry.By theproposedchange inprocedure,continuitywouldbe far

bettermaintainedinpendingDepartmentalInquiriesandalsolossofvaluable

time

prevented.

(b) AsaCDIgetsadequateexperienceinconductingaDisciplinaryInquiry,it

isinthepublicinterestthatheshouldbeallowedalongertenureintheCVC


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thanatpresent.Inourview,aCDIshouldnotbesubjecttothenormalruleof

deputationapplicableforaCentralGovernmentServant.We,however,would

leaveittotheDepartmentofPersonnelandTrainingtofixthenormalperiod

ofdeputationofaCDIkeepinginviewourrecommendationthataCDIshould

stayforasufficientlylongperiodintheCVC.

37(a) We are of the view that the fees paid to the Inquiry Officers, as at

present,arenotadequatecompensationforthearduousnatureofworkina

Disciplinary Inquiry.We have noted that an InquiryOfficerwho is a serving

officerconductsaDepartmentalInquiryinadditiontohisdutiesandnotmany

serving officers arewilling to function as InquiryOfficers.We recommend

thatifaservingofficerisappointedasanInquiryOfficerhemaybegrantedan

honorarium

ranging

from

Rupees

Five

Thousand

to

Rupees

Ten

Thousand

per

case.AtpresentaservingofficergetsonlyanhonorariumofRs.3000/ percase

ifheworksasanInquiryOfficerinadditiontohisduties.


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(b) In case of a retired officer, appointed as an Inquiry Officer, the

honorariummayvaryfromRupeesFifteenThousandtoRupeesSeventyFive

Thousandpercase. Wehaverecommendedsubstantiallyhigherhonorarium

than the present honorarium of Rs.9750 for each case for a retired officer

appointed as an InquiryOfficer. Suchofficerswould be of different grades

ranging from retiredSectionOfficersorofficersofequivalent rank to retired

SecretariestotheGovernmentofIndiaorofficersofequivalentrank.

(c) ItwouldnotbeoutofplacetomentionthatCentralGovernmentPublic

Sector Undertakings pay substantial per diem sitting fee to retired senior

functionaries from thehigherjudiciary and retiredhighrankingGovernment

Servants acting as Arbitrators or Conciliators under the Arbitration and

Concilation

Act

1996.

Besides,

a

per

diem

transport

allowance

as

well

as

board

andlodginginstarhotelsarealsoprovided.


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(d) A retiredofficerwho isappointedasan InquiryOfficermayalsogeta

consolidated transport allowance of Rupees Fifteen Thousand to Rupees

Forty Thousand per case so that he is not outofpocket. In cases where

assistanceof a stenotypist isnot given to a retiredofficer appointed as an

Inquiryofficer, theDisciplinaryAuthoritymay sanctionuptoRs.30,000asan

allowancepercase forstenographicassistancedependingon thevolumeof

paper work in the case. If either a serving or a retired officer does not

completetheDisciplinary Inquirywithinthetimeframerecommendedbyus,

the Disciplinary Authority may reduce the amount of honorarium and

allowancesasperhisdiscretion.

(e) We recommend that in the matter of payment of honorarium and

allowances

to

serving

and

retired

officers

appointed

as

Inquiry

Officers,

the

decisionoftheDisciplinaryAuthorityshallbefinalandheneednotseekany


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otherapproval forpaymentofhonorariumoncethescaleofhonorarium is

fixedbytheDepartmentofPersonnelandTraining,GovernmentofIndia.

38. It was brought to our notice that delayed payment or virtual non

paymentof the prosecutionwitness isaseriouscontributor to thedelay in

disposalofcriminalcasesandDepartmentalInquiries.Itappearstousthatthe

problemcanbetackledinthefollowingmanner:

(a) Ifthewitness isaservingGovernmentServant,theexpenseswould,as

usual,bebornebytheDepartment/Organisationthatdisburseshissalary.

(b) IncasethewitnessisaretiredGovernmentServantandheisappearing

asawitnessfortheCBI,theexpensesoftravelandaccommodationwould,in

thefirstinstance,bebornebytheCBIandsubsequentlyadjustedbetweenthe

CBI

and

the

Department

concerned.

(c) In case thewitness is a retiredGovernment Servant and is appearing

beforetheCDIinaDepartmentalInquiry,theexpenseswouldbeborne,inthe


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(a) Inthemetropolitancities,StateCapitalsandsomemajorcitiessuchas

Nagpur, Kanpur, Pune, Kochi and Vizag, which are not State Capitals, the

Departmentof Personnel& Training,Governmentof India may undertake

preparationofapanelof retiredofficersofcompetenceand reputationfor

integrity, fairness and objectivity to be appointed as Inquiry Officers or as

PresentingOfficers.

(b) For other major cities in the country, the various

Departments/Ministriesshouldpreparesimilarpanelsof retiredofficers.The

CentralBoardofDirectTaxes,forexample,couldhaveapanelforplaceswith

largepresenceofseniorofficerswhiletheDepartmentofPostscouldhavea

panelwhere thePostMastersGeneralare located.OtherOrganisationsand

Departments

of

the

Central

Government

may

act

also

in

a

similar

manner

to

prepare panels of names of retired Officers to act as Inquiry Officers or

PresentingOfficers.


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(c) We also reiterate that the panels thus prepared should desirably

compriseofficersofvaryinglevelsofseniorityinorderthatinquiriespertaining

todifferentgradesofdelinquentGovernmentServantscouldbeentrustedto

them.

40. In our opinion, if panels of names of persons with their former

designations and address are available for appointment as Inquiry

Officers/Presenting Officers and the Inquiry Officers/Presenting Officers are

paidhonorarium, transportallowanceandsecretarialallowanceon thescale

recommended by us, this would be a big step to expedite Disciplinary

Inquiries,whichatpresentareproceedingsluggishly.

41. We also recommend that the Department of Personnel and Training,

GovernmentofIndiacouldconsidergivingsuitablepublicitytothisexerciseso

that competent retired officers with experience of conducting Disciplinary


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Officer,hemaybegrantedanhonorariumranging from15,000/ to25,000/

per Disciplinary Inquiry. Appointment of competent retired officers as

Presenting Officers is recommended by us as far as possible since serving

officersaresometimestransferredduringpendencyofaDisciplinaryInquiry,

causingalotofdislocationanddelayintheInquiry.

43. APresentingOfficer,whoisusuallyfromtheHeadofOfficeortheHead

of theDepartmentwhere thedelinquentGovernment Servant isworkingor

wasworking, has to be thoroughwith the facts of the case so that he can

unravelthetruthandtrytoensurethatthefindingsoftheInquiryOfficerare

infavouroftheDepartment/MinistryandagainstthedelinquentGovernment

Servant.Wehavenotedthatbecauseof lackofadequatepreparationonthe

part

of

Presenting

Officers,

a

number

of

delinquent

Government

Servants

have

escapedpenaltieswhichtheyotherwisedeservedfortheirmisconduct.


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44. Inouropinion,thereshouldbenoembargoonthenumberofcasesin

which a serving or retired officer can be an Inquiry Officer or a Presenting

Officer and the matter be best left to the discretion of the Disciplinary

Authority. As the entire exercise in a Disciplinary Inquiry is to achieve

expeditiousdisposal,theDisciplinaryAuthorityshouldbegivenfullpowersto

appoint anyone in thepanelof names as an InquiryOfficeror aPresenting

Officer and to fix the honorarium and other allowances within the limits

recommended by us.Asmentioned earlier, the number of cases an Inquiry

Officer or a Presenting Officer can handle at a time may be left to the

discretion of the Disciplinary Authority. We may, however, observe that it

wouldbedifficultforaretiredofficertobetheInquiryOfficeroraPresenting

Officer

in

more

than

three

Disciplinary

Inquiries

at

a

time.

45. Article 311(2) of the Constitution stipulates that a delinquent

GovernmentServantwouldbegiven reasonableopportunity tobeheard in


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Moreover,aslaiddownbytheSupremeCourtinA.K.KraipakversusUnionof

India(AIR1970SC150)ifastatuteexpresslyorbynecessaryimplicationomits

the application of the Rules of Natural Justice, the statute will not be

invalidatedforsuchomission.InthejudgementonChairmanBoardofMining

ExaminersversusRamjee(AIR1977SC1965) itwasheldthatNaturalJustice

isnounrulyhorse,nolurkinglandminenorajudicialcureall. Inviewofthe

totality of facts and the law on the subject, we recommend that if the

DisciplinaryAuthoritydecidesto imposeaminorpenalty,hecandoso ina

minor penalty Disciplinary Inquiry on the basis of explanation of the

delinquentGovernmentServant to theArticlesofChargeandnoelaborate

Inquiry,envisaged in theServiceRules as atpresent, shouldbenecessary.

Our

recommendation,

if

accepted,

would

require

an

amendment

of

the

Service

Rulesonly.


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46. In our view, a minor penalty Disciplinary Inquiry can be concluded

withinamaximumperiodofsixtydaysfromthedateofserviceoftheArticles

ofCharge.Wehaveelsewhereobserved that inaminorpenaltyDisciplinary

Inquiry, there isnoconstitutionalstipulationofconductingadetailed inquiry

asenvisagedinArticle311(2)oftheConstitution.Wehavealsorecommended

that theUPSC need not be consulted before imposition of any one of the

minorpenaltiesand theUPSCneeds tobe consultedonlyat theappellate

stage forsuchpenalties.Weclarifythat inso farasofficersoftheAllIndia

Services serving in connection with affairs of a State are concerned, prior

consultationwith theUPSC,asatpresent,would continue tobenecessary

beforeimpositionofanyoftheminorpenaltiesbytheStateGovernment.If

our

recommendation

is

accepted,

as

already

mentioned,

all

minor

penalty

Inquiriesagainstofficersof theGroupAandB categoriesunder theCentral

Government includingofficesof theAllIndia ServicesonCentraldeputation


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39

can be concludedwithin amaximum period of sixty days from the date of

serviceoftheArticlesofCharge. Inouropinion,aminorpenaltyswiftlybut

judiciouslyimposedbyaDisciplinaryAuthorityismuchmoreeffectivethana

majorpenaltyimposedafteryearsspentonaprotractedInquiry.

47(a) Wehave, in thisReport,adopted theapproach that for theofficersof

theAllIndiaServicesserving inconnectionwithaffairsoftheUnion,aminor

penalty can be imposed without consultation with the UPSC whereas prior

consultationwiththeUPSCwouldcontinuetobenecessaryinrespectofsuch

officersservinginconnectionwithaffairsofaState.Thisapproachmay,onthe

faceof it, appear to be discriminatory.Our recommendation in this regard,

however, is based on careful appreciation of the situation prevailing in the

country.

The

All

India

Services,

particularly

the

Indian

Administrative

Service

andthe IndianPoliceService,areavery importantarmoftheGovernmentin

any State for the implementation of development programmes, for


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40

maintenanceof lawandorderandforpolicy formulation. Inthiscontext,we

have noted that in the Government of India, institutions and procedural

arrangementsareinplacetopreventanyharassmentorvindictiveactionand

toensureobjectivity intheexerciseundergonewhileawardingpenalties.For

one, there is the CVC, a highpowered, statutory body since the year 2003

whose advice is obtained in disciplinary matters having vigilance angle.

Secondly,adisciplinarymatterofanAllIndiaServiceofficerservinganyofthe

Departments/Ministriesof theGovernmentof India,would, in so far as the

award of a minor penalty is concerned, is processed and decided by the

DepartmentofPersonnelandTraining,whoseMinisterincharge isthePrime

Ministerhimself.

(b)

Therefore,

we

feel

that

until

such

time

as

Statutory

Vigilance

CommissionsonthelinesoftheCVCcomeintoexistenceinalltheStates,the

dispensation proposed by us, viz., prior consultation with the UPSC before


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41

impositionof aminor penaltyonofficersbelonging to theAllIndia Services

andserving inconnectionwithaffairsofaStateshouldcontinue tooperate.

(Wehave,of course,elsewhere stated that theGovernmentof India should

use itsgoodoffices toensure theestablishmentofVigilanceCommissions in

theStatesonthelinesoftheCentralVigilanceCommission.)

48. For major penalty Inquiries as envisaged in Article 311(2) of the

Constitution,where the InquiryOfficerhas todoadetailed inquiry into the

ArticlesofChargebyexaminationofwitnessesbothofthePresentingOfficer

andof the delinquentGovernment Servant andwhere relevant documents

have tobeexamined/exhibited forajustdecision in thecase, themaximum

timecouldbetwelvemonthsfromthedateofserviceoftheArticlesofCharge

before

the

case

records

are

referred

to

the

UPSC

for

advice

under

Article

320(3)(c)oftheConstitution.Hopefully,iftheUPSCtakesamaximumperiodof

five tosixmonths togive itsconsideredadvice, theDisciplinary Inquiry fora


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42

majorpenaltycanbeconcludedwithinamaximumperiodofeighteenmonths

fromthedateofserviceofArticlesofChargeonthedelinquentGovernment

Servant till the date of the final order by the Disciplinary Authority, after

consultationwiththeUPSC.(ElsewhereinthisReport,wehaverecommended

thattheCVCssecondstageadvicemaybedispensedwithbecauseofreasons

mentionedbyus.WewouldliketoleaveittothebestjudgementoftheUPSC

to devisemethods for reducing the time taken by it in rendering its advice

underArticle320(3)(c)oftheConstitution.)

49. At present, matters concerning Disciplinary Inquiries against

Government Servants of Group A and Group B categories of the Central

Government and officers of the AllIndia Services working on central

deputation

are

put

up

to

the

Minister

in

charge

of

the

Department/Ministry

fororders. (It is clarified that forofficersof theAllIndia Services serving in

connectionwiththeaffairsofaState,theStateGovernment iscompetentto


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43

initiate any major or minor penalty Disciplinary Inquiry but the State

Government is competent to impose only a minor penalty on an AllIndia

ServiceOfficerserving inconnectionwithaffairsofaStateand for imposing

anymajorpenaltyonsuch anofficer,theStateGovernmenthastosubmitthe

case to the Central Government in the appropriate Department/Ministry,

which is the Cadre Controlling Authority of the AllIndia Service Officers.)

Broadlystated,thestepsforwhichatpresentorderoftheMinisterincharge

astheDisciplinaryAuthorityissoughtareasfollows:

(i) ToinitiateaDisciplinaryInquiryandfororderwhetherthecontemplated

InquirywouldbeamajorpenaltyoraminorpenaltyInquiry.

(ii) To considerexplanationof thedelinquentGovernmentServant to the

Articles

of

Charge

to

decide

whether

the

Inquiry

would

be

closed

because

of

thesatisfactoryexplanationoftheGovernmentServantorwhethertheInquiry


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44

would proceed as the explanation of the Government Servant is either not

satisfactoryorthe GovernmentServanthasdeniedtheArticlesofCharge.

(iii) ToappointanInquiryOfficer.

(iv) ForobservationsontheReportofInquirybeforeacopyoftheReportof

InquiryalongwithDisagreementNote,ifany,oftheMinisterinchargeasthe

DisciplinaryAuthority,issenttothedelinquentGovernmentServanttoenable

himtosubmithisrepresentationonfindings intheReportof Inquiryandthe

DisagreementNote.

(v) For final order of the Ministerincharge as the Disciplinary Authority

whetherthedelinquentGovernmentServantistobeexoneratedorpenalised

andthequantumofpenaltytobeimposedonhimafterconsultationwiththe

CVC

and

the

UPSC.

50. Wesubmitthat, inthemodernsetting,where,atthehighest level,the

Political Executive is increasingly concerning itself with matters of policy,


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45

implementationofthepolicyandtherelevantprogrammes andtherecently

introducedschemeofResultsFrameworkDocument (RFD)andalliedissues

perhaps a time has come for the Ministerincharge 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 Ministerincharge in a

DisciplinaryInquiry.ElsewhereinthisReport,wehaverecommendedthatthe

MinisterinchargeshouldbetheDisciplinaryAuthorityincaseofofficersofthe

levelofAdditionalSecretaryandSecretarytoGovernmentofIndiaandofficers

ofequivalentrankapartfromcontinuingtoactastheAppellateAuthorityfor

allotherPresidentialappointees.

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 AllIndia Services, the President is the


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47

andtheDisciplinaryAuthority,thepowershavebeenalreadydelegatedtothe

Ministerincharge.

(c) Undertheexistingdelegationofpowers,aDisciplinaryAuthorityunder

therelevantServiceRules,whoiscompetenttoimposeanyoneoftheminor

penalties on a Government Servant may also initiate a major penalty

Disciplinary InquiryagainstsuchGovernmentServantfor impositionofanyof

themajorpenalties,includingdismissalorremovalfromserviceorreductionin

rank.

(d) The stipulation inArticle311(1)of theConstitution is that aperson,

who isholdingacivilpostor isamemberofaCivilServiceoftheUnionora

StateoraMemberoftheAllIndiaServices,cannotbedismissedorremoved

from

service

by

an

Authority

subordinate

to

that

by

which

he

was

appointed.

Therefore,incasesofofficersoftheGroupAandspecifiedGroupBcategories

intheCentralGovernment,wherethePresidentistheAppointingAuthority,if


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50

concurrenceoftheSecretarytotheGovernmentofIndiaintheDepartmentof

PersonnelandTraining. IntheeventofdisagreementbetweentheSecretary,

DepartmentofPersonnelandTrainingandtheSecretaryoftheAdministrative

Department/Ministry, the former shall coopt one more Secretary to the

Governmentof India for the Committee of three Secretaries to take a final

decisioninthematter.

(iii) ThepowersofanAppellateAuthorityinrelationtopenaltiesimposedby

a Secretary to the Government of India in a Department/Ministry should

continuetoremainwiththeMinisterincharge,whowillcontinuetoexercise

thedelegatedpowersofthePresidentinthisregard.

(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

GovernmentServantofGroupA andGroupB categories under theCentral

Government and officers of the AllIndia Services. We also recommend no


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51

change of the Authority competent to review the order of penalty already

imposedatanystagesubsequenttoimpositionofapenalty.

(v) Anamendmentof theServiceRules toprovide foranewAppointing

Authoritywouldtakeeffectprospectively.

(vi) The Service Rules can be, however, amended, not necessarily

prospectively, to provide for any change of a Disciplinary Authority of a

GovernmentServantwhoisemployedincivilcapacitiesundertheUnionora

State.

53. Wehavenoted thataDisciplinary Inquiry involving lackof integrityor

corruptpracticeonthepartofadelinquentGovernmentServantissenttothe

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

penaltyDisciplinary Inquiry. After conclusion of themajor orminor penalty

Disciplinary Inquiry, the case records are again referred to the CVC for the


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53

1197).Inotherwords,furnishingacopyofthesecondstageadviceoftheCVC

to thedelinquentGovernment Servant ismandatory toenableadelinquent

GovernmentServanttogetreasonableopportunitytobeheardinrespectof

theArticlesofCharge.

56. UndertheServiceRules,acopyoftheadviceoftheUPSC,inareference

made to it under Article 320(3)(c), has to be furnished to the delinquent

GovernmentServantasarequirementofreasonableopportunity.

57. Therehavebeen instanceswherethesecondstageadviceof theCVC

has been at variance with the advice of the UPSC in case of the same

DisciplinaryInquiry.SuchvariationintheadviceofthetwoCommissionsviz.,

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

unanimityofopinionbetween theUPSCand theCVCwhether their client is


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54

guiltyornotandhencetheclientdeservesexoneration inthe Inquiry.Taking

anoverallviewofthematter,wefeelthatnogreatharmwouldbecaused if

the second stage advice of the CVC is dispensed with while retaining the

presentarrangementfortheCVCsfirststageadvice.Asamatteroffact,after

theCVC has given the first stage advice that facts of a casejustify amajor

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 alsowould not be able to impose amore lenient penalty if the

chargeof lackof integrityor corruptpracticehasbeen 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

deniedthattheprimaryresponsibilitytoenforcehonestyandintegrityamong


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55

Government Servants is that of the Department/Ministry. Moreover, the

Vigilance Officer/Chief Vigilance Officer of the Department/Ministry, who

functionsunder thedualcontrolof theDepartment/Ministryand theCVC, is

physicallylocatedintheDepartment/Ministry.Hecanbetrustedtoguidethe

Disciplinary Authority in the matter of imposition of the appropriate major

penaltyofdismissalorremovalfromserviceifthechargeoflackofintegrityor

corrupt practice is proved against a delinquent Government Servant.

Moreover,aftertheNotificationdated11October2000oftheDepartmentof

PersonnelandTraining,GovernmentofIndiamakingthepenaltyofdismissal

or removal from service mandatory in Disciplinary Inquiry involving lack of

integrityorcorruptpractice,weareoftheviewthatthesecondstageadvice

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


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56

delinquentGovernmentServanthavebeenproved, itmaybeprescribedthat

thematter be referred to the CVC for the second stage advicewith clearly

recorded reasons forsuchdisagreement.Ourexpectation isthat thenumber

of such caseswould be relatively small.We do not recommend dispensing

with second stage advice of the CVC in cases of the Central Public Sector

Undertakingsand theNationalizedBanksas in such cases reference to the

UPSCunderArticle320(3)(c)isnotastipulatedrequirement.Wehavenoted

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,GovernmentofIndia.

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,aDisciplinary Inquirygets itsproperorientationeitherasamajor

penaltyorasaminorpenalty Inquiry.Andonce theCVCdecidesat the first


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58

consultation with the UPSC has been dispensed with as per our

recommendation.InTulsiramPatelversusUnionofIndia(AIR1985SC1416),

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

aggrievedGovernmentServantcangetadequateprotectionat theappellate

stageundertheServiceRules,wheretheUPSChastobeconsulted.Inother

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

PersonnelandTraining,Governmentof IndiathatArticle320(3)(c)isnotonly

aboutthepenaltytobe imposedbut isalsoabouttheconfidenceahonest


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59

GovernmentServanthasthattoimposeonhimanypenalty,howeverminor,

aConstitutionalAuthoritysuchastheUPSChastobefirstconsulted.Wesee

theforceofargumentoftheUPSCbutwemayobservethatonehastolookat

thepresentscenariowherecasesofadviceindisciplinarymattersunderArticle

320(3)(c)haveincreasedmanifold.Atpresent,everyyear,theUPSCgetsabout

800 to 900 Disciplinary Inquiry cases for advice and in view of the very

thorough scrutiny theUPSCmakes ineachDisciplinaryCase, ithasbecome

difficulttogetadvicefromtheUPSCevenincasesofminorpenaltyDisciplinary

Inquiriesbeforeat leastaperiodof five tosixmonthshaselapsed from the

date of reference. Keeping in view the objective of ensuring that minor

penaltiesareawardedexpeditiously todelinquentGovernmentServantsand

also

leaving

the

UPSC

to

have

more

time

to

concentrate

on

major

penalty

disciplinarymatters and render their advice in a shorter timeframe than at

present,wereiterateourrecommendationthatindisciplinarymattersrelating


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60

tominorpenaltiespriorconsultationwiththeUPSCmaynotberequiredunder

Article320(3)(c)oftheConstitutionexceptforofficersoftheAllIndiaServices

servinginconnectionwithaffairsofastate.

61. The UPSC has informed the Department of Personnel and Training,

GovernmentofIndiathat,atpresent,inasmanyas40%casesofDisciplinary

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

informationwantedbytheUPSCasperthecheck listcirculatedby ittoall

Departments/Ministriesandalsoputonitswebsite.Ifthecaserecordsdonot

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

timelyadvicefromtheUPSC.


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61

62. IftheDepartments/Ministriesareseriousaboutexpeditiousdisposalof

Disciplinary Inquiries, they have to take care of such routine matters. We

recommendthatbefore thecase records inaDisciplinary Inquiryaresent to

the UPSC for advice under Article 320(3)(c) of the Constitution, the Joint

Secretary/Director/Deputy Secretary in charge of Establishmentmatters in

theconcernedDepartment/Ministrymustgiveacertificateinwritingthatthe

case records are being sent to theUPSC for advice after complyingwith all

itemsinthestandardchecklistbytheDepartment/Ministry.Ifthecertificate

oftheJointSecretary/Director/DeputySecretaryintheDepartment/Ministryis

foundtobedefectiveasall items inthestandardcheck listhavenotbeen

complied with before furnishing the certificate and the certificate has been

issued

in

a

slip

shod

manner,

a

minor

penalty

Disciplinary

Inquiry

shall

be

initiatedagainstthedelinquentJointSecretary/Director/DeputySecretaryof

the Department/Ministry. Such a stipulation is most likely to ensure the


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62

correctness of the certificate of theDepartment/Ministry andwill eliminate

unnecessarydelayingettingadviceoftheUPSC.

63. Thedeficienciespointedoutabovearisesamongotherthings,fromthe

lackofstrongandeffectivevigilancedivisions in theDepartments/Ministries.

Currently, one of the Joint Secretaries in the Department/Ministry is

designated as the Chief Vigilance Officer who has to undertake vigilance

functionsinadditiontohisofficialduties.Thisresultsinlackofproperfollow

upofvigilancerelatedmatters includingpreliminary inquiries,preparationof

proposals for seeking the first stage advice of the CVC, and other related

issues. In our view, Government may consider appointing fulltime CVOs in

Departments/Ministries.ItmaynotbenecessarytohavefulltimeCVOs inall

Departments/Ministries

and

there

could

be

CVOs

in

charge

of

more

than

one

Department/Ministry with Vigilance Divisions headed by fulltime Deputy

Secretaries inthe individualDepartments/Ministries.Weareoftheviewthat


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63

appointment of fulltime CVOs would ensure proper attention to vigilance

mattersandimprovethequalityofproposalsforwardedtotheCVC/UPSC.This

would in turn enable the CVC/the UPSC to cut down significantly the time

takentorendertheiradvice.Apartfromimprovingthequalityofproposalsto

initiate disciplinary action against the delinquent Government Servants, the

fulltime CVOs will also enable better handling of complaints against the

GovernmentServants. It issignificant tonote thataveryhighpercentageof

disciplinary cases originate from complaints of misuse/abuse of power and

corruption.Betterhandlingandquick investigationofcomplaintswill lead to

betterdetectionofsuchimproprietiesanddeterrentactionagainsttheerring

GovernmentServants.

64.

We

have

received

a

suggestion

that

to

reduce

the

pendency

of

the

large

numberofDisciplinaryInquiries,itwouldbeexpedientinthepublicinterestto

introduce the concept of plea bargaining by delinquent Government


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64

Servants.Undertheproposedschemeofpleabargaining,suchGovernment

ServantsonwhomArticlesofChargehavebeenserved,maybeinformedthat

ifheoptsforpresentingapleainthisregardandadmitstheArticlesofCharge,

he would be given a comparatively lenient penalty. We clarify that if plea

bargain is accepted the Disciplinary Authority need not appoint an Inquiry

Officertoinquireintothecharges.

65. Plea bargaining started in Criminal Courts in USA. Following the

recommendation of the Malimath Committee, the Government of India

acceptedpleabargainingincriminaltrialsandintheyear2005hasamended

the Code of Criminal Procedure 1973 to introduce plea bargaining for

offenceswherethemaximumpunishmentisimprisonmentuptosevenyears

only.

We

could

not

have

access

to

reliable

data

as

to

how

plea

bargaining

hasworkedinpracticeincriminaltrialsin India. Itdoesnot,however,appear

asifpleabargaininghasresultedindrasticreductionofthehugebacklogof


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65

pending criminal cases in trial courts in the country. We are, however,

consciousthatcriminalcasespendinginCourtsof Indiaarefartoomanyand

the backlog of pendency of such cases in Courts is rather colossal.

Pendency/backlog in Disciplinary Inquiriesmay 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

integrityandcorruptpractice, ifheldasproved,shouldbeeitherremovedor

dismissedfromserviceaspertheexistinginstructionsandweededoutofthe

system, where he has been as lethal as a cancerous growth. Removal of

corrupt

Government

Servants

has

also

been

recommended

in

State

of

RajasthanversusB.R.Meena(AIR1997SC13),wheretheSupremeCourtheld

that the administrative machinery should be kept unsullied by removing


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66

corruptofficialsthroughappropriateproceedingsunderthelaw.Wehavealso

mentioned elsewhere in this Report that as per the Notification of the

DepartmentofPersonnel&Training,GovernmentofIndiaofOctober,2000,in

provencasesoflackofintegrityorcorruptpracticebyaGovernmentServant,

thepenaltymustbeeitherdismissalorremovalfromservice.

66. PleabargainingcanbeintroducedinDisciplinaryInquiriesexceptfor

chargesoflackofintegrityorcorruptpracticethroughappropriateExecutive

InstructionsandamendmentoftheServiceRulesisnotrequiredtointroduce

the scheme. Further, to eliminate any possibility of error of judgement in

mattersofpleabargaining,theDisciplinaryAuthoritymaybesuitablyadvised

byaCommitteeofseniorofficersofappropriaterankbeforeapleabargain

of

a

delinquent

Government

Servant

is

accepted

by

the

Disciplinary

Authority.

67. Underthisarrangementofpleabargaining,adelinquentGovernment

Servant on whom Articles of Charge for major penalty Inquiry have been


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67

served could be given the opportunity to admit the charges on the

understandingthatifheadmitstheArticlesofCharge,apenaltyotherthanany

majorpenaltywouldbeimposedonhim.Certainotherfeaturesofthissystem

ofpleabargainingneedtobespeltoutasfollows:

(a) ThedelinquentGovernmentServantwouldhavetoadmitthe charges

entirely,categoricallyandunconditionally,clarifyingalsothathe cannot and

willnotgobackonthisadmissionsubsequently.

(b) All cases where a request for a plea bargain is received should be

examinedbyapanelofthreeofficersconstitutedbytheHeadofDepartment

ortheSecretarytotheGovernmentofIndiaconcerned.Thismechanismseems

desirableinorderthatasingleofficerisnothesitantaboutdealingwithaplea

bargain,apartfromrulingoutinstancesofallegedoractualcollusion.

68. Itwassuggestedtousthatthepenaltyofcompulsoryretirementfrom

serviceonthebasisofamajorpenaltyDisciplinary Inquirymaybedispensed


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68

withasapenaltyandmaybedeleted from the listofmajorpenalties in the

Service Rules. The argument in favour of this proposal is that a delinquent

GovernmentServantwhoiscompulsorilyretiredasameasureofpenalty,does

notfeelthestingofthepenaltyasheisallowedtoenjoyhismonthlypension

andtheadmissiblegratuity.

69. Weagreethatthemajorpenaltyofcompulsoryretirementfromservice,

asitexistsatpresentintheServiceRules,maynotbeastiffpenaltyinviewof

the admissibility of fullpostretirementbenefits. If thepenaltywere tobe

suitably modified to include not only compulsory retirement but also, in

appropriatecases,forfeitureofgratuityandacut inmonthlypensionsubject

toaminimumof10%andamaximumof50%,thepenaltywillacquirealotof

teeth.

We,

therefore,

recommend

that

compulsory

retirement

as

a

major

penalty be retained in the existing list of major penalties with a cut in

pensionandforfeitureofgratuityasrecommendedbyus.


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70

(iv) Withholdingofincrementsofpay.

(NB:We suggest necessary modification in this minor penalty following the

recommendationoftheSixthCentralPayCommissionforintroductionofapay

bandwithgradepay.)

MajorPenalties

(v) Saveasprovided for inClause (iii)(a) reduction toa lowerstage in the

timescaleofpayforaspecifiedperiod,withfurtherdirectionsastowhether

ornottheGovernmentServantwillearnincrementsofpayduringtheperiod

ofsuchreductionandwhether,ontheexpiryofsuchperiod,thereductionwill

orwillnothavetheeffectofpostponingfutureincrementsofhispay;

(NB:Thismajorpenalty is also required tobemodified suitablypursuant to

introductionofpaybandwithgradepayforapost).

(vi) Reduction to lower timescale of pay or grade, post or service which

shallordinarilybeabar to thepromotionof theGovernmentServant to the

timescaleofpay,grade,postorservicefromwhichhehasbeenreduced,with


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orwithoutfurtherdirectionsregardingconditionsofrestorationtothegrade,

post or service from which the government servant was reduced and his

seniorityandpayonsuchrestorationtothatgrade,postorservice.

(NB: The language of this major penalty will also undergo modification

pursuanttointroductionofpaybandandgradepayforapostafteracceptance

ofrecommendationsoftheSixthCentralPayCommission.

(vii) Compulsoryretirement;

(NB:Wehaveproposedretentionofthismajorpenaltywithaminimumof10%

andmaximumof50% cut in pension and admissible gratuity in appropriate

cases.)

(viii) Removal from service which shall not be a disqualification for future

employmentundertheGovernment;

(ix) Dismissal from service, which shall ordinarily be a disqualification for

future

employment

under

the

Government.

Providedthat ineverycase inwhichthechargeofpossessionofassets

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

motiveorrewardfordoingorforbearingtodoanyofficialact, isestablished,

thepenaltyshallbeeitherremovalordismissalfromservice.

Providedfurtherthatinanyexceptionalcaseandforspecialreasonsto

berecordedinwriting,anyotherpenaltymaybeimposed.

71. TheServiceRulesalsoprovide that in the following categoryof cases,

terminationofservicewillnotbeconsideredasapenalty:

(i) termination of service of a probationer in accordance with the Rules

governingprobationers;

(ii) terminationofserviceofatemporarygovernmentservantinaccordance

with subrule(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,inaccordancewiththetermsofcontractofsuchagreement.


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73

72. Wehaveobservationstomakeonsomeoftheminorpenaltiessuchas

(iii)(a) above introduced by a Notification on 23 August 2004, which is as

follows:

reduction toa lowerpostor timescaleor toa lower stage in time

scale of pay by one stage for a period not exceeding three years

withoutcumulativeeffectandnotaffectinghispension.

73. TheConstitutionprovidesinArticle311thatreduction inrankisoneof

thethreepenaltiesthetwootherbeingremovalordismissalfromservice

whichcanbeimposedonlyafteranInquiryasenvisagedunderArticle311(2).

IntherelevantServiceRules,dismissalorremovalfromserviceandreduction

inrankarecalledmajorpenalties.

74.

In

view

of

the

clear

constitutional

stipulation

as

aforesaid,

the

minor

penaltyat(iii)(a)introducedinAugust2004,maynotbeabletostandjudicial

scrutinyasaminorpenalty.Itisrelevanttomentionthatreductioninrankcan


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74

occurevenifagovernmentservantisreducedbyonelowerstageinthetime

scaleofpayforaperiodnotexceedingthreeyearsasintheminorpenaltyat

(iii)(a)above. InthejudgementoftheSupremeCourtinDebeshChandraDas

versusUnionofIndia(AIR1970SC77),Das,anICSofficer,whowasaSecretary

to theGovernmentof Indiawas repatriated tohis state cadreofAssam.As

Secretary to the Government, Das was getting a salary of Rs.4000 p.m. On

reversiontotheStateofAssam,hegotaChiefSecretaryspayofRs.3500p.m.

TheSupremeCourtheldthatrepatriationofDastohiscadrewherehegota

payofRs.3500p.m.,meantthatDaswasreducedinrankjustbecausehelost

anamountofRs.500p.m.aspayeven thoughhewasgetting themaximum

payofRs.3500p.m.admissible to theChiefSecretaryof theStateofAssam,

the

highest

ranking

civil

servant

in

the

State.

75. Inviewoftheticklish legal implicationofaminorpenaltyas in (iii)(a)

above,Governmentmay like to consider and decide whether the aforesaid


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75

penaltycanberetainedasaminorpenalty.Inouropinion,(iii)(a)abovecannot

beretainedasaminorpenaltyasithastheattributesofthemajorpenaltyof

reductioninrank.

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

GovernmentServants. It istobenoted thataGovernmentServant,however

seniorhemaybe intermsof lengthofservice,hasnovestedrighttoholda

promotionpost. Hehasonlyarighttobeconsideredforpromotioninafair

manner. It is our view that periodic opportunities for promotion to higher

posts is a powerful incentive for better performance by any Government

Servant.IfthisvaluablerightisdeniedtoaneligibleGovernmentServant,such

denial

will

be

hit

by

Article

16

of

the

Constitution,

which

guarantees

equality

ofopportunityinemploymentundertheState.


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77. At present, the penalty of withholding promotionwhich is a minor

penaltydoesnotspecifywhetherthepenaltycanbeimposedevenwhenthe

GovernmentServantisnotwithinthezoneofconsiderationforpromotionto

thehigherpost.TheGovernmentof Indiahasnotyet issuedguidelineshow

thisminorpenalty,ifimposed,willoperateinpractice.Takinganoverallview

of the matter, we recommend that the minor penalty of withholding of

promotion can be imposed at any stage of the delinquent Government

Servantscareer. Itwill,however, takeeffect from thedatetheGovernment

Servant next below to the delinquent Government Servant in seniority is

promotedon regularbasis to the higherpost. TheDepartmentalPromotion

Committee/Selection Committee, which considers the service records of

eligible

officers

to

decide

regarding

suitability

of

promotion,

will

consider

the

records of the delinquentGovernment Servant,whose promotion has been

withheldasaminorpenaltyandkeephisassessmentregardingsuitabilityfor


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promotion inaSealedCover.ThisSealedCoverwillbeopenedonexpiry

of theperiodofpenalty. If theofficersassessment in theSealedCover is

favourable, hewill be promoted to the higher postwithout loss of interse

seniority;buthewillnotgetthepayofthepromotionpostduringtheperiod

his name was in the Sealed Cover. In other words, the delinquent

Government Servant will get the higher pay of the promotion post

prospectivelyfromthedateheispromotedaftertheSealedCoverisopened

and his assessment by the duly constituted Departmental Promotion

CommitteeortheSelectionCommitteeisfoundtobefavourable.

78. Asthepenaltyofwithholdingofhispromotionforalongperiodislikely

todemotivateanofficer intheperformanceofhisdutieswithdedicationand

sincerity,

we

recommend

that,

in

suitable

cases,

the

minor

penalty

of

withholding of promotion can be imposed for a maximum period of four

years.


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bedeemedtocontinueasaminorpenaltyproceedingevenafterretirement

ofthedelinquentGovernmentServantfromserviceonsuperannuationwith

thestipulationthatinsuchdeemedproceedings,notmorethan20percent

cutcanbemadeinmonthlypensionandnotmorethan20percentforfeiture

can be made in the admissible gratuity. Even though the minor penalty

recommendedbyuswouldaffectmonthlypension/admissiblegratuity,prior

approvalof thePresident shouldnotbenecessary for impositionof sucha

minor penalty. We have recommended such a measure because, when a

delinquentGovernmentServant is close to theageof superannuation, the

DisciplinaryAuthorityrealisesthatnominorpenaltyexcepttheminorpenalty

of Censure can be imposed as any other minor penalty would have an

adverse

effect

on

the

pension

of

the

delinquent

Government

Servant.

82. Inotherwords,theunderlyingpurposeofourrecommendation isthat

thePensionRulesshouldnotstand intheway if thedelinquentGovernment


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Servant,while in service, committedanactofmisconductwhichdeserveda

stiff minor penalty but which could not be imposed on him as it would

adverselyaffecthispensionafterretirementfromservice.

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 nonavailability of any other

minorpenaltythatthedelinquentGovernmentServantdeservesbasedonthe

factsofthecase.Besides,ourproposalshouldalsoactasadeterrentagainst

anyofficerbecomingrecklessclosetothetimeofhisretirementfromservice.

84. TheDepartmentofPersonnel&Training,Governmentof Indiahasnot

issuedany instructionsas to theperiodofcurrencyof theminorpenaltyof

censure,

the

most

lenient

of

minor

penalties

provided

under

the

Service

Rules.

At present, it is left to the Departmental Promotion Committee/Selection

Committee todecidewhether thisminorpenaltyofcensurewouldbe taken


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81

intoaccountwhilerecommendingpromotionofaneligibleofficerinthefeeder

grade. In most of the cases, the Departmental Promotion Committee/the

SelectionCommittee ignoresthepenaltyofcensure iftheoverallassessment

of record of service of an eligible officer can justify recommendation for

promotion.Wefeelthatwhilesuchflexibilityhasitsownadvantages,thereis

need foruniformityandconsistency indealingwith theeffectofcensureon

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.Werecommendthatthepenaltyofcensuremayhaveacurrencyof

oneyearonlyfromthedateofimposition.

85(a) Wehaverecommendedthatmajorpenaltiesofdismissal,removalfrom

service,

compulsory

retirement

and

reduction

in

rank

would

act

as

a

disqualification fordelinquentGovernmentServants for furtheremployment

under either the Government of India or Government of a State. If our


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82

recommendationisaccepted,nousefulpurposewouldbeservedbyretaining

removalfromserviceasoneofthemajorpenaltieswhich,undertheexisting

Service Rules, is not a disqualification for further employment under the

Government. As a matter of fact, removal from service of a Government

Servant isusually forgravemisconduct includingcorruptpracticeand lackof

integrity.WeareoftheviewthatadelinquentGovernmentServant,whohas

been removed from service for such grave misconduct, should not be

employedundereithertheGovernmentofIndiaorGovernmentofaStateasa

matterofpublicpolicy.We feel that ifdelinquentGovernmentServantsare

invariably dismissed from service for grave misconduct including corrupt

practiceandlackofintegrity,itwillsendtherightmessagetotherankandfile

of

Government

Servants

holding

civil

posts.

In

view

of

the

aforesaid,

we

recommendthatremovalfromservicemaybedeletedfromthelistofmajor

penaltiesundertheServiceRules.


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83

(b) Article311(1)stipulatesthatremovalfromserviceisoneofthepenalties

forwhichadelinquentGovernmentServantwouldfaceanInquiryasenvisaged

inArticle311(2)of theConstitution.TheCourtshaveheld that compulsory

retirement from service as a penalty is synonymous with the penalty of

removal fromservice.Therefore,thestipulation inArticle311(1)relatingto

removal from service would not be redundant as it would come into

operationifthepenaltyofcompulsoryretirementisimposedonadelinquent

GovernmentServant.But retaining removal from service as amajorpenalty

undertheServiceRuleswouldperhapsservenousefulpurposeasallService

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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84

involving lackof integrityorcorruptpractice, thecommonperception is that

corruption among Government Servants has been steadily growing. In the

Corruption Perception Index published by the Transparency International,

Indiaisadverselyplaced,which,sadly,isnotconsistentwithitsaspirationsto

become a supereconomic power. The situation is rather grim as, in recent

years, a number of officers of the AllIndia Services, i.e. the Indian

AdministrativeService,theIndianPoliceServiceandtheIndianForestService

have been either facing trial or have been convicted for corrupt practice.

ThoughdifferentAgenciessuchastheCentralBureauofInvestigation(CBI),the

VigilanceDirectoratesandtheAntiCorruptionBureaux(ACBs)havebeentrying

theirbesttocheckcorruption, theeffecthasnotbeenvery remarkable. It is

common

experience

that

criminal

trials

of

corrupt

Government

Servants

take

sucha long time thatwhentheyareconvictedandsentenced,the impactof

suchconvictionandsentence iseitherlostordissipated.Moreover,oftenthe


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corruptGovernmentServantgoesonappealtohighercourts,whichtaketheir

owntimetodisposeofthematter.Thenetresult isgrowingcynicism inthe

country that for a corrupt government servant, corruption is a lowrisk

venture.

87. At present, there is no legal bar to start amajor penalty Disciplinary

InquiryagainstadelinquentGovernmentServantfacingprosecutionunderthe

Prevention of Corruption Act 1988. We have noted that very often the

delinquentGovernmentServanttakesthepleabeforethecourtthatbecause

of the simultaneousDisciplinary Inquiry against him,he is prejudiced inhis

defenceinthecriminaltrialasthechargesintheDisciplinaryInquiryarebased

onthesamesetoffacts.

88.

In

Captain

M.

Paul

Antony

versus

Bharat

Gold

Mines

(AIR

1999

SC

1416)theSupremeCourthavelaiddownthefollowingprinciplesinregardtoa

DisciplinaryInquirywhenacriminaltrialispendingonthesamecharges:


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(i) DisciplinaryInquiriesandcriminalcasescanproceedsimultaneously;

(ii) IfaDisciplinaryInquiryandacriminaltrialarebasedonidenticalsetof

factsandthechargeincriminaltrialisgraveinvolvingcomplicatedquestionsof

law,itwouldbedesirabletostaytheDisciplinaryInquirypendingthecriminal

trial;

(iii) Whetheracriminalcharge isgraveandwhethercomplicatedquestions

offactsand law are involved inthecriminaltrial,which issubjudice,would

depend upon the nature of the offence, evidence collected during the

investigationandthechargesheetfiledintheCriminalCourt;

(iv) Disciplinary Inquiry cannot also be unduly delayed if the criminal trial

getsprolongedduetovariousfactors;

(v)

If

the

criminal

trial

gets

unduly

delayed,

the

Disciplinary

Inquiry

even

though already stayed pending conclusion of the criminal trial can be

resumedandproceededwith;


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87

(vi) Itmust,however,beensuredthattherightofaGovernmentServant to

defendhimself inthependingtrial isnotadverselyaffectedbecausehehas

todisclosehisdefenceintheDisciplinaryInquirybasedonthesamefactsand

evidenceasinthepending trial.

89. The principles expounded in Captain Paul Antonys case(supra) has

been reiterated by the Supreme Court in State Bank of India versus

R.B.Sharma(AIR2004SC4144).

90. ThereisaconsensusofjudicialopinionthataDisciplinaryInquiryanda

criminaltrialcangoonsimultaneouslyexceptwhenbotharebasedonthe

samesetoffactsandevidence.Admittedly,acriminalcaseandaDisciplinary

Inquiry belong to distinct and differentjurisdictional areas. The standard of

proof

in

a

criminal

trial

is

proof

beyond

reasonable

doubt

whereas

the

standardofproofinaDisciplinaryInquiryispreponderanceofprobabilities.

ButitcannotbedeniedthatifanaccusedGovernmentServanttakestheplea


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thatbecauseofapendingDisciplinary Inquiryonthesamesetof facts,he is

likelytobeprejudicedinhisdefence inthe trial,thecourtswouldinvariably

staytheDisciplinaryInquirytillthecriminaltrialisover.

91. Thedilemma facingaDisciplinaryAuthority is that ifa criminal case

has been started and the Disciplinary Authority has no control over the

investigationand submissionof charge sheet ina criminal casehe cannot

serve ArticlesofChargeupon thedelinquentGovernment Servanton the

samesetoffactsasinthechargesheetinthecriminalcaseagainsthim.

92. Thequestionis:Woulditbereasonableandlegallytenabletoprovidein

the relevantServiceRules the impositionofmajorpenaltyofdismissal from

serviceonadelinquentGovernmentServantwhohasbeencharge 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?Inotherwords,canwegoforapostdecisionalhearinginsuchacase


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after dismissal from service of the delinquent Government Servant by

amendmentofArticle311oftheConstitutionandtherelevantServiceRules?

AndonemayaskwhatbetteropportunitiesanaccusedGovernmentServant

would get for a postdecisional hearing if, after his dismissal from service

undertheServiceRules, the trialcourt,which is totally independentand 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

PreventionofCorruptionAct1988.

93. InManekaGandhiversusUnionofIndia(AIR1978SC497)theSupreme

Courtheldthatifurgentactionhastobetakenagainstapersoninthepublic

interest,

the

principle

of

audi

alteram

partem

(the

right

of

being

heard),

whichisa vitalprincipleofNaturalJustice,canbeheldassatisfiedifapost

decisionalhearing isgiven to thepersonagainstwhompunitiveaction has


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been taken in thepublic interestbecauseofurgencywithoutevenhearing

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

Courthavequotedforeignjudgementstojustify postdecisionalhearing

insuitablecasesprovidedthepostdecisionalhearing isonparwitha

predecisionalhearingandisnotashamoranemptyformality.

94. InManekaGandhiscase(supra)theSupremeCourtalsowarnedthatthe

audialterampartemruleismeanttoinjectjusticeintothelawandcannot

beapplied todefeat justiceor tomake law lifeless,absurd, stultifyingand

self

defeating

or

plainly

contrary

to

common

sense

of

the

situation.

95. AgainstsuchabackdropofpronouncementsbytheSupremeCourtand

theurgencytogetridofallegedlycorruptGovernmentServants, wepropose


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anamendmenttoArticle311oftheConstitutiontoembodythisprincipleof

postdecisional hearing after a delinquent Government Servants dismissal

fromserviceundertherelevantServiceRules.Inotherwords,theproposed

amendmenttoArticle311willprovide that ifachargesheetunderSection

173of theCodeofCriminalProcedure is submitted againstaGovernment

ServantforanoffenceunderthePreventionofCorruptionAct1988andthe

CourtframeschargeagainsttheGovernmentServantasanaccusedandthe

PresidentortheGovernor,asthecasemaybe,issatisfiedthaturgentaction

inthepublicinterestisnecessary,thePresidentortheGovernor,asthecase

maybe, shallpassanorderdismissing thedelinquentGovernmentServant

fromserviceundertherelevantServiceRulespendingthecriminaltrial.

96.

We

are

of

the

view

that

the

amendment

proposed

to

Article

311

would

beheldasintraviresbecauseofthefollowing:


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(a) The objective of the proposed amendment is to cover senior

GovernmentServantsincludingmembersoftheAllIndiaServiceswhocanbe

removedfromserviceonlybyordersofthePresidentortheGovernor,asthe

case may be, because the President or the Governor is their Appointing

Authority. ItwillnotcoverGovernmentServantsforwhomthePresidentor

the Governor is neither the Appointing Authority nor the Authority

empoweredtoremoveordismissthem.

(b) While the removal or dismissal from service under the Service Rules is

proposed pending the criminal trial under the Prevention ofCorruptionAct

1988 after framing of charges, we recommend a further safeguard to the

Government Servants from motivated and hasty or illconsidered charges

before

the

Courts

in

the

form

of

an

independent

Advisory

Board

which

would

scrutinizethechargesheet,theevidencegatheredbytheinvestigatingagency

and representationof theGovernmentServantagainst thechargesheetand


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93

advisethePresident/GovernorthroughtheCVCastowhetherthereisaprima

faciecaseagainsttheGovernmentServant.Thesanctionofprosecutionwould

bebasedonsuchadvicebytheindependentAdvisoryBoard.IftheAdvisory

Board considers that the evidence presented by the investigating agency

doesnotmeritachargesheetinacriminaltrial,itmayadvisetheCVCthata

major penalty Disciplinary Inquiry against the Government Servant is

warranted in the case. TheAdvisoryBoard, in such a contingency,may also

advisewhethertheevidenceagainsttheGovernmentServant,even if itdoes

not merit a criminal case, is adequate to warrant dismissal/removal by the

DisciplinaryAuthorityfollowedbyapostdecisionalhearing.TheCVC,afterdue

considerationofsuchadviceoftheAdvisoryBoard,wouldrenderitsadviceto

the

Disciplinary

Authority

on

the

dismissal

and

prosecution

of

the

Government

Servant or for initiation of major penalty Inquiry against him for a post

decisionalhearingafterheisdismissedfromservicependingthehearing.


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94

(c) The proposed amendment will empower only the President or the

Governor,as thecasemaybe, topass theorderofdismissal fromserviceof

theGovernmentServantpendinghis trial/postdecisionalhearingandwould

notconferthepowerofdismissalfromserviceonanyfunctionaryotherthan

thePresidentortheGovernor.

(d)IfthedelinquentGovernmentServant,whoisdismissedfromservicebythe

Presidentor theGovernor, isacquitted in the criminal trialorexonerated in

the postdecisional Inquiry, he will be reinstated in servicewith full service

benefitsincludingseniorityinserviceandarrearsofpayandallowances.

(e) Inappropriate cases,on theadviceof theAdvisoryBoard, theCVCmay

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

GovernmentofaStatewouldbedifferent.TheymaycompriseretiredJudgesof


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Secretaries to the Government of India or officers of equivalent rank, who

wouldbemembersofAdvisoryBoards.

(c) It isexpectedthattheAdvisoryBoardswouldact inatimeboundmanner

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 high

ranking functionaries is likely to eliminate any possibility of wrong

prosecution by the CBI/theVigilance Directorate/the ACB andGovernment

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

harassmentonlybecausetheytookbolddecisionsinthepublicinterestanddid

notfollowtheRuleBookscrupulously.


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98

98. Our proposal for amendment of Article 311 of the Constitution to

dispensewith aDisciplinary Inquiry as stipulated inArticle311(2) is not a

new concept in the Constitution. Subclauses (a), (b) & (c) of the second

provisotoArticle311(2)providefor it.ADisciplinary Inquiryasst