DISCIPLINARY PROCEEDINGS:
Order & Appeal
Important Points on Procedural Aspects
By-
Rajneesh Mohan Verma
Dy. Director JTRI Lucknow
Order In Disciplinary Proceedings:
Adverse Orders Order for punishment
The principle of natural justice requires that following orders
issued in the course of disciplinary proceedings, must be speaking
orders:
➔ Orders disposing allegations on Inquiry officer and application for
change
➔ Orders dealing with the request for appointment of a Legal
Practitioner as a Defence Assistant
➔ Orders rejecting the request for defence documents/witnesses
➔ Orders deciding on request for adjournment
➔ Final orders imposing penalty
➔ Orders of the Appellate, Revisionary or Reviewing authority
State of UP & Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131.
“Departmental inquiry cannot be treated as a casual
exercise. The enquiry proceedings cannot be conducted with the
closed mind.
The Rules of natural justice are required to be observed
to ensure not only that justice is done but it is manifestly
seen to be done.”
DEPARTMENTAL INQUIRY
WHY INQUIRY?
DEPARTMENTAL INQUIRY
WHY INQUIRY?
➢ Constitutional protection of Rule Of Law.
➢ Protection of fundamental Right under Article
21.
➢ Protection under Part XIV of the Constitution.
Art. 21 of the Constitution mandates that “No person shall be deprived of his life or
personal liberty except according to a procedure established by law.”
The expression 'life' does not merely connote animal existence or a continued
the
drudgery through life. The expression 'life' has a much wider meaning . Therefore
outcome of a departmental enquiry is likely to adversely affect
reputation or livelihood of a person, some of the finer graces of human
civilization which make life worth living would be jeopardised and the same can be put in
jeopardy only by law which inheres fair procedures.
Board Of Trustees vs Dilipkumar Raghavendranath Nandkarni 1983 AIR 109,
1983 SCR (1) 828
No Order for Punishment or Adverse Order
Without the Without following the
authority of Law prescribed procedure
Without providing Due Opportunity Without an speaking
and reasoned order
Authority Of Law to Punish & Prescribed Procedure:
➔ The All India Services ( Discipline and Appeal) Rules, 1969
➔ The Uttar Pradesh Government Servants (Discipline & Appeal)
Rules, 1999
Punishments (Rule 3 of UP D&A, 1999)
Minor Penalties Major Penalties
Actions which shall not amount to a penalty
Explanation to Rule 3
(i) Withholding of increment
(a) for failure to pass a departmental examination or
(b) for failure to fulfill any other condition under the rules or orders governing the
service;
(ii) Stoppage at the efficiency bar on account of not being found fit to cross the
efficiency bar;
(iii) Reversion to probation during or at the end of the period of probation in accordance
with the terms of appointment or the rules and orders governing such probation.
(iv) Termination of the service of a person appointed on probation during or at the end
of period of probation in accordance with the term of the service or the rules and order
governing such probation.
Protection to temporary Employees and Probationers:
If a temporary employee is discharged from service by giving him one month
notice, without assigning any reason, the same may be permissible.
If the order of discharge mentions any reasons having a bearing on the
conduct or the competence of the employees, in such cases an inquiry will be
necessary. In short, even probationers will be entitled to the protection of
inquiry, if the order of discharge contains a stigma.
Parshottam Lal Dhingra Vs Union of India AIR 1958 SC 36
Protection to temporary Employees and Probationers:
Deepti Prakash Banerjee vs. Satyendra Nath Bose National Centre for Basic Sciences, Calcutta
and others [(1999) 3 SCC 60] and Pavanendra Narayan Verma vs. Sanjay Gandhi PGI of
Medical Sciences and another [(2002) 1 SCC 520],
If findings were arrived at in an enquiry as to misconduct, behind the back of the officer or without
a regular departmental enquiry, the simple order of termination is to be treated as "founded" on the
allegations and will be bad.
But if the enquiry was not held, no findings were arrived at and the employer was not inclined to
conduct an enquiry but, at the same time, he did not want to continue the employee against whom
there were complaints, it would only be a case of motive and the order would not be bad.
Similar is the position if the employer did not want to enquire into the truth of the allegations because
of delay in regular departmental proceedings or he was doubtful about securing adequate evidence. In
such a circumstance, the allegations would be a motive and not the foundation and the simple order of
termination would be valid."
As per Rule 7 of UP D&A Rules, Before imposing any
major penalty on a Government Servant, an inquiry shall be held
in the manner prescribed in the said Rule.
Article 311 (2) of the Constitution- no civil servant shall be
dismissed or removed or reduced in rank except after an inquiry
in which s/he has been informed of the charges and given a
reasonable opportunity of being heard in respect of those charges.
Proviso to Rule 7 of UP D&A Rules Provides that the rule shall not
apply in following cases:
(i) Where any major penalty is imposed on a person on the ground of
conduct which has led to his conviction on a criminal charge.or
(ii) Where the Disciplinary Authority is satisfied, that for reason to be
recorded by it in writing, that it is not reasonably practicable to hold an
inquiry in the manner provided in these rules; or
(iii) Where the Governor satisfied that, in the interest of the security of
the state, it is not expedient to hold an inquiry in the manner provided in
these rules.
Note: same exception is there in Article 311(2) of the Constitution
➔ Criminal charge:
“Shankar Das Vs. Union of India AIR 1985 SC 772,”:-
“Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the
Government the power to dismiss a person from service on the ground of conduct which has
led to his conviction on a criminal charge". But, that power, like every other power, has to be
exercised fairly, justly and reasonably. Surely the Constitution does not contemplate that a
Government servant who is convicted for parking his scooter in a non-parking area should
be dismissed from service…the right to impose a penalty carries with it the duty to act
justly.”
➔ D A is satisfied that it is not reasonably practicable to hold an enquiry: Jaswant Singh v.
State of Punjab [(1991) 1 SCC 362: Union of India v. Tulsiram Patel (1985) 3 SCC 398
“The satisfaction must be based on certain objective facts and it should not be the outcome
of the whim or caprice of the concerned officer.”
DISCIPLINARY AUTHORITIES:
Kinds of Disciplinary Authorities?
The authorities who can impose only
Those who can impose all penalties minor penalties.
STEPS in INQUIRY
1.Preliminary Investigation/enquiry 8. Prosecution Evidence
2.Deciding to initiate final enquiry 09. Defence Evidence
3.Appointing Enquiry Officer 10. Preparing Report of the Enquiry
4. Framing & Serving of Charge (after approval) 11.Action on report
5. Appearance on the date fixed and Written Statement 12. Final Order by Disciplinary Authority
/ explanation.
6.Preliminary Hearing and Recording Admission of 13. Appeal
guilt if any
7.Appointing a “Presenting Officer” and “co-officer”
Preliminary Inquiry/investigation:
➢ Gopal Ji Rai Vs. State of UP, 2006 (63) ALR 616 (All)
“PE is only a fact finding Inquiry for the satisfaction of the authority as to
whether the allegations deserve any merit? and a departmental enquiry be
initiated?”
-
➢ Kendriya Vidyalaya Sangathan Vs. Arunkumar Madhavrao Sinddhaye and Anr.
(2007)1SCC283
“PE is completely at the discretion of the administrative authorities. It is not
covered by any statutory provision; not even the principles of natural justice are
applicable to it.”
Imposing penalty After PE.:(Rule 10)
❖ Where the DA is satisfied that good and sufficient reasons exists for adopting such
a course, it may impose one or more of the minor penalties mentioned in Rule 3 .
❖ But for this also, the concerned employee shall be informed of the substance
of the imputations against him and shall be called upon to submit his
explanation within a reasonable time. (Rule-10)
❖ where a penalty is imposed, reason thereof shall be given.
❖ The order shall be communicated to the concerned Government Servant.
Yoginath D. Bagde Versus State of Maharashtra and another (1999) 7 SCC 739
“the ‘right to be heard’, being a constitutional right of the employee cannot be taken
away by any legislative enactment or service rule including rules made under Article 309
of the Constitution.”
4. Framing & Serving of Charge Sheet .
➔ "charges" include any allegation in respect of which disciplinary action is
proposed to be taken against a person.
➔ Charge- sheet must contain :-
➢ the alleged misconduct and such other details as
may be necessary to enable the officer to prepare
his defence.
➢ There should be reference to Para or Subpara of
service rules with in which the particulars of
misconduct falls.
➢ The charges framed shall be so precise and clear as to give sufficient
indication to the charged employee of the facts and circumstances
against him.
R.3 General :
Every Government servant SHALL at ALL TIMES
MAINTAIN CONDUCT HIMSELF
Devotion To Duty According to specific or implied Orders
Regulating Behaviour & Conduct
Absolute Integrity
● The list of documents and witnesses
● Minimum 15 days - to submit Written Statement/
explanation.
● The official Should be informed in writing:
➢ The place, date and time when the Inquiry will be held.
➢ Ask as to whether he desires to cross examine any witness
mentioned in the charge-sheet. whether he desires to give or
produce evidence in his defence
➢ He shall also be informed that in case he does not appear or
file written statement on the specified date, it shall be
presumed that he has nothing to furnish and enquiry officer
shall proceed to complete the enquiry ex-parte.
Document not mentioned in the charge-sheet not to be
relied on:
A document which was not mentioned in the charge-
sheet could not be relied on or even referred to by the
disciplinary authority.
Kuldeep Singh Vs. Commissioner of Police & others,
(1999) 2 SCC 10
Supplying copy of document relied upon by the Enquiry Officer is must-
Where reliance was placed by the Enquiry Officer on the previous statement of
the witness without supplying a copy thereof to the delinquent and without
affording an opportunity to cross examine the witness, it has been held that the
Enquiry Officer was biased in favour of the department and found the
delinquent guilty in so arbitrary manner which showed that he was carrying
out the command of some superior officer
Kuldeep Singh Vs. Commissioner of Police & others, (1999) 2 SCC 10.
8. Prosecution Evidence on behalf of DA:
➢ The witness shall be examined by the presenting officer and may
be cross examined by or on behalf of the charged officer. but the
witness will not be permitted to cross-examine the officer charged.
➢ Witness will be examined in the presence of the charged officer or
his co-officer
➢ Enquiry Officer may ask any question he pleases, at any time
from any witness or from person charged, with a view to discover
the truth or to obtain proper proof of facts relevant to charges.
Admission & proving Documentary evidence:
State of Haryana & Anr. v. Rattan Singh (1977) 2 SCC 491
“It is well settled that in a domestic enquiry the strict and sophisticated rules of
evidence under the Indian Evidence Act may not apply. All materials which
are logically probative for a prudent mind are permissible.
Roop Singh Negi Vs Punjab National Bank & Others, (2009) 2 SCC 570
(paras 14, 15 & 23) and Naresh Singh Vs State of UP & Others, 2013 (1) ESC
429 (Allahabad)(DB)(LB)(para 43),
“in the departmental enquiry, mere production of documents is not enough.
The contents of the documentary evidence has to be proved by examining
witnesses.”
Standard of proof :
➔ Quasi- judicial,
➔ the charges are not required to be proved like a criminal trial
i.e. beyond all reasonable doubts.
➔ Rule of ‘preponderance of probability’ to prove the charges.
Nirmala J. Jhala Vs. State of Gujarat & Another, AIR
2013 SC 1513 ; M.V. Bijlani Vs. Union of India, (2006) 5
SCC 88
What is preponderance of probability?
Literal meaning of the word preponderance: is superiority
in power, influence number or weight.
As a level or standard of proof, preponderance of
probability means “more likely to have happened than
otherwise.”
➢ Summoning of witnesses:
➢ The enquiry officer may summon any witness to produce
document or to give evidence. He has all powers of civil
court in regards the summoning of witness and documents.
Uttar Pradesh Departmental Enquiries (Enforcement of
Attendance of Witness and Production of Documents) Act,
1976.
9. Defence Evidence
➢ On completion of the prosecution evidence, the charge-sheeted employee
has got opportunity to produce defence evidence
➢ State of Bombay vs. Narul Latif Khan AIR 1966 SC 269
“if the accused officer desires to examine witnesses whose evidence appears
to the Enquiry Officer to be thoroughly irrelevant, the Enquiry Officer may
refuse to examine such witnesses but in doing so, he will have to record his
special and sufficient reasons.”
10. Report of the Enquiry :
➢ Report Must be in the following order:-
a) Charges contained in the charge sheet;
b) Summary of the evidence recorded;
c) Analysis of evidence and observations thereon;
d) Findings in respect of each of the charges and reasons for
arriving at the conclusion.
Cardinal Principle in drawing conclusions in Disciplinary
proceedings:
(a) Conclusions must be based on evidence
(b) There is no room for conjectures or surmises in drawing
conclusions
(c) Reliance must be placed on the evidence made available
to the Charged Officer during the inquiry
(d) No evidence behind the back of the Charged Officer.
(e) Decision making authorities should not import personal
knowledge into the case
Findings in respect of each of the charges and reasons for
arriving at the conclusion.
➔ Based on evidence
➔ Considering only relevant material
➔ Findings must be Such that they could have been
rendered by any reasonable person placed in like
circumstances,
➢ the Inquiry Officer shall submit its inquiry report to the
Disciplinary Authority along with all the records of the
inquiry.
➢ The enquiry officer shall not make any recommendation about
the penalty. (Rule 8)
11. Action on enquiry report-
The disciplinary authority may-
➢ Remit the case for re-enquiry to the same or any other enquiry
officer
➢ Record it's own finding thereon.
➢ In case the charges are not proved ,the charged Government
Servant shall be exonerated by the Disciplinary Authority of the
charges and inform him accordingly.
Rule-9
Opportunity before final Order
➢ If the Disciplinary Authority, having regard to its finding on all
or any of charges is of the opinion that any penalty specified
in Rule 3 should be imposed on the charge Government
Servant,:-
○ he shall give a copy of the inquiry report and his finding
recorded if any to the charged Government Servant and
○ Shall require him to submit his representation if he so
desires, within a reasonable specified time.
12. Final Order by Competent Authority:
➢ The Disciplinary Authority shall having regard to all the relevant records
relating to the inquiry and representation of the charged Government Servant, if
any, and subject to the provisions of Rule 16 of these rules, pass a reasoned
order imposing one or more penalties mentioned in Rule 3 and communicate
the same to the charged Government Servant.
➢ Rule 16 provides that Before any order is passed by the Government under these
rules, the Commission , as required under the Uttar Pradesh Public Service
Commission (Limitation of Function) Regulation, 1954 as amended from time,
shall also be consulted.
➢ The precaution to be taken in the matter of specifying the penalty?
The penalty being imposed must be free from ambiguity and vagueness.
Care must be taken in the following types of penalties as shown against each:
Recovery from pay: When ordering such recovery the disciplinary authority
should clearly state as to how exactly the negligence was responsible for the
loss. The order should also specify the following:
(i) Total amount to be recovered
(ii) number of installments
(iii) Amount to be recovered in each installment
Withholding of increment – such orders should give the period for which increment is withheld and
whether the withholding will have the effect of postponing future increments.
Reduction to a lower stage in the time scale of pay: Orders of this kind should indicate the
following:
(i) the date from which the order will take effect;
(ii) the stage in the time scale of pay in terms of rupees to which the pay of the
Government servant is to be reduced;
(iii) the period, in terms of year and moths, for which the penalty will be operative;
(iv) Whether the Government servant will earn increments of pay during the period of such
reduction; and
(v) Whether on the expiry of such period, the reduction will or will not have the effect of
postponing the future increments of his pay.
United Bank Of India V. Biswanath Bhattacharjee 2022 LiveLaw (SC) 109
“where the findings of the disciplinary authority are not based on evidence, or
based on a consideration of irrelevant material, or ignoring relevant material,
are mala fide, or where the findings are perverse or such that they could not
have been rendered by any reasonable person placed in like circumstances, the
remedies under Article 226 of the Constitution are available, and intervention,
warranted.”
UNION OF INDIA & ORS. VERSUS MANAGOBINDA SAMANTARAY
2022 LiveLaw (SC) 244
“Quantum of punishment is within the discretionary domain and the sole power of
the decision-making authority once the charge of misconduct stands proved.
Such discretionary power is exposed to judicial interference if exercised in a
manner which is grossly disproportionate to the fault. Writ jurisdiction is
circumscribed by limits of correcting errors of law, procedural error leading to
manifest injustice or violation of principles of natural justice.
On merits of the quantum of punishment imposed, the courts would not interfere
unless the exercise of discretion in awarding punishment is perverse in the sense
the punishment imposed is grossly disproportionate.”
”
Appeal-
The Government Servant shall be entitled to appeal to the next higher authority within
90 days from the date of communication of impugned order.
The Appellate Authority may:-
(a) confirm, modify or reverse the order passed by such Authority; or
(b)direct that a further inquiry be held in the case, or
(c) reduce or enhance the penalty imposed by the order;or
(d) make such other order in the case as it may deem fit.
No order imposing or enhancing any penalty shall be made unless the Government servant
concerned has been given a reasonable opportunity of showing cause against the proposed
imposition or enhancement, as the case may be.
