HOW TO CONDUCT A DEPARTMENTAL INQUIRY By Amitabh

HOW TO CONDUCT A DEPARTMENTAL INQUIRY By Amitabh Joshi, Dy. Director, AR E-mail: saiamitabhjoshi@gmail. com

Organisation of the Presentation • • Examination of complaints Preliminary Enquiry/Investigation Drafting and issue of charge-sheet Memo. Minor penalty proceedings Major penalty proceedings Inquiry proceedings Consultation with CVC/UPSC Order imposing penalty or exonerating the CO under the CCS (CCA) Rules, 1965 • Departmental proceedings under the Pension Rules

EXAMINATION OF COMPLAINTS Sources of complaint: - (1) A colleague or jealous/inimical colleague or acquaintance or any other person, (2) Complaint received through M. P. /MLA, (3) Complaint received through CVC or CBI, (4) Acts of omission and/or commission on the part of the Govt. servant concerned referred to Vig. /Disc. Cell by by Estt. /Admn. Branch. For example, irregularities in LTC/TA claim, submission of false caste certificate, penalty imposed by Chief Information Commissioner, report of arrest of a Govt. servant in a criminal case or his conviction by a court of law, etc.

(Contd. ) Sources of complaint: - (4) Complaint of sexual harassment (5) Complaint of discrimination, etc. by a member of SC/ST category. (6) Acts of omission and/or commission reported in an Audit Report, (7) Anonymous/pseudonymous complaint, etc.

(Contd. ) • No cognizance to be taken of anonymous/pseudonymous complaints – CVC’s instructions • Identification of acts of misconduct/ lapses alleged in the complaint

PRELIMINARY ENQUIRY/INVESTIGATION • Departmental investigation by Vigilance Section or Disc. Section or by an officer to be designated for the purpose • Reference to an outside agency for investigation such as the CBI, police, etc. • Consideration of the issue of suspension of the employee in case of acts of moral turpitude, financial scandal, criminal offence, etc.

(Contd. ) To avoid unnecessary harassment to the officials, against whom frivolous complaints are received at the time of their promotion/selection, the CVC, vide its circular dated 31. 8. 2004 addressed to the CVOs of all PSUs/PSBs, has decided that: (a) As a rule, complaints/cases which are more than 5 years old and no action has been taken till then, should not be investigated. However, the limit of 5 years will not apply to cases of fraud and other criminal offences; and (b) No cognizance should be taken of any complaint which is received 6 months prior to the initiation of selection process for senior posts.

Drafting and issue of charge-sheet Memo. • CVC to be consulted wherever necessary for their 1 st stage advice • Charges to be definite and specific, and not general, vague or non-specific • Format for minor or major penalty proceedings is given in the CCS (CCA) Rules, 1965 • An act reflecting on integrity will normally warrant major penalty proceedings.

(from pre-page) • Articles of Charge, Statements of Imputations of Misconduct, List of Documents and List of Witnesses to be drawn up carefully for major penalty action. • Minor penalty charge-sheet Memo. to be issued with Statement of Imputations of Misconduct only. • Original documents to be collected as evidence as far as possible and kept safely in Vig. /Disc. Cell. • Charge-sheet Memo. to be signed by the competent disciplinary authority himself/herself or by an authorized officer under the rules/regulations where the President/Central Government is the Disciplinary Authority

(Contd. ) WARNING, REPRIMAND, ADVISORY, ETC. Two types of warnings: - (1)Non-recordable – A copy of it is not placed in the ACR dossier. (3)Recordable – A copy of it is placed in the ACR dossier.

(Contd. ) VIGILANCE CLEARANCE The Government have issued revised guidelines for issuing vigilance clearance, vide Department of Personnel and Training’s O. M. dated 14. 12. 2007 (copy is available under the heading, “Conduct/Discipline Rules” on the website, dtf. in.

(Contd. ) Penalties enumerated in Rule 11 Minor Penalties: (i) Censure; (ii) Withholding of promotion; (iii) recovery from pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; (iii a) Reduction to a lower stage in the time scale of pay by one stage for a period of not exceeding three years, without cumulative effect and not adversely affecting the pension; (iv) Withholding of increments of pay.

(Contd. ) Major Penalties: (v) Save as provided for in clause (iii) (a), lower stage in the time scale of pay for a specific period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not have the effect of postponing the future increments of pay; (vi) Reduction to lower time-scale of pay, grade, post of service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade, or post or service from the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service;

(Contd. ) (vii) Compulsory retirement; (viii) Removal from service; and, (ix) Dismissal from service.

Rule 16 – Minor penalty proceedings • Copies of the documents to be provided to the charged official on request for preparing his/her reply/statement of defence • Provision for holding full-fledged inquiry under Rule 16 of the CCS (CCA) Rules • Speaking Order to be passed by the competent disciplinary authority

Rule 14 – Major penalty proceedings • Copies of the listed documents to be provided to the charged officer for preparing his/her reply/written statement of defence. • Repeated requests for extension of time for submitting reply may not be considered. • Issue of common proceedings or simultaneous proceedings is also to be considered. • On denial of charges, Inquiry Officer and Presenting Officer are to be appointed.

Inquiry proceedings (Preliminary Hearing) - Admission/denial of charges by the CO before the IO. Upon denial, regular oral inquiry will be conducted by the IO. - The CO to be provided an opportunity to engage a Defence Assistant to assist him in the inquiry. - IO will fix date and time for inspection of the listed documents, normally in the office of the PO. IO will give opportunity to the CO to submit a list of additional documents and a list of defence witnesses, indicating relevancy to the charges. - After completion of inspection of documents, all the prosecution and defence documents will be taken on record by the Inquiry Officer and each document will be assigned an Exhibit No.

(Contd. ) Specimen of document taken on record Ex. P. 1 Signature of IO with date Ex. D. 1 Signature of IO with date

Regular Hearings (RHs) • Recording of daily order sheet by the IO • Recording of evidence –Depositions of witnesses -- Examination-in-Chief -- Cross-examination -- Re-examination -- Further cross-examination -- Further re-examination -- Questions, if any, by the IO -- Questions – simple and leading -- Copies of depositions to be provided to CO/PO

(Contd. ) * Submission of Statement of Defence by the CO on conclusion of the prosecution case * Defence to adduce evidence on its behalf by way of examination of defence witnesses and documents * After examination of all witnesses, the IO will give opportunity to the CO to appear as a witness in his own case or his/her general examination would be conduced by the IO. (no cross-examination by IO). * Questions by IO to the CO as witness. * IO will direct the PO/CO to submit Briefs within such time as may be specified by him * Thereafter, IO will write his report and submit it to the Disciplinary Authority.

(Contd. ) • PO’s Brief • Defence Brief • Inquiry Officer’s Report - Background, details about hearings, witnesses, etc. , - Prosecution case - Defence case - Analysis of evidence - Findings

CONSULTATION WITH THE CVC/UPSC l Obtaining the advice of CVC • First Stage – before issuing charge-sheet Memo. Second Stage – after IO’s Report is available • Reference can be made for reconsideration of CVC’s advice, in suitable cases. UPSC to be consulted before imposition of penalty, wherever necessary.

• EX PARTE INQUIRY • REASONABLE OPPORTUNITY • NATURAL JUSTICE • BURDEN OF PROOF • PREPONDERANCE PROBABILITIES OF

Order imposing penalty or exonerating the CO • The Disciplinary Authority would consider the nature of charges, facts and circumstances of the case, evidence on record, Brief of PO and submissions of the CO with regard to findings of the IO. • The penalty has to be commensurate with the gravity of the misconduct. The CO to be exonerated, if charges are held not proved. • A speaking order imposing the penalty to be issued under the signatures of the Disciplinary Authority

DOPT’s O. M. dated 1. 8. 2007 – Simultaneous action of prosecution and initiation of departmental proceedings • In serious cases involving offences such as bribery/corruption, etc. , action should be launched for prosecution as a matter of course. Disciplinary proceedings – the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be. Criminal proceedings – the question is whether the offences registered against the Govt. servant are established and if established, what sentence can be imposed on him.

(Contd. ) • In serious nature of cases like acceptance of illegal gratification, the desirability of continuing the concerned Govt. servant in service in spite of the serious charges levelled against him may have to be considered by the Competent Authority to proceed with departmental action. • If the charge in the criminal case is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental. . .

(Contd. ) proceedings till the conclusion of the criminal case. If the criminal case does not proceed and its disposal is being unduly delayed, the departmental proceedings, even if they were kept pending on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date, so that if the employee is found not guilty, his honour may be vindicated and in case he is found guilty, the administration may get rid of him at the earliest, if the case so warrants.

(Contd. ) • Quoting the Apex Court’s judgment, DOPT has clarified that stay of disciplinary proceedings is not a must in every case, where there is a criminal trial on the very same charges and the concerned authority may decide on proceeding with the departmental proceedings after taking into consideration the facts and circumstances of each case and the guidelines given by the Hon’ble Supreme Court.

Departmental proceedings under the Pension Rules • Rule 8 – Pension subject to future good conduct • Rule 9 – (i) Event or transaction within 4 years before the institution of departmental proceedings will attract action under the Pension Rules; (ii) Sanction of the President necessary for proceedings under the Pension Rules