Regarding dept inquiry ccs(cca) 1965 rules
Kapil Sethi
(Querist) 10 January 2013
This query is : Resolved
I was working in a central govt dept and got VRS on 3rd Apr 2006 to get settled in Canada permanently with my children. Got all retirement benefits and my pension was also fixed. Informed my office of my Canadian address on arriving Canada in May 2006.
On 25th May 2007 received a Memo containing a charge against me under rules 14&15 of CCS(CCA)1965 & Rule 9 of CCS (Pension Rules)1972
Requested for some documents for preparing a meaningful statement of defence, but was refused.Honouring the decision a Statement of Defence was sent to the office on 2 Jan 2008.
Was informed about setting up an Internal Inquiry on 20Jul 2008
I have now been asked to come for a Preliminary Hearing (PH) in Feb 2013 and based on that they would decide for Regular Hearing. It may take any amount of time.
I also want the case to be closed as I feel I am just a victim of some manipulative tactics and have not done anything against the interest of my office. I have a clean record of 31 years of service.
I am not employed and have no income of my own & dependent on my married daughter. What ever pension I get I give it to them to partly compensate our expenditure.
I can not afford coming to India and stay there for the Internal Inquiry. I have no one left in India and have no place to stay there. I had never imagined such an episode in my life, as I was known for hard work and honesty.I though want to finish off the case as I am getting feelers that if I don't go to attend the Preliminary Hearing they may make a cut in my pension. I am however not sure.
I may also inform that presently I am a citizen of Canada. Pl help.
It would give me a great satisfaction if respected experts can help me coming out of such a situation. I shall always remain thankful for their advise. God Bless !
Dr G V Rao
(Expert) 10 January 2013
Sir, file a statement of defense in detail denying the charges as false (u need to decide on the falsity) and await reply. In case they are not convinced, then u could file a Writ in the relevant High Court seeking quashing of the Charge memo. Find a good service lawyer and go ahead. Good luck...
Raj Kumar Makkad
(Expert) 10 January 2013
As your presence is sought in preliminary enquiry after a very long gap so better to inform your department you inability to take part therein due to your ill health and do pray to send the copies of the proceeding to you so that you may adopt the next course of action.
First of all let the preliminary enquiry be completed and then thnk over whole issue again.
You may even can appoint any authorized person in India to watch the proceedings of preliminary enquiry on your behalf if department permits for this.
Guest
(Expert) 10 January 2013
Dear Kapil,
I would like to differ with the views of Dr. G.V. Rao, as neither submission of a defence statement, nor filing a case with HC would help the Charged official. You had already submitted your defence statement only after which the regular inquiry has been ordered by appointment of the inquiring authority. Moreover, the retiree being a Central Government employee, his case falls within the jurisdiction of CAT, not HC. But still CAT would not entertain your application until the due processes of departmental inquiry are completed. Rather, you would just be inviting more of wrath and prejudice of the authorities, if you go to the CAT at this premature stage.
Presently, when the inquiry has already been set up by appointment of the Inquiring Authority, there is no sense in submitting any statement of defence, as the proceedings would start for oral hearings and recording of evidence. If you don't attend, the case can be decided ex-parte against you by assuming that you have nothing to bring forward to defend your case. That may harm you to much extent.
As regards your assumption about the Charge Sheet having been issued under Rule 14 & 15 of the CCS (CCA) Rules 1965, that has no standing. A Charge Sheet is issued against a retired official under Rule 14 of the CCS (CCA) Rules read with Rule 9 of CCS (Pension) Rules. Rule 15 has nothing to do at this stage and would also not appear in the Charge Sheet, as that comes in to picture only after the Inquiry Officer submits his inquiry report after conduct of due proceedings as per the provisions detailed in Rule 14, as rule 15 relates to action on inquiry report of the Inquiring Authority.
About your information on mere reduction of pension as penalty, that is not true. Although in most cases pension is reduced, but the penalty after the charge is proved depends solely upon the gravity of the offence. Penalty can be reduction of pension in full or in part for some specific period or you can even be treated to have been dismissed disentitling you any pension, if the offence is treated to be the gravest one.
So, instead of taking any chance, it would be better to defend your case.
For that purpose at first, stating your circumstances and being resident of Canada, you can send your request to the Disciplinary Authority to change the inquiry officer and appoint some officer working in the Indian Embassy at Canada, as the inquiring authority.
If your request is not accepted, better nominate some defence assistant, who should be knowledgeable in rules, regulations and procedures of your department. If you are unable to come to India, give him your power of attorney to represent you to act on your behalf during the inquiry proceedings. The power of attorney should be notarised and attested by the Indian Ambassador/ Consulate at Canada to make that valid in India.
But all that need be done before the date or preliminary hearing. Departmental Inquiry being a time bound programme, you should not lose any time to make your arrangements to defend your case. You may however request the I.O. by endorsing a copy of the letter to the disciplinary authority to postpone the preliminary hearing for some time by stating your circumstances.
Raj Kumar Makkad
(Expert) 10 January 2013
I do agree with additional rule position provided by Ld. Dhingra G.
Sudhir Kumar, Advocate
(Expert) 10 January 2013
While agreeing with Mr Dhingra and Mr Makkar I would add as under
There is no provision that the Defence Asstt can work in your absence. That may be illogical but it is so. Although there is no positive provision which forbids him to act in absence of accused but generally the Def Asstt is not allowed to appear in absence of charged official.
In case you suffer from ill health (which you did not say in your query) you can request for inquiry in Indian High Commission. Even CVC also at times conduct inquiry at the place where charged official is. Although there is no law in support of this request but this can be a reasonable request.
I further believe that since you have stated your address in Canada (may be getting pension through Indian High Commission) you are entitled to TA/DA for each date of hearing requiring your travel/stay in India. You can get it clarified from deptt at this stage itself.
Further you have not stated nature of allegation so it cannot be perceived whether it could be a case of 100% cut in pension.
Further you have also not indicated the date of alleged misconducts so it cannot be stated if the chargeshet is time barred. No pensioner can be charged for an offense which is more than 4 year old.
Kapil Sethi
(Querist) 10 January 2013
Dear Mr Dhingra
Thankyou so much for your sincere advise and help.I am indeed obliged. But I have few more facts in mind,if you can please guide me on that
1 I feel that Dicipilinary Authority has not been informed about my settlement in Canada before the charges are made.
2 I have recieved the message through an email after 4 years of my Statement of Defence
3 The actual letter is addressed on a wrong address where I used to stay 5 years back and has not yet reached me.This is inspite that I have informed my office about the latest address and last letter regarding appointing Inquiry Officer was recieved on my existing address.
4 Pl also help me knowing is there any possibility of asking for travelling allowance to attend the Inquiry.
5 Infact this is a case which they say"Mountain out of a molehill"and is not of any standing.
Thanks again for your help.
Kapil
Raj Kumar Makkad
(Expert) 10 January 2013
If you have already intimated the latest address to the disciplinary authority then legally you are entitled for the grant of TA/DA but better to get it confirmed from the department and do move an application in this regard to DA with copy to EO.
You have still not mentioned the facts of the matter.
Kapil Sethi
(Querist) 10 January 2013
Dear Mr Kumar
I indeed am thankful to you for your elaborative reply. I am sure what you have said is in the interest of natural justice. Pl guide me little further. Given below are the details as desired by you:
1 I am in good health and can travel to India.I am also confident in defending my case as it has been created out of nothing.
2 Chargesheet was recieved by me just 3 months before completion of 4 years.The issue is dated 03Aug2003 and charge was made in Mar07 and delivered to me May07
3 While taking approval discipilnary authority was not informed about my permanent settlement in Canada
4 As regard alligation I may explain here. I was asked to go to a company to take a sample & to seal and send it to a lab for testing. And also draw exactly a similar sample,seal with my code and signs and keep it with the company for their use in case of any misplacement or dispute.
Now the sample which I sealed & sent for testing was failed in lab.
The sample kept with the company for four years was brought by my office just before 15 days of my VRS and they alleged that I had joined hand with the firm.
Along with me they had done it with another person also who was later exonerated of charges as he was in India and his Inquiry was completed long back.
I hope I am able to send you the complete information. Incase any thing which helps you to give further advise pl do tell me.
Sitting far away these are the only memories left for me about my motherland.
Thankyou again for your co-operation and guidance.
Pl let me know if I am of any use to you or anyone when here in Canada.
Kapil Sethi
(Querist) 10 January 2013
Dear Mr Makkad
Thanks for your advise. I may inform you that my present address was informed to the dept in June2009 and there after I am getting all my letters regarding tax & pension etc on my existing address. And every year in Nov I subbmit a Life Certificate signed by the Consulate General of Canada giving complete information including my address. As you are aware this is a requirement to continue my pension. If you want to know any other aspect which helps you to give your advise pl do let me know.
Thanks again for your help.
Guest
(Expert) 11 January 2013
Mr. Sudhir,
You would like to appreciate that narrow thinking is always dreadful to natural justice. Unless rules or law contain any negative provision, the concerned law or rules should not be taken in negative sense. In this context, you would like to review the position that except for the preliminary hearing, nowhere else it has been provided that the Government servant should appear in person. Further, Rule 14(8)(a) very clearly states that the Government servant may take the assistance of any other Government servant to present the case ON HIS BEHALF. That does not mean that he should present his case on his behalf only in his presence. About your contention, "GENERALLY the Def Asstt is NOT ALLOWED to appear in absence of charged official." I can only say that the contentions of some narrow minded inquiring authorities, who think that the defence assistant cannot be allowed in the absence of the C.O., cannot be taken as a rule of law when CCS (CCA) Rules or any Government of India's decision/ instruction do not prohibit the Defence Assistant to appear in the absence of the charged employee.
You must be knowing that whenever a charge sheet is issued to an employee, most of the inquiring authorities, instead of waiting for the outcome of the evidence, form their considered view that the employee must have committed grave offence, otherwise charge sheet would not have been issued. Contrarily, as per my personal experience, as gained for the last more than 32 years (since 1980), almost about 90% charge sheets are deliberately fabricated with fake and false charges on account of, either the bias and prejudice of some superior authorities, or due to incomplete, faulty or purposely misguided & targetted investigations by the investigators.
I hope you would like to take the positive views in the light of the spirit of rules.
Guest
(Expert) 11 January 2013
Dear Kapil,
I have not yet come across any provision for grant of TA/DA to the charge-sheeted retired Government servant. Of course, there is a provision for grant of TA/DA to the reired Government servant, when he is called to render evidence in a case against any other Government servant.
Kapil Sethi
(Querist) 11 January 2013
Dear Mr Dhingra
You have rightly said & I believe even my case is also like those 90%. I am confident that it has been made just out of jealousy to harass me.
1.As regards TA/DA I may refer you to the Chapter XIII of CVC manual which I could find on line at the following link:
http://cvc.nic.in/vigman/chapterxiii.pdf
and seek your valuable opinion on this.
2. I have just recieved an email to attend the Inquiry.Do you suggest me to correspond with my office just on the basis of email or I should wait for their letter to come.
Thanks for your help and Regards.
Guest
(Expert) 11 January 2013
Dear Kapil,
The CVC Manual in full is readily available with me. The chapter in the referred link speaks about TA/DA to Government servant (serving, NOT retired), while that speecifically refers to the retired Government servant for the purpose of appearing for evidence or in defence in others cases. Although no TA advance is permissible to a retired employee, but as an experiment, you may better send your application for TA Advance to the competent Authority and watch for his response on that.
Notice whether received by post or through emil is considered as notice duly delivered. You will have to attend the preliminary enquiry.
Kapil Sethi
(Querist) 12 January 2013
Dear My Dhingra
Thankyou for your interest and guidance.I am clear on all aspects. Just to help me little further if you can please give your opinion on the following:
Clause 8 of Chapter XV of CVC manual which is very clear on TA/DA for retired employees
I do honour you my learned brother for your knowledge and ability to help others. God Bless You!
Sudhir Kumar, Advocate
(Expert) 12 January 2013
Yes Mr Dhingra I agree with your interpretation of Rule 14(8)(a). But unfortunately life is harsher than it is should be. Generally inquiry officers are acting negative on this aspect. Presence of accused is his right and not compulsion. But generally IOs adjourn the inquiry if the CO is absent and even if DA is present. Some authroities derive sadistic pre-47 pleasure.
Guest
(Expert) 12 January 2013
Mr. Sudhir,
I generally agree with your observation, bur we cannot totally blame the I.O., if the defence assistant is not strong enough to insist for ex-parte inquiry and lodge his protest if the I.O. tries to exclude his request in the daily order sheet along with his own decision on the isue raised by him. I have observed, most of the defence assistants are either weak in ruling position or as a matter of submissiveness towards the I.O, don't resist any wrong move on the part of the P.O. & I.O., with the intention, not to offend the I.O. My conviction is, if the I.O. is not fair in conduct of the inquiry proceedings, he should also not be spared by not bringing his acts of bias or partialism. If the I.O. tries to omit any objection on the part of the C.O., as of his sincere duty, the defence assistant should bring the matter on record in writing before the I.O. with copy to the Disc. Authority.
The question arises, if the prosecution & I.O. can think to continue proceedings ex-parte in the absence of the C.O., why the inquiry cannot be held ex-parte in the absence of the P.O.? Why double standards in the inquiry proceedings on that count?
Guest
(Expert) 12 January 2013
Dear Mr. Kapil,
Of course, as per para 8 of Ch. XV of the manual, a retired Government servant is entitled to TA on travelling, but for th shortest distance between the place of his (declared) residence/home town to the place of inquiry or between the place other than the place of residence/home town and the place of inquiry. Better get that point confirmed in advance from the Disc. Authority as well the DDO of your past office whether they would allow you TA from Canada or not.
Kapil Sethi
(Querist) 12 January 2013
Dear Mr Dhingra
Many thanks for clarification. In my case I had informed my Canada residence address right after reaching here on 3rdMay 2006.I got retired on 3 Apr 2006. The chargesheet was also recieved on the address in Canada during May 2007.
Since we are staying in a rented apartment,we changed our apartment in 2009 and informed about my new Canadian address to my office in Oct2009
I am sure before taking approval of issuing chargesheet they have misguided the DA and not put up this fact to his knowledge. This was delebrately done by a person who just wanted to harass me on a trivial issue. But I do believe I have now to come out of it.
Unfortunately this is very common in our country as you rightly said.
As advised I will write to the DA for considering giving me TA.
Now I seek your advise in case they don't agree to my request,what should be my stand.
Though I know everything in my defence and am confident to defend my case.
I may also inform you that the letter has been sent to a my earlier canadian address and all other correspondence about Tax etc is sent on my latest canadian address since 2009.
Thanks again my friend.Looking at you I feel still there are some good people left in our society.
Raj Kumar Makkad
(Expert) 12 January 2013
We all are being benefited with this unending logical discussion on the subject. thanks to participants.
Guest
(Expert) 12 January 2013
Even if the charge sheet was addressed to your last address of Canada, that becomes the proof of your having notified your address of Canada.
So, according to the wording of the related Para of the CVC Manaul you would be legally entitled to claim TA from Canada, as no specific emnargo has been put in the Government's decision about claim of TA for journeys from & to the last known changed address beyond Indian territories.
Guest
(Expert) 12 January 2013
But, according to my guess, you will have to undergo a bitter fight to obtain due permission of the competent authority and claim TA for foreign travel (from & to Canada) due to little or partial knowledge of rules of the processors of the case/claim, as now a day instead of going through the main rule books, most of the Officers/ officials of Government offices try to depend solely upon Swamy's Handbook or Nabhi's Referencer, which are meant to provide gist of knowledge of Government rules to the laymen, not the implementors of rules.
Kapil Sethi
(Querist) 13 January 2013
Dear Mr Dhingra
Thankyou so much for the great inter-action & help. I value your time & efforts and strongly feel in case I had to come to India I will make it a point to meet and sit with you. Not for my case but as a good human being. As regard my case I am fully confident that I will be able to defend as it is made out of nothing.
Now the important question is :-
In case they don't give me TA from Canada what I should do?
Will the law favour me? Here I may refer Article 311(2) and also 1.1 of CCS(CCA)Rules1965
I am happy Mr Makkad is enjoying our discussion. My regards to him too.
Guest
(Expert) 13 January 2013
Dear Kapil,
Thanks for showing your willingness to meet me on your visit to India. You will be welcome any time you happen to visit India.
About your TA claim, if the authorities don't pay your travelling expenses to India, you will have to claim that through a court case, where I am confident that you would win. However, if some authorities, including the DDO and his staff, are rational in their dealings, you would not be expected to fight your case in the court of law to claim your TA bills. But prior sanction from the competent authority would be necessary for journey from and to foreign destination. I hope your colleagues/friends in the organisations would be able to help you in that process.
About your query on Art. 311(2) and Rule 1.1 of CCS (CCA) Rules, it is not understood what actually you want to get clarified. Proper observance of prescribed formalities under the provisions of Rule 14 of the CCS (CCA) Rules, itself, would satisfy the provisions of Article 311(2). Contrarily, there is no such rule 1.1 of the CCS (CCA) Rules. However, if you intended to refer to Rule 11 about penalties, the penalty of dismissal with retrospective effect at this stage cannot be resorted to unless the offence is proved to be of gravest nature. Only in rarest case penalty of dismissal can be resorted to after retirement. Rest depends upon effective defence in your case by some knowledgeable & stong-willed defence assistant.
Sudhir Kumar, Advocate
(Expert) 13 January 2013
in case TA/DA is not paid it will amount of denial of opportuinity
Guest
(Expert) 13 January 2013
Dear Kapil,
You may better send your tour program with request to the Disciplinary Authority to cause santion of the competent authority for your tour from Canada to the inquiry place and back to Canada for the purpose of attending inquiry. Also endorse a copy of the same to the I.O. with the request that he may refix some date of preliminary inquiry only after sanction of your tour from & to Canada. Let every inquiry related issue be formal. That would help you later in appeal or court case in case you are not allowed appropriate opportunity to defend your case.
Kapil Sethi
(Querist) 13 January 2013
Dear Mr Dhingra
Thanks again for your valuable advise.Yes I can do this as suggested.
As regards Article 311(2) I was refering to 3.5 of Chapter XI of CVC Manual i.e denial of opportunity to have access to documents which have relevenace to the case.
Your experience speaks in your advise.
God bless you my friend.Pl keep this spirit alive.
Guest
(Expert) 13 January 2013
Dear Kapil,
Please go through rule 14 according to which the inquiry is to be conducted step by step. The stage for additional documents for defence point of view is also set in that rule, but only after supply of the listed documents on or after the stage of preliminary hearing. You should not expect anything to happen prematurely. Any reference to the provisions of CVC Manual is not called for and has no relevance at this stage, as the I.O. is bound to go by the steps provided in Rule 14 only. So, first think about your attendance on preliminary hearing only and only thereafter think about your defence strategy. Otherwise, you will get everything mixed up and confused.
Kapil Sethi
(Querist) 14 January 2013
Thanks & Regards Mr Dhingra. I will take that in mind. But I am sure for TA Claim I can give reference to CVC manual even at this stage and put up my tour programme as advised.
Guest
(Expert) 14 January 2013
Of course for TA claim. Even that provision would also be available in FR & SR Pt.-II pertaining to the Travelling Allowance Rules. However, there would not be any issue of allowing of TA claim to a retired Government servant, but the authorities are likely to feel the stumbling block on the issue of travel of the retired charged officer beyond Indian territories.
Sudhir Kumar, Advocate
(Expert) 14 January 2013
FR&SR is he property authority of TA/DA. CVC manual is mere reproduction of rules
Kapil Sethi
(Querist) 14 January 2013
Dear Mr Dhingra
Thanks again and need your wishes. You will always be in my prayers my friend for the timely help you extended.May God Bless You!
Guest
(Expert) 14 January 2013
My well wishes are always with the right person for right cause.
Kapil Sethi
(Querist) 15 January 2013
Thanks !I undersatnd and value your opinion.
Guest
(Expert) 15 January 2013
You are welcome.
P. Venu
(Expert) 17 January 2013
GI, MF, UO Note 3221-E IV dated the 20th November, 20th November 1961 provides for TA for attending a departmental inquiry against a public servant after retirement:
" A retired Central Government servant required to attend Departmental Enquiry instituted against him may be allowed travelling allowance as on tour by by the shortest route for the journey in connection with the enquiry from his "home town" (declared as such for the purpose of LTC ...)to the place of enquiry and back. Alternately, in case the person concerned has taken up residence after retirement at a place other than his "home town", he may be allowed travelling allowance from such place to the place of enquiry and back. The place of residence means the place for which the post-retirement TA claim was drawn or the place (Bank/Treasury) from which the pension is being drawn. However, if at the time of receipt of the summons, the retired servant Government is at a place different from his "home town" or his place of residence, the travelling allowance should be restricted to the shorter of the two journeys between that place to the place of inquiry and the "home town" or place of residence to the place of enquiry.
"The travelling allowance shall be regulated in accordance with the pay of the post held by the retired Government servant immediately prior to retirement.
"No advance of travelling allowance should, however, be paid in connection with such journeys"
As such, the author does not appear to be entitled for TA for the entire journey from Canada or for grant of advance.
Kapil Sethi
(Querist) 18 January 2013
Dear Mr Venu
Thanks for addition of the above information regarding TA. In my case I have declared Canada as my my home town after the retirement. I was though not entitled for Post retirement TA as I took VRS.
As for place of drawing pension there is no provision for getting pension in Canada.
Summons were however recieved in Canada.
I seek your opinion in spite of what is said in the rule should I write to the dept for giving TA?
I want to touch another point as given here below:
Normally at the time of issuing chargesheet to a retired employee prior permission is obtained by the president or from a person authorised on his behalf as per ccs(Pension)Rules 1972 and he is to be informed about the place of my residence to enable him to decide the place of Inquiry etc. This has not been done in my case.
President in such cases is expected to use his powers as given in Rule3(2)of ccs(ccs)Rules 1965. In that case rules will not be applied on me as I am here.
As a Canadian Citizen I have my own doubts whether these rules apply on me or not?
Seek your advise can I ask my dept to get it clarified under Rule3(4)(a)of
cca(ccs)Rules 1965
I request you and all other members on the forum to please give their opinion and guide me further by their sincere advise.
Thanks!
Guest
(Expert) 18 January 2013
Retirement, whether on superannuation or by virtue of VRS, is retirement for the purpose of CCS (Pension) Rules or CCS (CCA) Rules.
About your statement that prior permission has not been obtained from the President of India, on what basis you have presumed that the permission was not taken?
For your information, none of the disciplinary case is practically sent to the president of India for approval. Permission on behalf of the President is granted by the Minister of the concerned Ministry and as such, the permission is taken as granted by the President. If that process has duly been undertaken and the charge sheet contains the closing words, "By order and in the name of the President" there is nothing wrong in issue of charge sheet issued to you, even if issued under the signature of an Officer of the rank of an Under Secretary.
So, instead of going in to trivial issues, better concentrate on the solid points of your defence.
Raj Kumar Makkad
(Expert) 18 January 2013
For the purpose of sanctioning of initiation of disciplinary proceeding is vested in proper officer of the department and such power is used on behalf of President of India,
Kapil Sethi
(Querist) 18 January 2013
Dear lawyer friends
I think I am not able to put forth my point properly so that you can understand well.
I am aware and can never think that all cases will go to president.I have already used the words President or a person on his behalf. That part is quite clear to me friends.
Permission has also been taken and the letter is signed by a under secty. I have no doubt on that.
What I am trying to imphasise is that my dept has not informed the decision making Authority about the fact that my Home Place after the retirement is Canada thereby deprived me of using his powers as given in Rule3(2)of ccs(ccs)Rules 1965. In that case his decision would have been different.
Also deprived me of his using powers to decide the place of Inquiry as Canada
In case of doubt whether CCS(CCA)Rules 1965 apply to a particular person (In this case a Retired Govt official having his permanent residence in Canada) there is a clear provision in the above said rules [Pl see Rule3(4)a] which has also not been exercised.
The charge is thus made by misleading the DA and CA by not informing the facts as above.
Hope I am now able to put forth my point of view my friends.
Thanks again for the great inter-action.
Kapil Sethi
(Querist) 18 January 2013
For your convenience given here below is Rule 3
3. Application
(1) These rules shall apply to every Government servant including every civilian Government servant in the Defence Services, but shall not apply to -
(a) any railway servant, as defined in Rule 102 of Volume I of the Indian Railways Establishment Code,
(b) any member of the All India Services,
(c) any person in casual employment,
(d) any person subject to discharge from service on less than one month's notice,
(e) any person for whom special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the President before or after the commencement of these rules, in regard to matters covered by such special provisions.
(2) Notwithstanding anything contained in sub-rule (1), the President may by order exclude any Group of Government servants from the operation of all or any of these rules.
(3) Notwithstanding anything contained in sub-rule (1), or the Indian Railways Establishment Code, these rules shall apply to every Government servant temporarily transferred to a Service or post coming within Exception (a) or (e) in sub-rule (1), to whom, but for such transfer, these rules would apply.
(4) If any doubt arises, -
(a) whether these rules or any of them apply to any person, or
(b) whether any person to whom these rules apply belongs a particular Service,
the matter shall be referred to the President who shall decide the same.
Kapil Sethi
(Querist) 18 January 2013
Government of India’s decisions :
(1) Persons to whom not applicable –
In exercise of the powers conferred by sub-rule (2) of rule 3 of the Central Civil Services (Classification, Control and Appeal) Rules, 1957 (now 1965), the President hereby directs that the following classes of Government servants shall be wholly excluded from the operation of the said rules, namely :-
MINISTRY OF EXTERNAL AFFAIRS
Locally recruited staff in Missions abroad.
MINISTRY OF TOURISM AND CIVIL AVIATION AND MINISTRY OF SHIPPING AND TRANSPORT
(i) Locally recruited staff in Tourist Offices abroad.
(ii) Work-charged personnel of the Mangalore Projects and the Tuticorin Harbour Projects.
[M.H.A., Notification No. 7/1/66-Ests. (A), dated the 11th April, 1966].
My submission is when 'Locally recruited
staff in Ministries offices abroad' are excluded from the operation from CCS(CCA)Rules 1965. Then there should be no objection for a Retired Govt officer permanently staying abroad to get examption from these rules.
Guest
(Expert) 18 January 2013
When you have not revealed mode and place of your recruitment and the ministry or department to which you belonged, how you can expect opinion on your assumption?
P. Venu
(Expert) 18 January 2013
The Departmental proceedings pertain to the events while the the author was in service. Events subsequent to his retirement are of no relevance. The proceedings have rightly been initiated under Rule 14 CCS(CCA)Rules, 1965 read with Rule 9 of the CCS(Pension)Rules, 1972. It is the Minister who initiates the proceedings on behalf of the President and any authorised Officer (generally, not below the rank of Under Secretary)is competent to issue the chargesheet.
The task in hand for the author is to face the inquiry boldly. A disciplinary proceeding is not necessarily a punishment or harassment; it is equally an opportunity for the public servant to prove his mettle as well as innocence.
Hence, please get ready for the preliminary hearing; deny the charges if not guilty; submit the list of additional (defence) documents and insist that the regular hearing commences within 30 days thereof as required under Rule 14.
The author can defend himself or take the assistance of a competent defence assistant: a serving or retired central Government servant, but not a pleader or lawyer.
The defence assistant is also entitled for TA/DA.
Incidentally, the "home town" referred in the OM dated 20/11/1961 is the "home town" declared for LTC while in service. So also, the author was entitled for retirement TTA as he had taken VRS.
Any how, the issue of the quantum of TA is not material as the author is not eligible for grant of advance. This could be taken care of afterwards. The important task is in attending the inquiry and proving the innocence, if not guilty.
I am not a lawyer, but a serving Central Government Employee.
Kapil Sethi
(Querist) 19 January 2013
Dear Mr Dhingra,
There is no problem in telling my dept etc.
I was in Indore at the time of my retirement and was working there in the technical dept of Ministry of Consumer Affairs.
In case you require any other info pl do let me know.
Thanks & regards.
Sudhir Kumar, Advocate
(Expert) 19 January 2013
Service Rules apply to you. You are not a locally recruited staff of Indian High Commission. You were proper employee drawing proper pension. Had these rules not been applicable to you then no inquiry or chargehseet was needed for cut in pension.
They are excluded because Govt of India does not want to be bound to follow long procedure to dispense with their services if found in any misconduct. They cannot even appeal before CAT. Why do you want to be equated with unfortunate ones.
Guest
(Expert) 19 January 2013
Dear Kapil,
In the wake of the present information, you could well think yourself whether there was any relevance in referring such non-applicable clause to your case when your recruitment did not fall within the category of the locally recruited staff of Ministry of External Affairs and Ministry of Tourism, Shipping & Transport, etc., and other classes of employees mentioned in Rule 3. Question of work charged staff of Mangalore/ Tuticorin projects, having very old history of bygone projects, could hardly touch your service category.
Please be serious in defending your case on solid grounds only, rather than by raising trivial issues, which can supress even your solid points of defence.
Rest depends upon your own wisdom and thought process.
Kapil Sethi
(Querist) 19 January 2013
Thanks Mr Dhingra. I will go by your advise.
What I want to say my friend that chargesheet is based on the misleading information that 'I am present in India' and not in Canada. As I found out the address inside the letter is of India and the outside the enevolpe is of Canada
Since the chargesheet is issued when I am a Citizen of Canada and these rules do not apply to the Citizen of Canada who are locally recruited by our External Affair Ministry in Canada
Simply speaking these rules are not applicable to them only because they are citizen of Canada and are goverened by the rules of this country. If the rules are not applicable to the working,how can these rules apply to a Retired people who are also citizens of Canada
If some one is not clear on this whether the rules apply or not then a clarification can also be sought as there is a provision in these rules to seek clarification in such cases.
It is not the question of my defending case. I am confident to win if I go there. As my case is exactly similar to one of my friends in my dept who was also charged on the same reason on the same day with me and already got exonarated 4 years back. He also happened to be a honoest person.He is continuing with his service.
Since I am in Canada I am finding it very difficult to go to India and the expenditure involved because I am dependent on my married daughter.
This is the problem my friend I am trying out some points as is not feasible to stay there when my complete family is here. I have to stay in a hotel and travel too on my expense. Once I go I am confident the case will be over as it is made only to harass me.
I think I am now quite open with you.
This is more a problem of my circumstances not the case.
Had I been in India I could have boldly gone and defend the case which really has been created my misleading the DA who is not aware that I am in Canada
I think now you will be able to advise me even better.
Even if I stay without defending I know in a much worse case than this a person was punshied with a cut of total Rs 3000 @ of Rs 500x6 months. In our dept they just make such cases with honest people to count there numbers so that the dishonest go scot free.
This is the real story of our great dept and this is the reason I left my country to stay with my daughter here with peace but in vain.
I did not want to share my personal problem on the forum but if it can help my friends giving better advise my life is a open book.
Pl ask any other question also if that helps you solving my problem when here.
Thanks indeed for your help. Pl do put your suggestion as to what I should do in the existing circumstances.
Kapil Sethi
(Querist) 19 January 2013
Today it has happened to me, tomorrow looking at my harassment the corrupt in the Indian Govt Vigilence will try this practice on other retired employees also. Just to increase the number of cases because such cases run for years and they keep enjoying.
I am sure my learned friends in India understand this gimmick and save many other settled abroad like me.
Thanks !
P. Venu
(Expert) 19 January 2013
It is a hard fact of life, more so in public service, that one cannot display honesty on shirt sleeve. In spite of best of the intentions, or may be precisely because of them, a public servant may have to pass through hard times or may be even after retirement. Struggles in the cause of truth and honesty only strengthens the soul.
If the author does not associate with inquiry, the proceedings, the inquiry may be held and decided ex-parte. It could be that the financial impact, even if the matter is decided adverse to him, may be less than the expenses. It is for the author to decide among the options in his best judgment.
Sudhir Kumar, Advocate
(Expert) 20 January 2013
You are sadly mistaken.
You never said that :-
(i) You were at the time of recruitment residing in Canada.
(ii) You served Indian High Commission tourist office at Canada.
The notification that you re referring is intended to gag the defence of such employees and you want to join their band wagon whereas the law requires that you should be given opportunity to defend like any other pensioner of Govt of India.
If you feel that the Service Regulations are not applicable to you then it is cler that even CCS(Pension) Rules also do not apply to you and you must stop drawing pension forthwith.
The locally recruited employees are not entitled for protection of CCS(CC&A) Rules and even during service they can be thrown out any time and even after retirement their pension can be stopped abruptly and they even do not have a right to move to CAT.
Is this the fate you want to enter whereas Govt of India feels that you are entitled to be given right of defence before taking any action on your pension.
You instead of availing the benefit interested to spoil the matter further.
You ar efurther mistaken that there can be a cut in pension for Rs3000 fro six months. It can be full cut for entire life.
Just imagine if you do not join inquiry and it is held ex-parte and results in 100% cut in pension then what remedy you have got?
You will file an Appeal which is futile because during inquiry you are not going to refute the evidence adduced and you move to CAT only to enrich your lawyers.
Kapil Sethi
(Querist) 20 January 2013
Dear Mr Kumar
I am sorry you have not understood my point of view.
I have already sent the matter to Secy. Ministry of Home and today got reply that they will look into the matter and inform whether the Rules apply to the Catagory of "Retired Govt Employees who are Citizen of Countaries Abroad"
There is infact a provision in the said rules to ask if the rule applies for particular catagory of person or group and I have used that provison.
At times we should think beyond what we do in routine.I have been put in problem so I
shall try all means as I have time to attend Inquiry.
I also believe in a highly democratic country like India, there is always a provision in the law to get justice for the honest and the poor.
I fail to understand the logic behind going to India for such a menial job which has no base and can be finished in 15 Minutes as I know my case very well.
I feel any sensible person would not make others fearful without having the complete knowledge of the case and the department.
I will share the reply of the Ministry of Home on this forum with my valuable friends when recieved.
Pl note that we are Ist human beings than we are professionls. If we can not act positive at least we should not go negative without understanding the logic behind the point.
I may share with my friends here at one occasion I had to go upto the Prime Minister Secretariate to get justice in my official work (not personal)where Minister concern was corrupt and the case was decided in my favour by them.
In my opinion:
Victory is not based on the circumstances around you;
victory is based on the God's Spirit with in you!
Thanks again for your inter action.
Kapil Sethi
(Querist) 20 January 2013
Dear Mr Venu
Thankyou so much for saying so. I am also thinking in the same direction. Because I have time for Inquiry I am trying to have inter action with people like you who really under stand the emotion behind the problem.
and then looking at Pros & Cons take final decision.
Pl do share in case you have any suggestion.
Thanks!
Sudhir Kumar, Advocate
(Expert) 20 January 2013
Your expressed that "I feel any sensible person would not make others fearful without having the complete knowledge of the case and the department."
This expression is humiliating. It is you who decide how many facts are to be disclosed and this is a charitable forum where person who know the subject advise you based on the facts disclosed by you.
Having worked in Govt for quite no of years and having dealt with statutory matter you refuse to see logic.
MHA (it is other ministry which deals with the framing of service rules) has told you that they will examine the applicability of the rules to you, ( a routine acknowledgement which Govt deptts send to the petitioners. This does not mean that rules cease to apply and the process initiated under the rules shall cease.
Even if it is decided immediately that rules do not apply to you, the what do you achieve?
You only achieve gagging of your right to be heard by inquiry (and the procedure thereafter under Rule 15,27,19, 29A), if it is decided that rules do not apply to you. You are more keen in you being deprived of the right of being heard rather than avail the right of being heard.
Consequences have been explained. It is your pension and your decision which shall prevail.
Kapil Sethi
(Querist) 20 January 2013
I appreciate your intelligent reply Mr Kumar.
I am highly obliged for the charity you have extended and will remain indebted for ever to the fourm specially you.
I had no attention to humiliate you but my efforts always remain that my friends should always Think Positive.
If you have taken it otherwise I am sorry.
Once again I am thankful to the esteemed members of the forum where I too am a member and would keep contributing my part as I believe everyone has something to contribute.
My only submission to the members is if we do something charitable we should not beat our drums.Instead wait for others to contribute to charity.Having a feeling that only few can contribute and rest are fools. This thinking it self is sufficient to drag us back from the real motive of charity.
God Bless you all. Thanks Again.
Sudhir Kumar, Advocate
(Expert) 21 January 2013
It is upto you to accept or not accept the rule position explained to you.
When person receiving free benefit of experience of you and then tells you that you are frightening him then he has to be told that the advise is charitable.
The forum members have no personal interest to ensure that you continue with the pension. Forum just told you that how hollow your claim is and how dangerous your move is (for yourself) if you succeed.
You have also been advised which is right and safest passage out.
It is you choice as it is your pension.
Kapil Sethi
(Querist) 21 January 2013
I appreciate you and your forum Mr Kumar. You are 100% right as you are the forum.
Anirudh
(Expert) 21 January 2013
Dear Mr. Kapil,
I am a late entrant in this discussion.
Nevertheless, I can straight away pin-point a flaw in your argument.
You say, "when 'Locally recruited
staff in Ministries offices abroad' are excluded from the operation from CCS(CCA)Rules 1965. Then there should be no objection for a Retired Govt officer permanently staying abroad to get examption from these rules."
First and foremost the difference is you were not locally recruited staff in the offices abroad. According to your original post, "I was working in a central govt dept and got VRS on 3rd Apr 2006 to get settled in Canada permanently."
This clearly means that you are not one of those who were locally recruited staff in the offices abroad. Therefore your argument that a retired officer settled permanently abroad should also be treated like a locally recruited staff and the rules should not apply in the case of retired officer, is an argument from your side. But both are not equal is patent. Whether your such argument will be accepted by any court of law is doubtful.
If only your argument is to be accepted, then all one corrupt officer (I am using this as a general term, and in no way referring to you in any manner personally) is to do is to go and get himself settled abroad immediately after retirement - not necessarily at far off Canada or US but in a neighbouring country like Nepal, and get rid of the applicability of the Rules for all his past mistakes seemingly committed during his tenure of employment!
Kapil Sethi
(Querist) 21 January 2013
Dear Mr Aninudh
Many thanks for your clarification I appreciate the way you expressed.
I think you will agree there are rules to punish those also who are locally recruited and are Govt India Employees.They are not set free to do any crime. Those rules may be even stricter than these.
Only thing it becomes easier to defend when you are in your home country.
Thanks again for your anology.
Sudhir Kumar, Advocate
(Expert) 21 January 2013
Mr Anirudh has explained the same thing.
No there are no rules to punish locally recruited staff. They can just be asked not come tomorrow. There is no binding of issuing any chargehseet and inquiry.
The exclusion clause doe snot even talk of the nationality of locally recruited staff.
Guest
(Expert) 21 January 2013
Dear Mr. Kapil,
I wonder to know what you are likely to gain by raising controversy in your case? It is not understood, whether you are concerned with the defence of your own case or to learn about the process of punishment of the locally recruited staff?
If you are so eager, you should know that the services of locally recruited staff in any country are governed by the local laws of the country concerned, which the Indian Embassies/ Consultes cannot ignore. You can apply your laws/ rules only on Indians nationals recruited in India, may be posted to serve in any other country.
Kapil Sethi
(Querist) 22 January 2013
Dear Mr Dhingra
You are right. I just wanted to know when I am Citizen of Canada so what laws should apply on me.
Unforunately the discussion turned negative and without understanding my point of view people kept writting.
The point came to my mind when I was told even when there is a RULE for getting TA but I won't get any because I am in Canada.
I fail to imagine,how many times I can go to attend Inquiry back & forth when in Canada when I can not afford even going once.
In my opinion there must be some provision if not in these rules but some other law which takes care of people like me who are victim of jealousy just being honest and can not even afford going for Inquiry.
Things are different when one is corrupt and has lots of money.
This is un-usual but a burning example how Honesty Works in India.
Raj Kumar Makkad
(Expert) 22 January 2013
Because you served in India so the rules of India shall be applicable in your enquiry matter. So far as the negativity over your query is concerned, I am of the opinion that you also enhanced and unnecessarily prolonged your query on many aspects which ultimately made many experts to reply those points.
So far as the main issue of TA is concerned it has repeatedly told to you that you are entitled to claim that right and without which you are not liable to attend the enquiry. You may demand it prior to booking ur air ticket.
P. Venu
(Expert) 22 January 2013
In terms of SR 146 read with SR 147 and Government of India Order No. 6 under SR 154, a retired Government servant is entitled for TA for attending departmental enquiry against him (and also for perusal of documents) but not for grant of advance therefor.
Sudhir Kumar, Advocate
(Expert) 22 January 2013
Every expert has responded to the query has tried his best to drive home the point that you must defend the inquiry.
I repeat you have to do so in order to protect the pension you receive from Govt of India in lieu of hard work in India.
Canadian law cannot apply on Indian Pension.
If one feels that Indian Laws do not apply to him then he should forthwith stop drawing the pension sanctioned under Indian Law. If he feels pension is his right then he has obligation to protect it as per Indian Law.
i remember there was traffic police advertisement on wearing halmet which said
MARZI HAI APKI AKHIR SAR HAI APKA.
Kapil Sethi
(Querist) 22 January 2013
My sincere thanks to all participants. You all have helped me a lot. In case I am of any help to any one of you or any other member of the forum or their near & dear when here please do inform me.
With Love & Regards.
Raj Kumar Makkad
(Expert) 22 January 2013
Everyone is ready to help you and similarly situated persons as and when required.
Guest
(Expert) 22 January 2013
For the present, I think, you need to help yourself by not stretching the thread too far, which has already gone far far beyond expectations, otherwise the more the thread is stretched, the more you can get confused and get astray from the vial issues.
Sudhir Kumar, Advocate
(Expert) 23 January 2013
Sorry Mr Sethi, I do not think that we had been of any help to you. So far despite best elucidation we have not bee able to persuade you to leave futile path and attend to real problem.
Best thank for the forum will be if you re able to come out of the trouble (either by following our advise or by ignoring it).
