Review......guidance.....
KISHAN DUTT KALASKAR
(Querist) 31 March 2012
This query is : Resolved
Dear Sir,
Whether review of two orders is possible....that is orders of Enquiry Authority and Appellate Authority.
Here the Enquiry Authority and Disciplinary Authority have passed the orders and the accused was reduced to the post of peon.
The accused preferred appeal before Administrated Judge who is High Court Judge in Karnatka of as Koppal District Administrative Judge. At that time the prosecution side here the Registrar Vigilance not preferred any cross appeal seeking enhanced punishment.
The appellate authority that Administrative Judge/High Court Judge passed orders on merits and set aside the orders of both the Disciplinary Authority and Inquiry Authority on 11.2.2009.
All of a suddenly on 22.9.2012 the Registrar Vigilance issued a notice that as to why the said both the orders should not be reviewed and more severe punishment should not be awarded as per the orders of Chief Justice of Karnataka.
In fact the orders of Administrative Judge are final. Some fishy appears in this case.
The said orders dated 11.2.2009 even to this day not given to the accused. Show cause not enclosed with copy of said ordes. It is learnt that as some strictures were passed in the said orders so the are not made public.
My question whether such reviews are possible ?
Whether accused is not entitled for copies?
For how many days the accused should wait to get implimented the said legal orders?
Whether it can be challanged but advocates saying it is premature notice as no action was taken though explanation was submitted by the accused....is it not delaying tactis of Registrar Vigilance?
Is it not high handedness of Registrar Vigilance behind and back of High Court.
Guest
(Expert) 31 March 2012
Dear Shri Kalaskar,
If the disciplinary authority and the enquiring authority are the same, the penalty orders are considered to have been issued only by the disciplinary authority, not by the enquiring authority. The orders of disciplinary authority can be reviewed within a specified peried only, if no appeal case lies there for consideration by the appellate authority.
However, in the case where the disciplinary authority is different than the enquiring authority, there is no sense of reviewing of the orders of the Enquiry Authority, as the enquiring authority is supposed to just conduct the enquiry on behalf of the disciplinary authority and make his recommendations. No separate penalty orders are supposed to be issued by the enquiring authority against the delinquent official/officer where disciplinary authority is different than the enquiring authority.
But, once any order has been issued by the appellate authority in considertion of an appeal of the charged officer, only orders of the appellate authority can be reviewed and there remains no sense of reviewing the orders of the disciplinary authority. That automatically forms part of the orders of the appellate authority.
ABOUT YOUR OTHER QUESTINS--
it is not understood, which copies you are referring to, while the accused is already supposed to be in possession of the orders of the disciplinary authority as well as that of the appellate authority, as are his rights to get. On review, he is supposed to get the copy of order of the Reviewing Authority.
Implementation of orders of disciplinary authority or that of the appellate authority should be immediate without waiting the outcome of the review. Any order on review can take effect only from the date of issue of such order.
Since review is a prescribed process in disciplinary proceeding system, challenge of any such notice can only result in to failure of the case of the accused. However, if abnormal delay is anticipated in the outcome of the representation against the review notice that can be challanged, but only for the purpose of expediting of the decision on review. But, still the reviewing authority can consider that as a pressure tactics by the accused, which can result in to some biased decision.
High-handedness, biases and prejudices in the disciplinary cases cannot be ruled out. But any hasty action on the part of the accued can ruin the case beyond recovery. So, my sincere advice is to maintain patience for some more time.
ajay sethi
(Expert) 31 March 2012
once order has been passed by High court setting aside order of disciplinary authority and inquiry officer and no appeal has been filed the order is final .
admittedly no appeal has been filed against high court order .
if notice has been issued by registrar as to why more severe punishment should not be awarded you should in reply to notice produce copy of the high court order setting aside orders of disciplinaruy authorities .
if registrar is aggrived he ought to file appeal ahginst high court order .
you are netitled for copies of order
SAINATH DEVALLA
(Expert) 31 March 2012
Dear Kishan,
Dhingraji and Ajayji have given the requisite answer to your query.Nothing more to add.
Murali Krishna
(Expert) 31 March 2012
A review by competent authority when there was no appeal or revision is preferred against punishment, is called "suo motu" review. However, normally it should be undertaken within 6 months. In your case, it appears that suo motu procedure has been adopted and a notice is issued for enhancement of punishment. Refer the disciplinary proceeding rules, and give a reply as to the maintainability of such review.
Sudhir Kumar, Advocate
(Expert) 01 April 2012
With great regard I have to partially disagree with Mr Sethi, Mr Murli Krishana, Mr S Devalla.
Such review can be held in centre under rule 29A of the CCS(CC&A) Rules and there is no limit of six months. It reads as under :-
29-A. Review
The President may, at any time, either on his own motion or otherwise review any order passed under these rules, when any new material or evidence which could not be produced or was not available at the time of passing the order under review and which has the effect of changing the nature of the case, has come, or has been brought, to his notice:
Provided that no order imposing or enhancing any penalty shall be made by the President unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed or where it is proposed to impose any of the major penalties specified in rule 11 or to enhance the minor penalty imposed by the order sought to be reviewed to any of the major penalties and if an enquiry under rule 14 has not already been held in the case, no such penalty shall be imposed except after inquiring in the manner laid down in rule 14, subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary.
Even such order can be made by Revisionary Authority as per rule 29 reads as under
29. Revision
(1) Notwithstanding anything contained in these rules-
(i) the President; or
(ii) the Comptroller and Auditor-General, in the case of a Government servant serving in the Indian Audit and Accounts Department; or
(iii) the Member (Personnel) Postal Services Board in the case of a Government servant serving in or under the Postal Services Board and Adviser (Human Resources Development), Department of Telecommunications in the case of a Government servant serving in or under the Telecommunications Board; or
(iv) the Head of a Department directly under the Central Government, in the case of a Government servant serving in a department or office (not being the Secretariat or the Posts and Telegraphs Board), under the control of such Head of a Department; or
(v) the appellate authority, within six months of the date of the order proposed to be revised or
(vi) any other authority specified in this behalf by the President by a general or special order, and within such time as may be prescribed in such general or special order;
may at any time, either on his or its own motion or otherwise call for the records of any inquiry and revise any order made under these rules or under the rules repealed by rule 34 from which an appeal is allowed, but from which no appeal has been preferred or from which no appeal is allowed, after consultation with the Commission where such consultation is necessary, and may-
(a) confirm, modify or set aside the order; or
(b) confirm, reduce, enhance or set aside the penalty imposed by the order, or impose any penalty where no penalty has been imposed; or
(c) remit the case to the authority which made the order to or any other authority directing such authority to make such further enquiry as it may consider proper in the circumstances of the case; or
(d) pass such other orders as it may deem fit:
Provided that no order imposing or enhancing any penalty shall be made by any revising authority unless the Government servant concerned has been given a reasonable opportunity of making a representation against the penalty proposed and where it is proposed to impose any of the penalties specified in clauses (v) to (ix) of rule 11 or to enhance the penalty imposed by the order sought to be revised to any of the penalties specified in those clauses, and if an inquiry under rule 14 has not already been held in the case no such penalty shall be imposed except after an inquiry in the manner laid down in rule 14 subject to the provisions of rule 19, and except after consultation with the Commission where such consultation is necessary :
Provided further that no power of revision shall be exercised by the Comptroller and Auditor-General, Member (Personnel), Postal Services Board, Adviser (Human Resources Department), Department of Telecommunications or the Head of Department, as the case may be, unless-
(i) the authority which made the order in appeal, or
(ii) the authority to which an appeal would lie, where no appeal has been preferred, is subordinate to him.
(2) No proceeding for revision shall be commenced until after-
(i) the expiry of the period of limitation for an appeal, or
(ii) the disposal of the appeal, where any such appeal has been preferred.
(3) An application for revision shall be dealt with in the same manner as if it were an appeal under these rules.
I could not locate identical provisions in KCS(C&&A) Rules. These rules I can expect to be available in market in Karnataka or in official libraries of state.
Your questions are attempted as under
Q.1 whether such reviews are possible ?
Ans : Yes (prima-facie). Exact applicable reply can be given by someone who has seen all the papers and the KCS(CC&A) Rules.
Q.2 Whether accused is not entitled for copies?
Ans : Yes. You probably mean the copies of the material on the basis of which SCN has been issued.
Q.3 For how many days the accused should wait to get implemented the said legal orders?
Ans :Reasonable time.
Q.4 Whether it can be challenged but advocates saying it is premature notice as no action was taken though explanation was submitted by the accused....is it not delaying tactics of Registrar Vigilance?
Ans : It is your advocate who has seen all the papers. Please do not expect the experts here to given opinion against this wisdom without seeing any paper.
Q.5 Is it not high handedness of Registrar Vigilance behind and back of High Court.
Ans: This question can be replied only on seeing all relevant papers.
Murali Krishna
(Expert) 01 April 2012
Yes. Mr.Sudhir Kumar, thank you very much for correcting me that there was no limitation under suo motu review by President. I have referred to Railway disciplinary rules, wherein such limitation is prescribed for general manager.
