Departmental inquiry
P. Venu
(Querist) 30 March 2013
This query is : Resolved
In a departmental inquiry the Presenting has refused the assignment. The Preliminary Hearing took place in the absence of the Presenting Officer (PO). Could the Regular Hearing also be conducted ex-parte against the Disciplinary Authority if the PO continues to be unavailable?
Devajyoti Barman
(Expert) 30 March 2013
Without the appoint of PO, disciplinary proceed can not happen.
prabhakar singh
(Expert) 30 March 2013
Strange things taking place and would prove
beneficial for employee.
V R SHROFF
(Expert) 30 March 2013
cannot punish w/o proper inquiry
Guest
(Expert) 30 March 2013
All depends on whether or not due notices have been served to the P.O. or not and also whether the matter has been brought to the notice of the Disciplinary Authority or not, as the P.O. acts as representative of the Disc. Authority, who issued the charge sheet.
The P.O., if apponted by the Disciplinary Authority has no right to refuse participation in the process of inquiry. If he does so, his conduct can be termed as indiscipline and defiance of orders of the competent authority for which he is also subject to disciplinary action by the competent authority.
However, in spite of the fact that the matter has also been brought to the notice of the Disc. Authority and still the presenting officer has refused to present the case and is not responding on due notices or the Disc. has not changed the P.O., the inquiry officer can hold the inquiry ex-parte in that case also.
The Disciplinary Authority, however, has the right to appoint another person as P.O. for the case at any stage of the inquiry during the course of inquiry process and a new P.O. can join inquiry either to continue with the proceedings or can request the I.O. to start hearings from the initial stage, as he represents the Diciplinary Authority, who issued charge sheet against the employee. You should also not forget that the Disciplinary Authority has also the right to direct the I.O. to conduct the inquiry proceedings afresh, if some fault in the inquiry proceedings is noticed by him.
So, any hurried action on the part of the I.O. can also prove to be fatal as that can be treated as favouritism to the employee on his part, if he does not take due care. After all the I.O. is also acting on behalf of the Disc. Authority.
Better fight the case on merits of the case, rather than taking the risk of failure at the final stage of appeal even.
R.K Nanda
(Expert) 30 March 2013
no more to add.
P. Venu
(Querist) 30 March 2013
It is not a case of evading the inquiry, but the absence of the PO may further delay the much delayed inquiry. I am due to retire on 30th June next.
The delay is wholly on the part of the Disciplinary Authority. The IO & PO have been appointed after a delay of more than a year even though The Defense Statement had been submitted within 5 days of the receipt of the charge-sheet. The proceedings are on behalf of the President of India and the Inquiry Officer is a CDI of the CVC.
The charges are perfunctory as the acts which constitute the alleged misconduct have been upheld by the CAT and the High Court of Gujarat. (Or rather, the instructions which were resisted were quashed and set aside).
As such. there are no charges that could be proved. But the prolonged inquiry would result in withholding the pensionary benefits. That, obviously, is the intended punishment.
Incidentally, the same person was the PO in the inquiry held a decade back where all the ten charges were proved to be false.
Sudhir Kumar, Advocate
(Expert) 31 March 2013
what else do y9ou think is evading inquiry.
Sad but true at times everyone when accused is retiring shortly every one who can delay inquiry can demand his pound of flesh. Please send PM and I will elaborate further
Raj Kumar Makkad
(Expert) 02 April 2013
You need to make a representation to the DO to direct IO and PO to expedite the matter.
Guest
(Expert) 02 April 2013
You can prefer written representation to the I.O. to hold inquiry ex-parte, if the P.O. is not responding. You need not bother and wait for the response of the disciplinary authority, as the matter is at present between you and the I.O. You should at least create some evidence on record of the CDI CVC that you have been cooperating with the inquiry, while the prosecution is intentionally evading to get the process of inquiry accomplished within a period of six months, as set even the CVC, itself, vide its letter No.8(1)(g)/99(3), dated 3rd March 1999.
This process would help you even in your court case to convince the judge, if you later on decide to file one against the department.
P. Venu
(Querist) 02 April 2013
Perhaps, I hope, following details may help in better appreciation of the present stalemate.
Chargesheet is based on the events when I was posted in Jamnagar during 2002-2007. There are three charges:
I. Sanction of LTC claims: I had sanctioned the LTC claims of the officials who could not avail of the facility for the block year 2000-01 as the facility (or rather, its availing of) stood suspended for a period of two years with effect from 2.3.2001. This was based on the clear understanding that the OM suspending the LTC facility was an administrative instruction and it did not and could not have an overriding effect over the CCS(LTC)Rules; the OM could not have divested the employees who could not avail of it by 1..3.2001. Such an interpretation or implementation could have rendered the OM ultra vires. Hence, when some of the officials availed of the facility (for the block year 2000-01) during 2003 (after 2.3.2003), I had sanctioned the same in terms of Rule 10. (I was the Controlling Officer & the CDDO) The Deputy Salt Commissioner (DSC) and the PAO objected and instructed recovery from the officials. I had tried to explain the legal aspects, but in vain. Still I resisted and had approached the CAT. I was transferred from Jamnagar during August 2007 and there was immediate action to effect the recoveries. The affected officials had approached the CAT which upheld my action and quashed the action for recovery. The Department had approached the High Court and Supreme Court in vain.
II. The second charge pertains my action (during 2003-2004) in preventing an Inspector of Salt, who was in my charge, from closing down a refinery at the instruction of the DSC. My stand was that we had no powers to implement his direction. On my refusal, he himself issued a Notice which was immediately stayed and subsequently quashed by the High Court holding that there are no powers vested in the officers our department to close down a refinery.
III. Our Department organises, every year, Health camps for the workers. These are inefficiently carried out.It was the accepted practice to produce bogus cash memos against purchase medicine. During 2005, I arranged a number of camps in Jamanagar District utilising the services of the mobile unit of the local Medical College much more efficiently and the less than one-third of the usual expense. However, the DSC withheld the sanction for the estimates on the ground that the provision for purchase of medicine is less. I handled this challenge by sanctioning the estimates within my competence (Incidentally, the PAO had not raised any objection.)
Action for Departmental Proceedings had commenced during 2007 and there was an interaction with a Deputy Secretary of the Department of IPP on all the above aspects om 9.7.2007. I had explained the things and also furnished written submissions.
The matter remained dormant thereafter. In the meanwhile, the CAT and the High Court had given the decisions. However, a charge-sheet was issued on 11/11/2011 (The then DSC had taken over as Salt Commissioner on 1/9/2011). The articles as well as the Imputations makes no mention of the interaction held on 9.7.2007 or the decisions of the CAT and the High Court. I had, on 23.11.2011 submitted the Statement of Defence requesting for dropping the charges as the charge-sheet had not taken into consideration the material facts. As there was no progress, I approached the CAT (no interim orders were sought). The matter is kept for final hearing on 8th April.
The IO and PO have been appointed on 20.2.2013. The order reveals that the CVC had recommended the POs name during October 2012. The PH was held on 25/3/2013. The PO was absent. The hearing was held in her absence. I submitted the List of additional documents on the same day. The next hearing is scheduled on 22nd April. I had insisted to the IO during PH that regular hearing should commence within 30 days, as prescribed.
More than any individual, the real crux of the issue is the maladministration prevailing in our Department. The Ministry is totally indifferent.
Ihe Disciplinary Authority, technically, is the President. But the fact of the matter is that everything is the hand of some junior official.
