Disciplinary action
Gajendran
(Querist) 06 June 2014
This query is : Resolved
Mr.X appointed to Govt. Service on compassionate grounds in the capacity of ‘D’ group in Education Department. His date of Joining is 08-06-2002. As he is illiterate during appointment Mr.X produced an affidavit as a proof for the date of Birth. (Date of Birth is 12-04-1965)
Mr.Y, the neighbor of Mr.X has complained to the Department of Education that Mr.X has produced a false date of Birth while joining to the service. And Mr.X is due to retire by 30-06-2014.
The disciplinary authority has initiated for inquiry & has appointed presenting & inquiry officer.
In this connection the following clarifications have been sought.
1. As soon as the complaint received by Mr.Y the disciplinary authority has issued a notice to Mr.X stating the nature of Punishment. Is this a legal one?
2. The disciplinary authority has framed a charge sheet i.e., Annexure 1 to 4. Is there is any provision to frame additional charge sheet on Accused Government servant?
3. Can a Non-Gazetted official be appointed as Presenting officer or Inquiry officer?
4. Can Accused Government servant appoint a lawyer for aurguments?
5. In this regard Mr.Y has produced the extract of Admission register as proof of evidence. Can extract of Admission register be taken as a proof?
Guest
(Expert) 06 June 2014
First of all you may clarify, how you are related to this problem of Mr. X or the complaint of Mr. Y?
Secondly, you have not mentioned, according to Y what is the date of birth as per admission register?
Isaac Gabriel
(Expert) 07 June 2014
Any dispute in date of birth has to be resolved within five years.In this case it is perfunctuary to frame charge at the fag end of service. Only if there was prima facie,the disciplinary authority can frame charge on this issue.
Sudhir Kumar, Advocate
(Expert) 07 June 2014
I may disgree with Mr Gabriel.
The misleading information at the time of service can be looked into at any time during service and disciplinary action can be taken.
further the dispute has come only when there is material complaint and has been acted upon rightly or wrongly) at that time.
Sudhir Kumar, Advocate
(Expert) 07 June 2014
While agreeing with Mr Dhingra, your questions (based on existing inputs) are repl;ied as under
1. As soon as the complaint received by Mr.Y the disciplinary authority has issued a notice to Mr.X stating the nature of Punishment. Is this a legal one?
Ans : Prima-facie not tenable. But no concrete comment can be given till the notice is perused.
2. The disciplinary authority has framed a charge sheet i.e., Annexure 1 to 4. Is there is any provision to frame additional charge sheet on Accused Government servant?
Ans : Query not understood what do you mean.
3. Can a Non-Gazetted official be appointed as Presenting officer or Inquiry officer?
Ans :In case the department is not aware of the rules then they keep hunting for knowledgeable gazetted officer to be Presenting Officer.
Rarely you will find a gazetted officer working as presenting officer in case of a Gp-D employee. Even Inquiry Officer need not be gazetted. There is no binding rule in this regard.
4. Can Accused Government servant appoint a lawyer for aurguments?
Ans : No.
He is entitled to be presented through any retired/service central/state Govt employee of his choice.
5. In this regard Mr.Y has produced the extract of Admission register as proof of evidence. Can extract of Admission register be taken as a proof?
Ans : It is matter of evidence during inquiry.
It is not clear if he has produced it himself or got it summoned by the IO in terms of Rule 14(12) of CCS(CC&A) Rules.
It is not clear if there was really a school record then why he produced affidavit as proof of DOB. Prima-facie it seems an afterthought.
As Noticed by Mr Dhingra you have not stated as to which was the correct DOB.
No concrete comment can be given till the notice is perused.
Rajendra K Goyal
(Expert) 07 June 2014
The charge sheet, reply and other related documents need to be perused, consult a service law expert and show him all the documents.
Lawyer SALEEMA KABEER
(Expert) 07 June 2014
1. Disciplinary authority can not issue notice by mentioning the punishment straightaway on receipt of complaint that too prior to the enquiry. It is highly illegal which shows the pre-decided mind of the said authority.
2. Additional charges can be framed but it has to be brought to the notice of delinquent employee by providing reasonable opportunity to him to offer his explanation.
3. Any one of the officer can be appointed as presenting officer.
4.The delinquent employee is having every right to participate in the disciplinary proceedings along with a lawyer to assist him legally.
5.If an extract of Admission register is certified by the concerned authority, then no doubt, it could be taken as evidence.
Sudhir Kumar, Advocate
(Expert) 07 June 2014
I partially disagree with Saleema Kabeer.
Being represented in depttl inquiry through advocate is not a right it is a concession which can be given if the intricate question of law is there or Presenting Officer is lawyer. In this case nothing such thing is apparent.
I maintain
He is entitled to be presented through any retired/serving central/state Govt employee of his choice.
Sudhir Kumar, Advocate
(Expert) 07 June 2014
re;ad missibility of of the admissin register as evidence I am unable to agree or disagree with view of Saleema Kabeer.
Full facts of the case are not before the forum.
T. Kalaiselvan, Advocate
(Expert) 11 June 2014
I probably have to respectfully disagree with expert learned Ms. Saleema Kabeer to her view about the delinquent can be accompanied with a lawyer, because the service rules on inquiry do not permit an advocate/lawyer to represent the employee in a departmental inquiry and not even in an inquiry before ACL. She may kindly verify the same and correct me if I am wrong.
The author is still to answer expert Mr.Dhingra's first query to author which reads thus:
"First of all you may clarify, how you are related to this problem of Mr. X or the complaint of Mr. Y?"
Lawyer SALEEMA KABEER
(Expert) 11 June 2014
Sir,
In the Judgment of the Hon'ble Supreme Court of India, reported in 1990 SCR Supl.(3)13, it was held as follows:
"In the inquiry, the Respondent-Corporation was represented by its Personnel and Administration Manager, who is stated to be a man of law. Moreover, appellant, it is claimed, has had no legal background. The refusal of the service of a lawyer, in the facts of this case, results in denim of natural justice."
Now a days, it can be believed that most of the officials holding post in managerial capacity are having sufficient experience and knowledge in law by acquiring from their routine work.
Though the advocates are not permitted to represent before the ACL for their parties by filing their vakkalath, the fact that the lawyers who have sufficient knowledge and experience in law (even the practising lawyers), are being permitted to give assistance in most of the ACL proceedings in the capacity of leader of association (both for employer and employees).
Guest
(Expert) 11 June 2014
Dear Saleema,
In departmental inquiry cases, not the conventions or sections of any Act, but relevant discipline and appeal rules have to be followed. Defence assistant cannot be a lawyer, unless the disciplinary case is made to be represented through a lawyer by the disciplinary authority. Legal knowledge gained on general matters by any manager has no relevance and not a bar to represent the case on behalf of the adminstration/ management unless he is a qualified lawyer. The disciplinary authority is not authorised even to give any consideration to some case law, uless he is specifically authorised to follow the spirit of any specific case law by issue of Government of India decision or instruction based on the analogy of the case law.
Lawyer SALEEMA KABEER
(Expert) 11 June 2014
Dear Mr.Dinghra,
It is strange to hear that the disciplinary authority is not authorised even to give any consideration to some case law, unless he is specifically authorised to follow the spirit of any specific case law by issue of Government of India decision or instruction based on the analogy of the case law.
No doubt, the disciplinary proceedings are not governed by any law except the principle of natural Justice. It doesn’t mean that the enquiry officer can neglect the guidelines given by the Supreme Court by its Judgment. No one in India can go beyond the scope of the Judgment delivered by the Supreme Court.
The present development is that the assistance of lawyer is being permitted at the international level for the reason that the representation by lawyer in a departmental inquiry is to grant an effective opportunity of defense. Even in India, the assistance of lawyer is now accepted as a “due process”.
It is true that every Governmental body or institution has its own set of rules that provide discretionary jurisdiction to the authorities either to allow or not to allow the assistance of lawyer. Rules provide that normally the employees may be allowed to retain a representative of their choice, but in harder cases, even the lawyers are also permitted to be engaged in a departmental inquiry. Thus, the employees are entitled for getting legal assistance from their lawyer.
In the decision in J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others , the Apex Court held that where the legally trained mind represented an employer in a domestic enquiry, the refusal to grant an opportunity to the employee would amount to denial of a reasonable request to defend himself and violation of essential principles of natural justice.
In the decision in Ram Naresh Tripati v. S.D.Rane and others reported in 1992-II-L.L.J. 519, the Bombay High Court held that for the domestic enquiry to be fair and impartial, it is very much necessary that the delinquent workman should be allowed to be represented by a person of his choice and if an employee is refused such a fair opportunity, it would amount to violation of principles of natural justice.
In Board Of Trustees Of The Port Of ... vs Dilipkumar Raghavendranath the Hon’ble Supreme Court held as follows:-
“…But we want to be very clear that we do not want to go that far in this case because it is not necessary for us to do so. The all important question: where as a sequal to an adverse verdict in a domestic enquiry serious Civil and pecuniary consequences are likely to ensue, in order to enable the person so likely to suffer such consequences with a view to giving him a reasonable opportunity to defend himself, on his request, should be permitted to appear through a legal practitioner is kept open.”
Gajendran
(Querist) 11 June 2014
I am working as Second Division Assistant in the office where Mr.X is working.
Here Mr.X is Sri.Kempanna & Mr.Y is Sri.Jayaram.
According to Mr.Y the date of birth of Mr.X is 12.06.1954. (As per admission register also)
As per complaint & proff of evidence the employee has to retair by the end of this month.
T. Kalaiselvan, Advocate
(Expert) 12 June 2014
Agreed with Ms. Saleema Kabeer especially the appreciable efforts she has put to quote the case with relevant citations to establish her contention. What is disagreeable is that though the citations quoted herein above are sufficient enough to show that the settled law agrees for defence through a legally knowledgeable person, the actual law do not endorse the said views.
Sudhir Kumar, Advocate
(Expert) 12 June 2014
@ saleem Kabeer.
It is not clear if the case quoted by you is of a Government servant.
Also the disciplinary proceedings of govt servants are not heard at ALC.
under provisio to Article 309 of the constitution rules have been framed by President which are called Central Civil Services (Classification Control and Appeal) Rules.
states Govt copy these rules (and amendments) and get promulgated from Governor under same provisio
PSU/Autonomous bodes/ local bodies either pass a resolution to follow these rules or they frame there own rules (copy the same)drawing strength from the statute forming such body.
these rules are statutory and provisions have been eleborated by Mr Dhingra.
Sudhir Kumar, Advocate
(Expert) 12 June 2014
I have already elaborated that disciplinary proceedings are governed by rules which are statutory so and whole procedure is elborated thereion.
I have to disgree wth view of Saleema Kabeeer that "No doubt, the disciplinary proceedings are not governed by any law except the principle of natural Justice"
Guest
(Expert) 14 June 2014
Dear Saleema,
My views might have been taken as strange by you, but I do not get surprised when I find any advocate trying to amalgamate the functions of the judiciary and the executive together, as not a few but several of the advocates have misconception, as if each individual judgment has a universal application and implication for one and all types of cases in each and every organisation of India. In fact the bad luck of the aggrieved employee starts the same day when he happens to hire an advocate, who believes that every other individual judgment has automatic effect to supersede the main service laws of the land and their subordinate legislation/Rules. Several departmental inquiry cases fail in the Tribunals and Courts only on account of such misconception of the concerned advocates.
Anyway, if you believe that the court judgments have the effect to modify the conduct & discipline rules of any organisation, would you please like to clarify the following points to enable me enhance my knowledge, if you believe that I am wrong in my previous observation about disciplinary cases?
1) Do you believe that every individual judgment of the HC or the SC has to be treated as subordinate legislation and be applied in usual course anywhere and everywhere in disciplinary natters within the Government or private organisations? If so, you may like to quote any order of the Supreme Court, Law Ministry, DOPT, or any other Ministry of the Government or the provisions of any Act or Rule that the Disciplinary Authorities are bound to apply judgment in other cases to the case of their own employees also?
2) Do you believe that all individual judgments of Tribunals/HC/SC are circulated to each and every Government Departments, PSUs and private companies to be followed scrupulously in disregard of the Rules of their departments? If so, please quote Ruling, if any, on the issue.
3) Whenever the Disciplinary Authority in Government or private organisation considers taking disciplinary action against any of his employee, whether the disciplinary authorities are obliged to start searching of the HC/SC judgments before start of disciplinary case against their employees, as against the Departmental Rules? If so, please quote any Ruling on the issue to enable me to enhance my knowledge also.
4) Similarly, whenever any Inquiring Authority starts inquiry, should he also start searching HC and SC judgments and stop inquiry till he is able to lay hands on the decision of the HC/SC on some case similar in characteristics and circumstances to the cases under inquiry.
5) My views are that the judiciary comes in to picture only when executive fails to abide by set rules to be observed by any organisation under the constitutional provisions or goes beyond the scope of natural justice. If you have some other opinion, you may please like to enlighten me to enable me to enhance my knowledge.
6) With reference to the decision in J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others, as quoted by you, are you sure that before start of the inquiry process, if the appellant invited attention of the Inquiring Authority to the stated decision of the SC and requested for grant him facility to hire services of a lawyer and whether the inquiring authority rejected his plea even on reference of the case?
7) In the aforesaid “J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd” case, if the Personnel and Administration Manager, who represented the case and was stated to be a man of law, do you think the appellant, as a company secretary of the corporation, was not a man of law?
8) On one hand you admit, “no doubt, the disciplinary proceedings are not governed by any law except the principle of natural Justice, but on the other you have stated, it doesn’t mean that the enquiry officer can neglect the guidelines given by the Supreme Court by its Judgment. No one in India can go beyond the scope of the Judgment delivered by the Supreme Court. Can you please advise whether the so called guideline was supplied by anyone to the inquiry officer or whether the said SC decision states anywhere that the judgment may be taken as guidelines for all the disciplinary cases with effect from the date of judgment, i.e., 5th Sept. 1990?
I hope to learn more from your knowledge and experience with due support of the ruling on the issue, as law believes in proof, not on opinions or beliefs.
T. Kalaiselvan, Advocate
(Expert) 15 June 2014
Excellent Dhingra Sir. I am very impressed seeing your rightest observation on learned Ms. Saleema's reply to your previous query and I fully agree with your views. Learned advocate Ms. Saleema Kabeer is bound to give her comments to the above observations made by expert Mr.Dhingra and I believe she will do it soon.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
For the benefit of Msa Saleema Kabeer and others i react to the valuable points raised by Mr Dhingra.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
1) Do you believe that every individual judgment of the HC or the SC has to be treated as subordinate legislation and be applied in usual course anywhere and everywhere in disciplinary natters within the Government or private organisations?
Ans : No. Even the judgements of Supreme Court are promulgated as DOPT instructions and then followed in disciplinary proceedings.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
If so, you may like to quote any order of the Supreme Court, Law Ministry, DOPT, or any other Ministry of the Government or the provisions of any Act or Rule that the Disciplinary Authorities are bound to apply judgment in other cases to the case of their own employees also?
Ans : DOPT issues instructions case specific.
I give one example
(5A) Reasons for disagreement, if any should be communicated –
The Supreme Court has decided the matter finally in its judgment dated 01.10.1993 in the case of Managing Director (ECIL), Hyderabad Vs. B. Karunakar (JT 1993 (6) SC.I). It has been held by the Supreme Court that wherever the Service Rules contemplate an inquiry before a punishment is awarded and when the inquiry officer is not the disciplinary authority, the delinquent employee will have the right to receive the inquiry officer’s report notwithstanding the nature of the punishment. Necessary amendment providing for supply of copy of the inquiry officer’s report to the delinquent employee has been made in Rule 15 of the CCS (CCA) Rules, 1965 vide Notification No. 11012/4/94-Estt. (A) dated 03.05.1995. All disciplinary authorities are, therefore, required to comply with the above mentioned requirement without failure in all cases.
2. A question has been raised in this connection whether the disciplinary authority, when he decides to disagree with the inquiry report, should also communicate the reasons for such disagreement to the charged officer. The issue has been considered in consultation with the Ministry of Law and it has been decided that where the Inquiring Authority holds a charge as not proved and the disciplinary authority takes a contrary view, the reasons for such disagreement in brief must be communicated to the charged officer along with the Report of Inquiry so that the charged officer can make an effective representation. This procedure would require the Disciplinary Authority to first examine the report as per the laid down procedure and formulate its tentative views before forwarding the Report of Inquiry to the charged officer.
[Department of Personnel & Training OM No. 11012/22/94-Estt. (A) dated 27.11.1995]
This Supreme Court judgement remained ignored in the disciplinary proceedings from 1993 to 1995.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
2) Do you believe that all individual judgments of Tribunals/HC/SC are circulated to each and every Government Departments, PSUs and private companies to be followed scrupulously in disregard of the Rules of their departments? If so, please quote Ruling, if any, on the issue.
Ans : Not in practice. In fact all officers who work as DA/ IO/PO are not well versed to understand these judgements. Even appointing authorities at some times range from matriculates, plain graduates, scientists, engineers, Armed Forces officers (including NDA entry), professors, doctors, artists etc. They at times are not able to understand even DOPT instructions. Most of them are proud of their being unaware of law. So expecting the DA/ IO/PO at all times be abreast and understanding the latest judgements is a joke.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
3) Whenever the Disciplinary Authority in Government or private organisation considers taking disciplinary action against any of his employee, whether the disciplinary authorities are obliged to start searching of the HC/SC judgments before start of disciplinary case against their employees, as against the Departmental Rules? If so, please quote any Ruling on the issue to enable me to enhance my knowledge also.
Ans : Not practicable.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
4) Similarly, whenever any Inquiring Authority starts inquiry, should he also start searching HC and SC judgments and stop inquiry till he is able to lay hands on the decision of the HC/SC on some case similar in characteristics and circumstances to the cases under inquiry.
Ans : even without such search no IO is able to complete Inquiry in six months. This way no Inquiry will finish before six years. That way guilty will enjoy the delay and wrongly implicated innosent official will suffer the delay.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
5) My views are that the judiciary comes in to picture only when executive fails to abide by set rules to be observed by any organisation under the constitutional provisions or goes beyond the scope of natural justice. If you have some other opinion, you may please like to enlighten me to enable me to enhance my knowledge.
Ans : Judiciary comes only after the executive has given a decision detrimental to the employee. It never comes in picture if he has been illegally let off.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
6) With reference to the decision in J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others, as quoted by you, are you sure that before start of the inquiry process, if the appellant invited attention of the Inquiring Authority to the stated decision of the SC and requested for grant him facility to hire services of a lawyer and whether the inquiring authority rejected his plea even on reference of the case?
Ans : Not at all.
Provisions of Rule 8 of CCS(CC&A) Rulesd are very clear:-
(8)(a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits ;
Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.
Note : The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.
These rules are binding and statutory in nature having been framed in exercise of powers conferred under provisio to article 309 of the Constitution.
The opening sentence of these rules provides
DOPT provision is as under
(13) Permission to engage a Legal Practitioner :-
Rules 14 (8) (a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides, inter-alia that a delinquent Government servant against whom disciplinary proceedings have been instituted as for imposition of a major penalty may not engage a legal practitioner to present the case on his behalf before the Inquiring Authority, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. It is clarified, that, when on behalf of the disciplinary authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or a Government Law Officer (such as Legal Adviser, Junior Legal Adviser), there are evidently good and sufficient circumstances for the disciplinary authority to exercise his discretion in favour of the delinquent officer and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court as arbitrary and prejudicial to the defence of the delinquent Government servant.
[Deptt. of Personnel & AR OM No. 11012/7/83-Estt.(A) dated the 23rd July, 1984].
These instructions of DOPT serve as guiding principles for the DA/ IO.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
7) In the aforesaid “J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd” case, if the Personnel and Administration Manager, who represented the case and was stated to be a man of law, do you think the appellant, as a company secretary of the corporation, was not a man of law?
Ans : The above rules quoted are relevant to the Central Govt. But same set of rules are copied by state govts and inter-alia the state PSUs either copy these rules or adopt the state govt rules so copied by state Govt.
DOPT instructions are guiding principles apply universally to all such rules.
Lawyer SALEEMA KABEER
(Expert) 15 June 2014
The views and role of Mr.Kalai selvan is not clear in this issue.
I believe that some of us have been designated as EXPERT in order to give proper answers to the needy, not to put unnecessary questions.
It is found from Mr. Dinghra's clarification that he put a single question on several shapes that is whether the judicial precedents are binding nature in disciplinary enquiry?
Though he expected ruling from me by stating as “law believes in proof, not on opinions or beliefs”, in spite of several citations have been quoted in my earlier replies on this subject matter, he has not chosen to cite any ruling or provision to the effect that the disciplinary authority need not follow any guidelines given in the Judge made laws to support his views.
Since I have already expressed my view and explained the same by quoting relevant rulings, there is no need to give any more details. However, for the better understanding and benefit to the viewers, in furtherance to my previous replies I would like to add the following also.
Nevertheless, as a matter of fact, binding judicial pronouncements are not followed by many departmental authorities, the Bombay High Court delivered a judgment in case of Legrand (India) Pvt. Ltd. v. Union of India. by specifically ruled as follows,
“From the above four decisions, the following propositions emerge:
(a). It is immaterial that in a previous litigation the particular petitioner before the court was or was not a party, but if a law on a particular point has been laid down by the High Court, it must be followed by all authorities and Tribunals in the state;
(b). The law laid down by the High Court must be followed by all authorities and subordinate tribunals when it has been declared by the Highest Court in the state and they cannot ignore it either in initiating proceedings or deciding the rights involved in such proceedings;
(c) If inspite of the earlier exposition of law by the High Court having been pointed out and attention being pointedly drawn to that legal position, in utter disregard to that legal position, proceedings are initiated it must be held to be willful disregard to the law laid down by the High Court and would amount to civil contempt as defined in the Section 2(b) of the Contempt of Courts Act, 1971.”
Section 2(b) of the Contempt of Courts Act, 1971 defines,
“Civil Contempt means willful disobedience of any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to the court.”
When a proposition of law has been declared by higher judiciary, and despite such knowledge, a departmental adjudicating authority does not follow that precedence, no doubt, it does amount to contempt of court.
In judgment of the Apex Court in Roop Singh Negi Vs. Punjab National Bank and Others wherein it has been held as under:-
“14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function.”
I hope that the above additional information and my previous replies will substantiate my views. Either you may accept or differ. Views of individuals may differ on several reasons. But, I don't like to argue unnecessarily on this point again.
Sudhir Kumar, Advocate
(Expert) 15 June 2014
8) On one hand you admit, “no doubt, the disciplinary proceedings are not governed by any law except the principle of natural Justice, but on the other you have stated, it doesn’t mean that the enquiry officer can neglect the guidelines given by the Supreme Court by its Judgment. No one in India can go beyond the scope of the Judgment delivered by the Supreme Court. Can you please advise whether the so called guideline was supplied by anyone to the inquiry officer or whether the said SC decision states anywhere that the judgment may be taken as guidelines for all the disciplinary cases with effect from the date of judgment, i.e., 5th Sept. 1990?
Ans : I have already reacted that the Disciplinary proceedings are governed by the well laid down rules which are availale at
http://www.persmin.gov.in/DOPT/EmployeesCorner/Acts_Rules/ccs%28cca%29/ccstotal1.htm
Guest
(Expert) 15 June 2014
Here after seeing the above replies and debates of the experts I wish to inform an incident happened to myself.Three months back I had a clarification required on International Legal matters and I approached one of the Legal Forum website,after submitting my query they wanted me to pay 30 us dollars and 10 dollars in advance and balance 20 dollars after getting a satisfied reply.I gave the details of my account and amount to the value of 10 dollars deducted immediately and after that no mail no reply also.After some time i was left with no option but to forget it .The website is very much active even now. Here in L.C.I. the querists are blessed with great response and competitive replies.Excellent Service by L.C.I.Experts.Greatly appreciated.
Guest
(Expert) 16 June 2014
Dear Gajendran,
My replies to your queries are as follows:
1. You have not mentioned, what nature of punishment the disciplinary authority has mentioned in the show cause notice to Mr. X. There may be some misunderstanding on your part to understand the terms nature of punishment and disciplinary action.
2. There is no provision for additional charge sheet to split up the charge for a single offence?
3. A Non-Gazetted official can be appointed as Presenting officer as well as the Inquiry officer. But, the inquiry officer must be sufficiently senior to him besides being knowledgeable.
4. As per the provisions of rules, an accused Government servant can appoint a lawyer for presenting his case only if a practising lawyer has been appointed as the presenting officer by the disciplinary authority.
5. The extract of Admission register, as produced by Mr. Y, cannot be treated as proof of evidence unless that is established to be correct beyond any doubt, besides being authenticated by the school authorities. So, it becomes the moral duty of the complainant as well as the department to prove the correctness of the admission record beyond any doubt in order to prove their charge.
But, there is a vast difference of 11 years between his DOB as per the admission record and that mentioned in the affidavit. So, Mr. X may have to produce sufficient proof against the admission record, if he thinks that his parents would have given wrong information about his DOB at the time of admission. If the information of admission record is really wrong that cannot be treated the mistake of Mr. X. But, if he has given wrong information on declaration through his affidavit, he cannot secure his position from stern diciplinary action.
However, there is one more record, which the accused or the I.O./Disciplinary Authority can rely, as that can be treated as more authentic as compared to the admission record and the declaration through affidavit. His age can be confirmed from his medical certificate of fitness that he would have submitted before joining service. The examiner Medical Officer also gives the approximate age of the candidate, as per his bodily appearance.
Guest
(Expert) 17 June 2014
Dear Saleema,
Now it is my turn to wonder on your response, as your evasive reply and misinterpretation of the Section 2(b) of the Contempt of Courts Act, 1971 and judgment of the Apex Court in "Roop Singh Negi Vs. Punjab National Bank and Others" makes be believe that you do not even seem to be fully aware of the judiciary system, what to say of the executive rules & procedures. At least from a person, who even can’t spell my name properly even after finding my name repeatedly, how I can expect the correct interpretation of law with reference to the rule and procedures to be followed by the executive side of the society? Twice you addressed me assuming my name to be “Dinghra” instead of “Dhingra.” The smallest instance gives enough inkling to what extent you can be careful in handling processing or interpreting the legal aspects of any case.
Almost every disciplinary authority and inquiring authority has the knowledge about the departmental inquiry to be of quasi judicial nature. By the way, what is the relevance of your quotation, “Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function,” on the judgment of the Apex Court in “Roop Singh Negi Vs. Punjab National Bank and Others,” when neither the case of the querist, nor the case of “J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others,” had raised any doubt or question about the nature of the departmental inquiry?
By the way, what do you exactly intend to communicate by the term ‘quasi judicial,’ i.e., exactly judicial, approximating judicial or something else?
The question arises, does your reply or quotations give any answer to any of my queries about when and how the court judgments are provided to the executive and by whom with specific instructions for the organizations to follow all the court judgments scrupulously, irrespective of whether they belong to their management or workers.
Your deliberate silence on my queries, itself, smacks about your misconception about distinction between judiciary and the executive with particular reference to the subordinate legislation.
Further, if you believe that there was an element of contempt of court in the case of “J.K.Aggarwal v. Haryana Seeds Development Corporation Ltd. and others,” why the complainant, Mr. Aggarwal and his Supreme Court Advocate did not take up case of contempt of court, besides the case for quashing of the HC judgment, while presenting the case before the SC? Naturally, the Supreme Court Lawyer would have been pretty senior to you and the Hon. SC Judges, S/Shri M.N. Venkatachalliah and K.N. Saikia, of the case, would also have been one of the selected top Judges of India to be considered to be fully aware of the vital fact about contempt of court, had that been there in the case.
Suppose, you get some judgment in favour of your client to which I may not have been even remotely concerned, do you believe that I would have to do something on that aspect failing which I would be sued by you for the contempt of court?
I request you to please try to understand the realities of the legal aspects and the executive aspects distinctly, rather than becoming a cause of misleading of the clients. Both the Judiciary and the Executive have their distinct roles to play. So, mixing up and confusing the functions of each side can only harm the interest of your clients.
We must not forget that the judiciary comes to the fore only when injustice is done to someone under the rules and procedure set for the Executive to follow. They are not supposed to know the nitty-gritty of the law, the violation which has to be brought specifically before the Judiciary, if some justice is done against the set rules and procedure or the natural justice.
Sudhir Kumar, Advocate
(Expert) 17 June 2014
The whole debate is gong on about the admissibility of the record ofadmission
The querist raised a vague qauery and sitting and enjoying.
He has not clarified whether :-
(i) What is correct DOB 1954 or 1965.
(ii) How he is about to retire in 2014 if he joined as per DOB 1965?
(iii) How deptt came to know of wrong DOB?
(iv) What he wants to prove by admission record, whether he wants to prove 1965 as correct DOB?
(v) Where was this evidence at the time of joining.
Lawyer SALEEMA KABEER
(Expert) 17 June 2014
The person, who took more than 6 days time even to find out the spelling mistake in his own name though he has participated in the discussion by posting his replies and views more than a time from the 3rd day onwards, now after 6 days, makes unnecessary comments with a view to attack personally instead of expressing his views within the limit of the legal point raised here. It is not only unfair and unethical but also exceeds the scope and limit of this platform.
Since I know that I am not here to argue unnecessarily but to express and share my views only on the legal points, and since I have already expressed my views along with relevant rulings in my earlier replies, I don't want to say any thing more on this subject.
Guest
(Expert) 18 June 2014
Everything can't be fair or unfair merely according to your own sweet will when you don't have any reply to any of my questions. Even eight different questions have been considered as a single question by you. Is not that a sweet interpretation on your part?
Further, were my questions, as based only on your own view points, illegal or unethical? If yes, you could better have answered all of my questions to prove me wrong. Neither my previous post was based on spelling mistakes by you, nor the last one, the reference of which was merely to indicate how careful you can be when even after seeing the spellings written before you, you could not spell properly even a very small name, what else anyone can expect from you about interpretation of legal terms. If you are authorised so, you can even hold responsible the people of whole world for contempt of court for each and every judgment in favour or against someone else unknown to every other person.
Even if you consider that a single question, why don't you reply in a single answer containing reply to all the points raised by me through 8 questions clearly describing the complete process how the judicial decisions of each individual court case reach the disciplinary authorities and the inquiry officers of various organisations to be complied in different disciplinary cases, right from the channels of the HC/SC to the lowest rung of the executive througout India?
About six days in my reponse, even that proves your imagination to be quite poor thinking as if I don't have any work to do and am sitting here idle just in wait of queries to be answered. I use only my idle time to reply the queries. Some times I don't appear at the LCI even for days together due to my preoccupations of priority nature.
Sudhir Kumar, Advocate
(Expert) 18 June 2014
anyone who did not have any idea of law and procedure relating to Disciplinary matters could have benefited from this discussion.
It is the choice of the person whether to be benefited or not.
