Deoparmental proceeding
prakash
(Querist) 06 December 2012
This query is : Resolved
I AM WORKING IN AN AUTONOMOUS ORGANIZATION, WHICH HAS CONDUCTED AN WRITTEN EXAMINATION FOR SOME POSTS IN THE SAME.I WAS ORDERED TO SCRUTINIZED THE ANSWER SHEET WITH OUT ASKING ANY CHOICE FOR IT. I HAVE DONE MY JOB SINCERELY & HONESTLY. LATER ON THEY CHARGED ME THAT AS MY BROTHER WAS A CANDIDATE I SHOULD NOT HAVE TO PARTICIPATE IN THE EXAM & ISSUED MAJOR CHARGE SHEET.
LATER ON,IN THE PROCEEDING IT WAS ESTABLISHED THAT MY ONLY ROLE IN THE EXAM WAS IN THE SCRUTINY OF THE ANSWER SHEET BUT I HV NOT EVALUATED MY BROTHER'S ANSWER SHEET.THERE WAS NO ANY IRREGULARITY IN EVALUATION, NO ANY TEMPERING IN HIS ANSWER SHEET. ALSO HE WAS NOT SELECTED.HE DO NOT USED TO LIVE WITH ME.
BUT I WAS ORDERED MAJOR PENALTY.
IS THIS HOLDS TRUE IN THE EYE OF LAW THAT I HAVE PUNISHED WITH OUT DOING ANY ILLEGAL THING?
Raj Kumar Makkad
(Expert) 06 December 2012
You should challenge the penality on all such grounds and I do hope that you shall get justice.
K.K.Ganguly
(Expert) 07 December 2012
1) Take the stand that you did not know that your brother, who does not stay with you, was a candidate in the examination,
2) Make an appeal to the Appellate Authority as per your service conduct rule, if there is any, to complete the disciplinary proceedings,
3) If you fail there, file a Writ Petition before the High Court praying for setting aside the impugned order.
Sudhir Kumar, Advocate
(Expert) 07 December 2012
You cannot say that "I HAVE PUNISHED WITH OUT DOING ANY ILLEGAL THING? "
Mere fact that when deputed for examination work, you failed to disclose candidature of brother is illegal on your part.
Whatever stand you had taken is taken and now you cannot invent new defence i.e. not knowing of brother's candidate. Inquiry is over.
You have not intimated what was the penalty. Your appeal can be on the quantum of penalty.
You can also appeal on the ground if the inquiry procedure was defective. But you have in this query intimated nothing such.
Guest
(Expert) 07 December 2012
I am sure your conduct rules would not have any such provision that you should not work as evaluator of the books if any of your near relative is a candidate in the exam. Moreover, irrespective of whether he has passed or not, when you have not examined any of the answer books of your brother, there should not be any such charge against you.
It seems your defence assistant, if you engaged any, was not so strong in ruling position. He should have questioned about the provisions of rules on the subject during the inquiry proceedings.
I believe, you still have a strong case for appeal for your appellate authority or for the court/tribunal, if appeal is already rejected.
prabhakar singh
(Expert) 07 December 2012
TRUE I AM NOT EXPERT IN THE SERVICE LAWS.
STILL THINGS HERE LOOKS QUITE CLEAR.
YOU WERE ASKED TO SCRUTINIZE BUT NOT TO EVALUATE.
THEN IF YOU INFORMED THEM THAT YOUR BROTHER WAS ALSO CANDIDATE AND STILL ASSIGNMENT WAS GIVEN TO YOU,RULES OR NO RULES, NO INQUIRY SHOULD HAVE PROCEEDED AGAINST YOU.
iN CASE YOU DID NOT INFORM THEM ABOUT YOUR BROTHERS' CANDIDATURE STILL YOU DID NOT EVALUATE NOR DID TEMPER HIS ANSWER SHEET DURING SCRUTINY AND MORE OVER HE WAS NOT SELECTED THEN NO CHARGE OF BIAS CAN BE IMPOSED ON YOU.YOU OUGHT TO HAVE RUSHED TO HIGH COURT FOR A QUASH OF SUCH A BOGUS BIAS INQUIRY,EVEN IF YOU FAILED,YOU HAVE A GOOD CASE FOR APPEAL.
Raj Kumar Makkad
(Expert) 07 December 2012
As no irregularity has been made from your side so major punishment cannot be awarded. If you suppressed about the candidature of your brother and have not evaluated the copies then maximum minor punishment can be awarded to you so file an appeal.
Sudhir Kumar, Advocate
(Expert) 08 December 2012
The circular/instruction pertaining to examination could not be so vague.
You are lucky if these are vague but you failed to utilise this vagueness in the inquiry.
Even if the circular was silent. The Govt servant is expected to maintain absolute integrity and he was not justified to hide the fact from management that his brother is a candidate.
A constructive advise can be given only on seeing the entire chargehseet and inquiry papers.
Dr J C Vashista
(Expert) 08 December 2012
There is no irregularity in evaluating the answer sheeet of any candidate, even if it was of your brother.
The penality imposed must be challanged before departmental appellete authority, if the same is upheld may send a legal notice and file appropriate application before appropriate Court/Tribunal.
You have a very strong case in your favour and must not accept the punishment.
Raj Kumar Makkad
(Expert) 08 December 2012
You are further advised to immediately obtain the services of a lawyer dealing in service matters.
Sudhir Kumar, Advocate
(Expert) 08 December 2012
Mr Makkar stated "immediately"
The appeal is to be filed within 46 days of the penalty order. At this stage you may not be permitted to discuss anything which was not discussed n the inquiry.
With highest regards I disagree with all those who say that you are innocent and assert that on merits you have no case.
I repeat " A constructive advise can be given only on seeing the entire chargehseet and inquiry papers."
You can hope only on :-
(i) Technicalities and procedural defects of inquiry
(ii)Quantum of punishment.
You have not stated what is penalty, whether any procedural error in the inquiry, whether autonomous body has got own CDA Rules or have adopted CCS(Conduct) and CCS(CC&A) Rules
Raj Kumar Makkad
(Expert) 08 December 2012
*Sudhir! The querist has already told the period when such penalty order was given and 45 days are near to expire so the advice for filing immediate appeal should not be quoted separately as if the same is wonder. Again none can deny that the lawyer dealing the case shall be in a better position to evaluate the case because he shall have the relevant documents with him but what ever told by querist clearly establishes that this is not a case fit for major punishment which includes dismissal from service.
prakash
(Querist) 08 December 2012
SIR, I HAVE SERVED A CIRCULAR THAT WE HV TO DO SOME IMPORTANT WORK.I HV NOT GIVEN CHOICE.
SO FAR AS I KNOW A 30 YEAR OLD BROTHER DOES NOT COME UNDER THE DEFINITION OF FAMILY UNDER CCS RULE.
IN MY DEFENSE I TOLD THAT I AM UNAWARE OF MY BROTHERS CANDIDATURE.
THE INQUIRY OFFICER HOLDS THAT CHARGES ARE NOT PROVED AS THERE IS NO ANY EVIDENCE THAT I AM AWARE OF MY BROTHERS CANDIDATURE & ALSO DUE TO ABOVE FACTS.
A DISAGREEMENT MEMO WAS ISSUED BUT NOT BY DISCIPLINARY AUTHORITY BUT BY SUBORDINATE & LASTLY MY APPEAL WAS REJECTED AS THE PERSON WHO ISSUED THE CHARGE SHEET HAS BECAME APPEALET AUTHORITY AT THAT TIME.
FURTHERMORE, WHEN I MOVED TO CAT DEPARTMENT HAS GIVEN ITS REPLY ONLY AFTER 3RD DATE & FROM LAST 1 YEAR NOT A SINGLE HEARING CAN BE ARRANGED.
THANKS FOR YOUR SINCERE ADVICES.
Raj Kumar Makkad
(Expert) 08 December 2012
You should persue your case before CAT firmly and effectively and I do hope the favourable decision shall come out from that institution.
Dr J C Vashista
(Expert) 09 December 2012
Immediately engage an advocate to persue your case in CAT, if pending adjudication
Sudhir Kumar, Advocate
(Expert) 09 December 2012
I will not give you any advise just because it conforms to your views or even it soothes your ears and eye.
Now you have stated showing the hope line by intimating that "A DISAGREEMENT MEMO WAS ISSUED BUT NOT BY DISCIPLINARY AUTHORITY BUT BY SUBORDINATE & LASTLY MY APPEAL WAS REJECTED AS THE PERSON WHO ISSUED THE CHARGE SHEET HAS BECAME APPEALET AUTHORITY AT THAT TIME."
Rule 15(2)requires the disagreement proposal to be of the view of Disciplinary Authority.
such irregularity can be well utilised provided that the communication did not specify that disagreement was not be the Disciplinary Authority.
More important issue you brought in is that MY APPEAL WAS REJECTED AS THE PERSON WHO ISSUED THE CHARGE SHEET HAS BECAME APPEALET AUTHORITY AT THAT TIME."
This action of department is clearly against Rule 24 (2)(ii) which states that
"where the person who made the order appealed against becomes, by virtue of his subsequent appointment or otherwise, the appellate authority in respect of such order, an appeal against such order shall lie to the authority to which such person is immediately subordinate."
Since the Inquiry report is already favourable to you the flaws (if any) by Inquiry report are not relevant to your defence.
Further the definition of family (different for each benefit to Govt servant) may not be strictly relevant to your case and better not to concentrate energy on the same. It is not the family member but the person related who should not be a candidate but persons related to him even CBSE takes such undertaking from the teachers being inducted in board examination process. I believe that even UPSC seeks such undertaking from its own employees dealing with a particular examination so that they could be shifted to other task for particular duration.
You have taken a defnece that “I AM UNAWARE OF MY BROTHERS CANDIDATURE.’ You are right while ignorance of law is no defence but ignorance of fact can be a defence. . You did not specify that evidence was placed in Inquiry for such defence. This point if already part of defence and irrationally ignored may provide some solace on merits. In many cases CAT does not like to interpret the evidence and may remit the patter to the Appellate Authority.
Otherwise your case is strong on procedure only.
Further you may not be much disturbed by some delay in CAT as CAT is still faster than many courts. Be cool.
Raj Kumar Makkad
(Expert) 09 December 2012
I think all the points of defence might have been inserted in your petition pending before CAT so let the argument take place there and wait for the outcome.
ajay sethi
(Expert) 09 December 2012
well advised by sudhir kumar
Guest
(Expert) 10 December 2012
Diagreement with the inquiry officer's report by NONE ELSO other than the disciplinary authority, the appellate authority or the reviewing authority is valid. So, the question of disagreement by a subordinate or lower authority of the disciplinary authority has no relevance.
Further, if the disciplinary authority happens to become appellate authority subsequent to issue of charge sheet, scope of element of bias can not be overruled in his decision on appeal as appellate authority.
In nut shell, I still believe, your case is strong. You can either submit the case for review by the reviewing authority or can file a case in the appropriate law court (Tribual or HC, as the case may be). The only thing you require is strong presentation of the case, if in tribunal/HC, by an expert lawyer in service matters.
prakash
(Querist) 10 December 2012
SIR, IN A DEPARTMENTAL PROCEEDING POWER CAN NOT BE HANDED OVER TO A SUBORDINATE, SO DISAGREEMENT MEMO MUST HV TO BE ISSUED BY THE DISCIPLINARY AUTHORITY.
IT WAS A WRITTEN EXAM. NOT AN INTERVIEW WHERE I CAN AFFECT THE PROCESS BY MY MERE PRESENCE. ALSO, I WAS NOT IN THE INVIGILATION, I AM IN THE SCRUTINY OF ANSWER SHEET ONLY, WHICH I HV DONE HONESTLY.
NO ANY UNDERTAKING WAS TAKEN BY ME.
THE ONLY CHARGE WAS THAT I HV CONCEALED MY BROTHER'S CANDIDATURE.
CCS RULE CHARGED ARE 3(i)(ii)(iii). WHICH SAY MAINTAIN ABSOLUTE SINCERITY, REMAIN DEVOTED TO MY DUTY, DONE NOTHING WRON.
I HV MAINTAIN ABSOLUTE INTEGRITY, REMAINED DEVOTED TO MY DUTY & HV NOT DONE ANYTHING WRONG.
I WANT TO KNOW IS THERE ANY CCS RULE WHICH STRICTLY SAYS THAT U CAN NOT PARTICIPATE IN AN EXAM. IF ANY OF UR RELATIVES IS A CANDIDATE?
Guest
(Expert) 10 December 2012
You seem to be stretching the thread too far with trivial and extraneous matter with your layman-like supplementary queries, while you have received enough advice so far. What you were required to ask during cross-examination of witnesses in the inquiry proceedings, you are asking from the community members here. It is a common charge, which every charge sheet contains. The question arises when you have not violated any specific rule or procedure, your integrity does not become questionable.
The simple thing is that you were assigned certain duty, which you accomplished honestly and sincerly, without any favour to your brother or anyone else by giving grace marks, as you were not assigned with the marking of the paper of your brother.
So, try to give proper attention on your review/ court case only, instead of trying to expand your query just to confuse yourself. Any casual approach may not help you. Better hire the services of some expert to make your case strong by getting your case thoroughly examined by him, rather than patching up your case yourself with bits, as you may gather through responses on your own layman-like casual queries.
prakash
(Querist) 11 December 2012
RESPECTED SIR, MY QUESTION WAS ADDRESSED TO SUDHIR SIR, WHO QUOTED DIFFERENT EXAM. SEEKING UNDERTAKING.
MY PROCEEDING ENTIRELY DEPENDS UPON VIOLATION OF CCS RULES AS THERE WAS NO ANY OTHER IRREGULARITY.
I JUST WANTED TO KNOW WHETHER THE ALLEGATION OF VIOLATION OF CCS RULES IS GOING TO STAND OR NOT.AND IS THERE ANY CCS RULE ONLY ON THE BASIS OF WHICH ONE CAN BE HANGED?
THAT'S WHY I TRY TO CLEAR IT WITH YOU & UTILIZE UR EXPERIENCE & KNOWLEDGE.
ANY WAY THANKS FOR YOUR VALUABLE SUGGESTION.
I HV ALREADY CONTRACTED A LAWYER & I & NEED OF UR BEST WISHES & GUIDENCE. THANK YOU.
Raj Kumar Makkad
(Expert) 11 December 2012
If you have obtained the services of a lawyer and has handed over your matter to him then it shall be good to follow only his advice.
Guest
(Expert) 11 December 2012
Dear Prakash,
Your yesterday's supplementary query was not addressed to any particular person, as against your statement that the question was addressed to Shri Sudhir Kumar. So, the question was open to anyone of the community members to reply.
However, in my opinion, no violation of CCS (Conduct) Rules was involved in your act for discharge of your specifically assigned duty.
My best wishes are always with the right persons for right actions.
prakash
(Querist) 11 December 2012
THANKS, I AM WAITING FOR THE REPLY OF SUDHIR SIR TO KNOW,"IS THERE ANY CCS RULE WHICH STRICTLY SAYS THAT ONE CAN NOT PARTICIPATE IN THE EXAMINATION PROCESS IF ANY OF HIS RELATIVES IS A CANDIDATE?"
Sudhir Kumar, Advocate
(Expert) 11 December 2012
As per rule 3(1)(i) a Govt servant has to maintain "absolute inytegrity"
The word "absolute " is prefixed with integrity only and no other conduct is expected to Govt servant as "absolute:.
CBSE seeks a certificate from all teachers engaged in board examination 9including non-Govt servants) that none of their relative (not merely family member) is candidate in the examination. Evne if they do not deal with copies of such relative.
Your organistion may be having a similar circular. Even if there is no such criculat you do not have a license to hide the material fact of your brother candidature and participate in the examination procedure
Interpretation of conduct rules is left with the Govt
You have described that you have been procedurally wronged up. There are serious flaws in the process of penalty and appeal.
It is not clear as on which grounds you have challenged the penalty.
prakash
(Querist) 11 December 2012
THANKS SIR, THANKS A LOT. I AM SUBMITTING SOME PART OF THE APPEAL BEFORE YOU:
The charge of ulterior motive is a wild allegation:
In the memo of charge without giving any reason it is erroneously alleged that knowing fully well that that his brother is appearing in the examination he had not dissociated himself from the examination process in accordance with well established ulterior motive.
I beg to submit that no evidence or witness is produced anywhere in the enquiry which can prove that the appellant is aware of the candidature of my brother. Whereas the facts that place of filling of the application form of my brother as well as address of correspondence of us are different.I had neither scrutinized the application form nor invigilated the written test and also no irregularity was found in the answer sheet of my brother & he stands 3rd against 2 seats.
These all establishes about the unawareness of the appellant & shows that there was no ulterior motive of the appellant in associating himself with the evaluation work.
The crux of the charge sheet is the ulterior motive though the prosecution has nowhere in the charge sheet nor at any stage of hearing mentioned or defined what the motive was or what act was committed or was transpired to be committed by the charged officer. In a democratic setup, a questioned motive must be defined, described, and be proved; otherwise it just remains a wild allegation & renders the entire departmental proceeding as misconceived.
2. The disagreement memo was legally void:
I beg to submit that though the disagreement order was required to be issued by the Disciplinary authority (in my case The Director General) it was issued by Director Vigilance who has no authority on the matter as the issue is quasi judicial and cannot be delegated to a subordinate authority. The order has been addressed in first person by the Director Vigilance as is clear in his letter in second para of page2 where he has used terms like I do not agree and I am of the opinion etc. which establishes that it is not a speaking order issued by the Disciplinary authority as required under the law. It is therefore legally void.
3. The disagreement memo is against the letter and spirit of the CCS (CCA) Rules, 1965:
In the disagreement memo in the last para following observation has been made, “Hence the Disciplinary Authority has disagreed with the findings of the Inquiry Officer and held that the charge is fully proved against the charged officer”.
In this regard it is respectfully submitted that according to letter no. F.N0.11012/12/2010-Estt.(A) of Government of India, Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training) the communication forwarding 'the I.O.'s report etc. does not contain phrases such as 'Article of charge is fully proved' or 'Article of charge is fully substantiated' which could be construed to mean that the disciplinary authority is biased even before considering the representation of the charged officer and this would be against the letter and spirit of the CCS (CCA) Rules, 1965.”
4. The reason of differences from enquiry report & the appellants representation is not mentioned:
The enquiry officer after conducting an exhaustive enquiry submitted that it would have been easier for the charged officer to help/influence the selection of his brother if indeed he wanted by virtue of his proximity to several others who were closely connected with the examination process & therefore, the “ulterior motive” of which C.O. is charged could not be established. This shows the innocence of the appellant & proves that the very basic of the charges were not established. The Director Vigilance in his disagreement memo has not touched/ disagreed with it. In this view of the fact the order of imposing penalty based upon presumptions only primafacies appears to be unreasonable.
It is respectfully submitted that a bare perusal of the order of punishment would reveal that the contention of the appellant as raised in his representation to the disagreement memo has not been taken in to consideration rather the reasons mentioned in the disagreement memo has been reiterated which also renders it illegal.
5. Passing of the orders by the Disciplinary Authorities is unduly delayed–
In the OM No. 39/43/70-Estt. (A) dated 08.01.1971, it has been envisaged that it should normally be possible for the disciplinary authority to take a final decision on the enquiry report within a period of three months.
I beg to submit it respectfully that about 16 months has been taken b/w submission of enquiry report & delivering the final order.
Prayer to your honour for kind consideration of the facts and appeal for justice:
Though ulterior motive has been the crux of the charge sheet it has nowhere been defined or proved & also no evidence/witness is produced to establish it.
No illegal act has been shown to have been committed or transpired to be committed with such ulterior motive.
The disagreement order is full of irregularities, improper, legally void and biased.
The disagreement with the findings of the Inquiring Authority has been done on the basis of assumption only.
Your Honour,
My only involvement in the aforesaid examination was as an evaluator & I have done the job assigned to me with utmost honesty & devotion without doing partiality to anyone which is an established fact.
On the basis of above facts I appeal that I exhibited absolute integrity, remained devoted to my duty, done nothing to unbecoming of an employee of the ESI Corporation & has not violated any rule of CCS.
I pray your honour to kindly consider the above facts and give me justice.
Thanking you.
Sudhir Kumar, Advocate
(Expert) 12 December 2012
This is only advisory forum and not competent to grant any relief.
Your facts have been appreciated. Your ignorance of your brother's candidature, the way you described does not lead to any in fallible inference of innocence. Although it creates shadow of doubt in your favour.
You could have also produced brother as a witness.
You have been advised the best possible. I hope there are not more facts.
Procedural aspect as described by you is definitely fatal. So brief your counsel well and argue matter before CAT well. You can hope success.
Raj Kumar Makkad
(Expert) 12 December 2012
I do agree with the conclusion of Sudhir.
