PREFACE

Domestic Enquiry – Battle Between

GOLIATH V/S DWARF
Disciplinary Proceedings and Mockery
of Justice

Disciplinary Authority, Appointing Authority, Subordinate Authority, Inquiring Authority

– and thus a lot of authorities gather around an accused bank /government employee with
preliminary inquiry, suspension, formal inquiry, minor penalty, major penalty, conduct rules,
principles of natural justice, review, revision, appeal etc. for the purpose of prompt disposal
of disciplinary proceedings in conformity with statutory rules. The objective of disciplinary
proceedings is not only for meeting out proper justice, but also for ensuring that a delinquent
bank /government servant is not left free-unpunished. One wonders whether or not such an
objective as given in the Manual of Disciplinary proceedings can administer proper justice!
On one side, disciplinary enquiries are initiated, conducted and concluded by the
administrative authority and on the other side; employees are rushing to the courts of law for
getting “Judicial Justice” over the “administrative justice” already awarded. In many cases,
the courts of law turn down the “Administrative Justice” pronouncing that the “Justice
Imposed” is infact “Not Justice”, rather is “Miscarriage of Justice” or “Injustice Proper”.

How many Bank /government employees are in a position to move the higher judiciary to
get justice in disciplinary proceedings? No doubt, it is an expensive affair and therefore
many of the lower level functionaries suffer the suffering – consoling themselves that they
are condemned to suffer the punishments, however, unpalatable they may be to them. A
scrutiny of the judgments in departmental inquiries from the courts of law will show that the
“so called inquiry authority, disciplinary authority, and appointing authority” dispense
justice with a total ignorance of the basic rules and procedures in administration of justice.
The Manual for Disciplinary Proceedings, in its ‘Introductory’ itself, writes “An improper
application of disciplinary rules has led to many a guilty bank /government servant escaping
punishment”. What does it mean? It means that the so called authorities are playing with the
future of the employees with their ignorance. What does the bank /government do to rectify
the defects? It is learnt that no purposeful training is imparted to the inquiring authority to
study rules and procedures to administer proper justice in disciplinary proceedings. The
impact is that many inquiring authorities conduct the inquiries in the way they want them to
be conducted.

Inordinate delay in initiating disciplinary proceedings, undue delay in completing the

proceedings, filing false minutes after conducting an inquiry, initiation of proceedings
without having any jurisdiction to do so, suspending employees without any justifiable
reasons, sugar-coating “public interest” to harass the employees, suspending bank
/government servants with retrospective effect, retaining the suspended in that state for
years together, not conducting the review of suspension order within six months from the
date of suspension, conducting the inquiry without observing the basic principles of natural
justice, imposing penalties in an adhoc fashion, converting minor penalties to major penalty
without giving any regard to natural justice-principles etc. are found to be a few among the
many grounds on which the courts of law quash the enquiry proceedings, findings and
judgements of the administrative authorities. This shows how deplorable is the state of
affairs!

An authority becomes an authority only when it is properly, fairly and justly administered.
Otherwise, it becomes misuse of authority or exercise of pseudo-authority. The Appointing
Authority, the Disciplinary Authority and the Subordinate Authority etc. as the law calls
them are not judicial functionaries. They are individuals having graduation or post-
graduation in science, arts, commerce, education, social sciences or subjects of like nature.
They are, in general, journalists and by that reason alone they should not be entrusted with
quasi-judicial functions for which specialized knowledge in rules, laws, procedures and their
application in a judicious way become essential. These authorities are empowered to award
penalties which are very severe-more severe, sometimes, than the penalties imposed by the
penal laws of the Country. Withdrawal of increments for a period of time is sometimes
harder than the fine imposed by criminal courts. When increments are withdrawn with
cumulative effects, the total monetary loss to the employee during the period he is in service
and later during the period of his retirement may run to several thousand rupees and this is as
bad as a penalty imposed on a smuggler, drug-peddler or a hard core criminal, Reduction in
rank too has such irreparable penal; significance. Compulsory retirement, termination,
removal dismissal etc. have heavy and far-reaching penal impact, sometimes more than
incarceration for a life-time. Anyway, the light heartedness and the laxity with which the
administrative authorities impose penalties on accused bank /government employees become
a topic of disheartening discussions and adverse criticisms in many circles. No doubt,
inequities should be conducted by an authority who can apply his mind in a judicious way-or
at least in a quasi-judicial manner-so that there should not be any scope for miscarriage of
justice or allegation of pseudo-authority being exercised.

Disciplinary proceedings is conducted by “Authorities” and by that reason alone, that

victims of disciplinary proceedings become people who do not have any authority.
Appointing authority or Disciplinary authority (in certain cases) is empowered to inflict
penalty on the enquired. Examination, cross-examination, trial, equity etc. are conducted by
the “authority”. He sends up his “minutes” of inquiry without any recommendations as to the
penalty to be imposed on the delinquent. On the basis of the minutes, another “authority”
imposes punishments which may be very severe or light. This sort of imposition of penalty
by “Remote Control” might have come into existence because of certain technicalities and
legal requirements. This is felt to be an unjust procedure and there is a view that the
authority which conducted the quasi-judicial trial should be vested with the power of
imposing penalty / recommending penalty.

There exists a total confusion when the Manual for Disciplinary Proceedings lays down
the principle, that “Disciplinary Inquiries are fact-finding investigations by administrative
authorities to which the standards of a criminal trial cannot be imported”. First of all, the
disciplinary proceedings is not a “fact finding” investigation; rather it is a quasi-judicial
trial”. The courts of law, time and again, have reiterated that “Disciplinary proceedings,
before a domestic tribunal are of quasi-judicial character. Therefore, the minimum
requirement of the rules of natural justice is that the tribunal should arrive at its conclusion
on the basis of some evidence-i.e. the evidential material which with some degree of
definiteness points to the guilt of the delinquent in respect of charges against him. Suspicion
cannot be allowed to take the place of proof even in domestic enquiries (Nand Kishore V.
State of Bihar, A.I.R. 1978 SC 1277; (1978) 3 S CC 366).

The rule is that any “Authority” which moves the “Disciplinary Authority” for orders to
institute an enquiry shall conduct such preliminary enquiries as may be necessary to
ascertain whether prime facie grounds exists for disciplinary action. Nevertheless then are
number of instances in which disciplinary proceedings are initiated without conducting
preliminary enquiries. Since, all these irregularities are committed by some “authority or
another”, the helpless employees have to suffer the consequences by themselves if they do
not go to still higher authorities by an appeal or to a court of law by a litigation. There are
allegations that sometimes; preliminary enquiries are conducted in a ritualistic manner by
some favoured officers to be “authority” which decided to conduct such enquiries. Invariably
in some cases the “authority” instructs the officer conducting preliminary enquiry to write a
report in the way he/she wants it to be written. And there begins a series of harassment to the
employee. Later, an “Inquiry authority” comes to the picture and in some instances; he too
conducts the enquiry with bias, prejudices and preconceived notions about the enquired. Still
later comes a “punishing authority” who may award a penalty in the way he wants. Since the
Conduct Rules speak only of penalty and no specific penalty for specific misconduct, the
p0unishing authority is at liberty to award any type of punishment as he wants.

Since the inquiries are conducted by the departmental authorities, they can adopt an
authoritarian attitude and approach towards the subordinate against whom the inquiry is
conducted. At the same time, the so alleged delinquent have to stand in folded hands
expressing submissiveness and ‘flat-attitude’. Though the Manual for Disciplinary
Proceedings assert that an enquiry is only a fact finding investigation – the courts confirm
that it is a quasi-judicial enquiry-the procedure prescribed is that of a trial by an inquiry
officer. In certain cases, the rule permits the appointment of lawyers to present and defend
the case before the inquiry office. In certain other cases, the rules permits the appointment of
presenting cum prosecuting officers in which case the delinquent is permitted to get the
services of another bank /government servant to examine or cross examine the prosecution
witnesses. There are cases in which no presenting officers are nominated and in such
instances, the rule permits the inquiry officer to question the prosecution witnesses for
bringing out in evidence all points relevant to the inquiry on which a prosecution witness
may be able to testify with reference to the charge/s, statement of allegations and any new
facts which may have come/s to light during the course of inquiry. Here, the inquiry officer
has to function like a presenting officer and necessarily he becomes interested to see that the
witnesses testify all points with reference to the charge/s, statement of allegations and any
new facts which may have come to light during the course of the inquiry. Most unfortunately
and surely against the principles of fair and natural justice, the rules, in such instances, do
not allow the inquiry officer to cross examine the prosecution witnesses. This in unjust and
cannot be approved. The rules here are so framed that the inquiry officer functions naturally
and of necessity in a way prejudicial to the interest of the delinquent employee.

No doubt, the rules work prejudicial to the interest of the delinquent employee. This is
further proved when the rule empowers the inquiry officer to cross examine only the defence
witnesses in all cases for which he himself functions as the presenting cum inquiry officer. It
is not understandable to the principles of natural justice to permit the inquiry officer to
perform as the presenting cum inquiring authority in a quasi-judicial proceedings. The
presenting cum inquiring officer who cross-examines the defence witness is not empowered
to cross-examines prosecution witnesses and it means that the rule expects a quasi-judicial
authority to function only as a prosecuting authority. This is nothing but miscarriage of
justice. There are valid case laws which say that cross-examination of defence witnesses by
the inquiring officer is in plain violation of the principles of natural justice.

Even otherwise, the inquiry officers’ honesty and impartiality in many cases are viewed
with suspicion by the delinquent employees. There are any number of court decisions to
prove this contention of the delinquent bank /government servants. There are cases in which
police officers are appointed as inquiring authority. A delinquent may be a civilian employed
in the police department. If it is a proceeding in which no one is nominated as the presenting
officer, in such instances, the police officers themselves function as presenting-cum-inquiry
officers. Police Officers are well trained in prosecution work, they know to examine and
cross-examine witnesses and in such instances, what can a civilian employee who is not
similarly trained in prosecution work do? The well trained police officer in prosecution work
may cross-examine the defence witnesses, sometimes better than lawyers do, and the same
time the delinquent employee who is a laymen in legal procedure/art of cross examination
can but cut a sorry figure when he cross-examines the prosecution witnesses. The general
feeling is that only miscarriage of justice will be the outcome in all such disciplinary
proceedings in which police officers function as inquiry officers. The same situation comes
in the case of constables who face a disciplinary proceedings conducted by circle
inspectors/Dy. S.P. /S.P. and so on.

How many of the inquiry officers are really competent to conduct a domestic inquiry? Do
they possess adequate knowledge and expertise in conducting inquiries? My own experience
as defense representative in leading bank employees union India in the capacity of general
secretary for over 23 years having handled many cases in this area shows to be quite
disappointing. Most dishearteningly enough, it is found that a good many inquiry officers
take an attitude unfavourable to the accused in domestic inquiries. They are inclined to think
that their duty is to see, somehow or other that the employee punished.

Even police officers who are appointed to function as inquiry officers are accused of
adopting objectionable attitudes to delinquent employees. In Karunakaran Nair V. Union of
India (1985 K L T 680), the presenting officer was an inspector of police. The delinquent
pleaded for permitting him to engage a lawyer to defend him. The request was summarily
rejected and the delinquent was punished. A suit was filed before the court and the court
observed that: Normally a layer has no place in a disciplinary inquiry. But, when the
presenting officer, even if he is not a lawyer, is one who is well trained in prosecution work
and if the delinquent officer cannot have the services of a legally trained person and is
allowed only to have the services of a colleague of his who, in the normal course, will not be
well trained in the subject, it goes without saying that, that will be nothing but denial of an
opportunity to the officer to defend himself in the disciplinary inquiry. In this case, the C.B.I
Inspector who was the presenting officer, in the normal course, was more than a lawyer and
the denial of the services a lawyer to the delinquent officer was nothing but denial of natural
justice to the delinquent office, and this has vitiated the whole discipline inquiry. Stating so,
the court set aside the order of the punishing authority. If such ignorant person sits on the
seat of the Inquiring Authority, the harm caused to the accused employee can be more or less
imagined.
Whatever may be the justification the administration has to put forward in framing rules to
conduct disciplinary proceedings with authorities ignorant about the basics in fairness,
justice and objectiveness, one cannot appreciate the state of affairs presently seen in
departmental inquiries. Most shockingly, the penalties prescribed for the misconduct of
employees are really severe in many ways and are having ramifications in several
dimensions. To see that such penalties are awarded after conducting disciplinary proceedings
in a ritualistic fashion by “authorities” having little or no knowledge in the subject is really
disheartening. Presenting officers, defending officers, inquiry officers – all these
nomenclatures are good to hear, but are of no value when they are ignorant about the
fundamentals of inquiry proceedings. As it is, the delinquent employee is deprived of getting
the services of a legally competent person to defend his case especially when no legal expert
has been nominated to present the case. Even when legal experts appear to present and
defend the case before the inquiry officer, they see an “authority” quite incapable of
understanding the legal jargons and technical words. In one case, the inquiry authority did
not understand the meaning of the words “Locus standi”. In another instance, the implication
of the words “jurisdiction of the inquiry authority” could not be made clear to the officer
inspite of several hour’s argument. All these show that there takes place mockery of justice
in a good number of the disciplinary proceedings.

The injustice or miscarriage of justice done to the middle level and lower level
functionaries in administration is known to many. As such, many Service Associations come
forward to aid the affected employees to win over the battle. Many Service Associations
have huge funds at their disposal so much so that they come forward to extend their help and
financial assistance during a period when the delinquent employee is under suspension. The
authorities in some cases do not sanction the subsistence allowance in time and in many
instances, it is found to be a calculated attempt to victimize the suspended employees. The
Service Associations are fully aware of this sort of vindictiveness and that is the precise
reason why they come forward to support the employees with financial assistance. The
leaders of the Service Association meet and exert influence, politically and otherwise, upon
the disciplinary authorities to see that gross injustice is not done to the delinquent
employees. They also come forward to appear for the employees during the inquiry
proceedings and if necessary to take up the case to the courts of law. There are cases in
which the disciplinary authority himself is transferred out owing to his atrocious attitude
towards the employees.

In some States in India, Service Associations/unions have become very powerful so much
so that the “authorities” are diffident to take disciplinary action against employees even in
deserving cases. As a result, they ignore or overlook delinquencies committed by the
employees. “Don’t fight with the Employees” – seems to be the developing attitudes. Any
authority has got its limitations and in a democracy, it is to a considerable extent, controlled
by the vote banks. The Service Associations of lower level and middle level functionaries in
Bank /government contain a large number of people who are the vote banks and therefore
they are being sponsored and patronized by political leadership. The authority in power
seems to be afraid of the Service Associations/unions so much so that they think several
times whether or not disciplinary proceedings should be initiated against employees if they
are actively engaged in “Association” works.

Who is this “Authorities” in a democracy? They are individuals who occupy certain posts
and in many instances, they continue in the post because of political patronage. No person is
indispensable in bank /government service and as such an officer who honour the post of an
“Authority” can be transferred out if that needs be in a democracy. If that is the case, no
authority is permanent in a democratic rule. Officers come and occupy posts and they enjoy
some authority – may be disciplinary, may be appointing, may be subordinate, maybe
inquiring. And they know that fighting with employees cannot solve problems. When a lion
and a cat fight each other, the cat may be killed, but at the same time, the lion may be
seriously injured. Who is the lion in Bank /government services? The authorities may be
inclined to think that they are the “LIONS”. The service Association Members may think
that they are also the “LIONS” and the fight may continue. An Association consists of a
“group of people” whereas an Authority comprises only of an “individual”. In a fight
between an “individual and a group”, the success depends upon many factors other than
authority per se. Anyway, the “Authority, Association, Individual, Group, Delinquent
Employees, Misconduct, Political Pressure and Patronage, Discretion, Discrimination, Minor
and Major Penalties, Aid and Assistance to Delinquent Employees, Helplessness of the
authorities, Gross Injustice, Court Interference, Media Coverage, Vote Banks, the Rules etc.”
do affect the disciplinary proceedings in Bank /government Services. A total confusion is
seen everywhere.

I express my sincere thanks to my daughter and son- in- law , Divya and Dhruvin , for
their support to author this title. My past dedicated leaders in my union life ’ sense of justice
in “domestic inquiries” they conducted he inquires inspired me to author this book. With that
sense of justice infused into me by mentors in my union , I cannot now withstand the gross
injustice done by the so named authorities while they conduct disciplinary proceedings in
official transactions..

Hence I am bringing out this title in this free

eBook .the Google link of this book is given below. I
have implicit faith that the new generation of the
bank employees who are bold and vocal in their
convictions as could be discerned from their stand,
posts in social media will fight against this injustice.
I hold the ardent conviction that the union is yours, as
well as ours, but in the last analysis, it is yours. You
young people, full of vigour and vitality, are in the
bloom of life, like the sun at eight or nine in the
morning. My hope is placed on you. The future of the
bank /Govt/PSU employees’ union movement
belongs to you. My objective of bringing these books
is to help all our young people to understand that
injustice meted out to employees in domestic
enquiries as explained by me above. We cannot
change this situation radically in a short time, and
that only through the united efforts of our younger
generation in trade union movement working with
their own hands, the movement be made strong and
prosperous within a period of few years. The
establishment of an ideal union system has opened
the road leading to the ideal society of the future, but
to translate this ideal into reality needs hard work.
 , Finally, I wish to state that the views and opinions expressed in this book are personal or
based on researches, experience conducted on the subject. They do not reflect the views of
the Bank /government, Police or Home Offices.
In case you find this free e book of mine worthy i have small request to make of you.

Dear comrades,
I have put in hard labour, time and money from my measly retirement savings in
publishing TWO BOOKS IN DOMESTIC ENQUIRY

Volume 1: KNOW YOUR DEFENCE IN DOMESTIC ENQUIRIES (a guide, tool and

weapon for defence representatives) pages 702, MRP Rs.700
&
Volume 2: PART 1 KNOWS ART OF CROSS EXAMINATION IN DOMESTIC
ENQUIRIES (PART 1) (A rare book with concepts explained lucidly with number of
practical illustrations)
And
PART 2:PRACTICAL GUIDE TO DEFENCE REPRESENTATIVES IN HANDLING
CHARGE SHEETS AND ENQUIRIES (part 2)( With Practical Illustration of Reply to
Charge Sheets, Defence Brief, Model /Mock Enquiry Proceedings with Several Case
Studies)pages of part 1 and 2 combined 772 pages

I have self-published this book with NOTION PRESS. THEY ARE AVIILBLE.

They are also available on Amazon.in, Flipkart, Infibeam, Notion press website,
Amazon.com, eBook platforms,

 https://notionpress.com/read/chinu-s-notes-on-know-your-defence-in-domestic-enquiries-volume-1

https://notionpress.com/read/chinu-s-notes-on-know-the-art-of-cross-examination-volume-2-part-i

 Just type Chinu’s notes in Google many sites of my book will pop up and place the
orders for the BOOKS and bring to the notice of your friends send me your email
addresses after purchasing the paper back. I am making arrangement for these two books
in android/kindle (e-book) format so that you can view the pages in your smart phone or
tab, and use it freely at the time of the enquiry. I will send you the link once this task is
ready.

With revolutionary greetings

Love
S.SRINIVASAN
 Former General Secretary All India Overseas Bank Employees Union.
 Former President Of National Union Of Bank Employees’ (NUBE)
 Former Workman Director Indian Overseas Bank (IOB) For Two Terms
 Former Joint Secretary Of National Confederation Of Banks Employees'(NCBE)

CONTENTS
1. Disciplinary Proceedings and Injustice
2. Suspension : Its Impact and Injustice
3. Discipline, Misconduct, Conduct Rules and Disciplinary Injustice
4. Inquiry Proceedings, Memo of Charges and Injustice
5. Formal Inquiry, Procedure and Injustice
6. Final Statement of Defence
7. Penalities and Objectives
8. Major Penality: Its Implications and Execution
9. Disciplinary Inquiries and The Courts
10. Improving The Systems

Appendices

1. Disciplinary Proceedings and Administrative Injustice: A Case Study

2. Case Laws on Disciplinary Proceedings from High Courts and the Supreme
Court of India
3. Memo of Charges for Imposing Major or Minor Punishments

Bibliography

Index

CHAPTER – I
 Domestic Enquiry – Battle Between
GOLIATH V/S DWARF
Disciplinary Proceedings and Mockery
of Justice
“Disciplinary inquiries are fact finding investigations by administrative
authorities to which standards of criminal trial cannot be imported” – says the
Manual for Disciplinary Proceedings in a State. ‘Investigation’ means, ‘probe into
for finding out the truth’. What is really meant by ‘fact-finding investigations’ is not
clear. It is stated here that the standards of criminal trial cannot be imported to
the fact finding investigations. A trial is different from investigation and is different
from the other. Infact, a trial follows investigation. Both are two steps which come
consecutively and not concurrently and precisely therefore, both investigation and
trial cannot be or better, should not be mixed together in a definition. Mixing them
together causes confusion as both the inquiry authority and the enquired become
at their wit’s end. In essence, disciplinary enquiry is a quasi-judicial process in
which an investigation is followed by a quasi-judicial trial. The enquiry officer here
becomes a Domestic Tribunal. The purpose of the quasi-judicial enquiry-cum-trial
is to inflict a penalty on an employee who, if found guilty, is alleged to have
committed a misconduct. If, after the quasi-judicial investigation and trial, he is
found to be innocent, he will be exonerated of all charges leveled against him.
Exoneration means a clean acquittal in the language of the Criminal Procedure
Code. In fact, the executive authority who conducts the enquiry has an authority to
impose a penalty which is more severe than the criminal courts. Major or minor
punishments such as dismissal, discharge, compulsory retirement, reduction in
rank etc. are more severe than a fine imposed by a court of law in criminal cases.

Disciplinary proceedings are conducted by the executive authority and studies

conducted on the capacity of the executive authority show that they lack academic
schooling and information about the standards of criminal trials. Some of them do
not know what is exactly meant by ‘quasi-judicial’ and yet the enquiries are
conducted and employees are punished. Their lack of knowledge in the subject,
principles in the proceedings, principles about natural justice or reasonable
opportunity etc. causes serious miscarriage of justice. The courts of law repeatedly
quash disciplinary proceedings merely on the ground of procedural irregularity and
violation of the principles of natural justice.

CASE EXAMPLES

1. The charge-sheet and the statement of allegations furnished to the petitioner

clearly showed that the disciplinary authority started with the assumption
that the petitioner was guilty of the charges framed against him and that
even before an enquiry was conducted, it was assumed that the charges were
proved against him. The punishment which was proposed to be imposed
upon the petitioner was also specified in the charge-sheet. It was held by the
Court that it could not be said that the disciplinary authority conducted the
enquiry with an unbiased and open mind1.

2. The inspector general of police in his letter written to his subordinate officer
requested to deal with the sub-inspector of police and punish him for
misconduct and report compliance. The court observed: “it cannot be said
that conclusions reached against petitioner have been reached without the
person holding the inquiry being influenced by the direction of the inspector
general”. The court therefore quashed the punishment awarded to the S.I. of
Police.2

Instances are plenty to show that the administrative hierarchy exerting

influence on the subordinates to see that the employees alleged to have committed
misconduct are 0punished and for such misuse of authority, there is no adequate
remedy. In one instance, a superintendent of police wanted to initiate disciplinary
proceedings against a fellow associate. He was close to the director general of police
who was rated to be a man of low moral caliber. The superintendent of police along
with the director general could manage to find out an instance of misconduct
against the government employee and that was an incident related to a traffic
accident which occurred about seven years ago. A case was registered,
investigated, tried and acquitted by the court and all was over about four years
ago. There was no scope for any sort of departmental enquiries at that belated
time. Anyhow, the superintendent and the director general managed to see that the
employee was placed under suspension – after seven years since the incident took
place – for conducting the enquiry.
 The accused government employee was working in a special unit of the police
department. There was an inspector general of police for that wing. Instead of
entrusting the enquiry to be conducted by the inspector general of police under
whom the delinquent employee was working, the enquiry was entrusted to an
inspector general of police who could be influenced by the superintendent of police
and the director general of police.
The inspector general of police who was entrusted with the enquiry had a
notorious moral past and one wonders whether or not he could administer proper
justice. Being influenced by the director general of police, he delayed the inquiry
proceedings and thus the government employee remained under suspension for
nearly ten months. It appeared that the inquiry officer had the intention to drag
the enquiry as far as he could. In such instances what justice could be expected
from such officers entrusted with quasi-judicial inquiries?

In another instance, the enquiry officer conducted the enquiry with the
assistance of people who had no locus standi in disciplinary proceedings. When
objected to the procedure, he became angry and stated that he would conduct the
enquiry in the way he wanted. Of course, the procedure caused acute mental
tension and embarrassment to the accused officer. The enquiry officer failed to
appreciate the fact that he was a Domestic Tribunal and he alone should conduct
the enquiry without undue interference, promptings and discussions by people
who had nothing to do with the enquiry proceedings.

QUASI-JUDICIAL INQUIRY AND PRINCIPLES OF NATURAL JUSTICE

As stated earlier every departmental inquiry is quasi-judicial in nature. The

enquiry officer and the punishing authority are bound to adhere to the principles
of natural justice. The requirements of natural justice, as shown in the Manual For
Disciplinary Proceedings, are –

1. The person accused should know the nature of the accusation made;
2. He should be given a reasonable opportunity to state his case; and
3. All the acts done and decisions taken must be in good faith.

“The principles of natural justice are not embodied principles. What principle of
natural justice should be applied in a particular case depends on the facts and
circumstances of that case”3 – says the Supreme Court. If this is so, how many
officers entrusted with the enquiry know the principles of natural justice? They are
not given special instructions or training in the subject so much so that many of
them conduct disciplinary proceedings in the way they want to. Instances have
been reported that –

1. enquiry officers adopting procedures which are contrary to the rules of

natural justice4
2. the enquiry officer placed reliance on the statements made by various
persons who were not examined5
3. the enquiry office did not take the evidence in the presence of the delinquent
government servant.6

In Chintaman V. State of Madhya Pradesh, the Supreme Court has stated

clearly the requirements of natural justice in disciplinary proceedings. They are –

1. The delinquent should have the opportunity for adducing all relevant and
material evidence on which he relies. The delinquent is privileged to move
heaven and earth and to produce any sort of evidence to his favour. He is the
affected party.

2. The evidence of the witnesses against the delinquent should be taken in his
presence. The delinquent should be given an opportunity to cross-examine
the witnesses.

3. No material should be relied on against the delinquent without he being

given an opportunity of explaining each one of them. The delinquent has a
right to see all the relevant documents to which he is entitled to have
accessibility.

4. Reasonable opportunity should be given to the delinquent officer to deny his

guilt and establish his innocence. 7 For this, he has a right to know the
charges leveled against him. Also, he should be provided with a statement of
allegations on which each charge is based.

5. Reasonable opportunity also means an opportunity to defend himself by

cross-examining witnesses produced against him and by examining
witnesses who are brought to support his defence. He has a right to make
his representation as to why the proposed punishment should not be
inflicted on him.8
GOODWILL AND ENQUIRIES

All acts taken and done during the disciplinary proceedings should be taken
and done in good faith. The allegation is that one does not find “good faith” in some
of the enquiry proceedings. In most cases, the enquiry officer and the delinquent
officer are known to each other. They know the antecedents of each other and the
delinquent often does not feel that he would get justice if enquired by people
personally known to him. Personal prejudices, parochialism, partiality, illegal
influence etc. are likely to creep into so much so that an officer who is thus
positioned may not be able to take decisions in “good faith” in many cases. There is
a school of thought which advocates that the disciplinary proceedings should be
entrusted to officers who work outside the department in which the delinquent is
employed. Surely it can take away many of the ill-effects of an inquiry particularly
the influence that may be exerted on the enquiry officer by his colleagues,
subordinates or superiors as the case may be. There is yet another school of
thought which even argues that all departmental enquiries should be conducted by
a separate department exclusively functioning for the p0urpose. As good many ‘so
called enquiry officers’ are viewed with suspicion as to their capability, knowledge,
honesty etc. to hold departmental enquiries in an objective, fair and just manner,
there is the need for a separate department established for the purpose. This can
ensure better administration of justice in disciplinary proceedings. Time and again,
one sees that many an enquiry officer lacks “goodwill” in departmental
proceedings. Some of the enquiry officers prolong the enquiries unnecessarily –
they show displeasure when they are questioned by the delinquent. Most of the
enquiry officers want a sort of “submissive attitude” from the delinquent. If the
delinquent become ‘smart’, they are not favourably viewed with. As the delinquent
know that the enquiry officers can surely punish them on some count or other,
they are found to take a tolerating attitude.

CASE EXAMPLES

1. In a disciplinary enquiry, the employer appointed a legally trained officer as

presenting cum prosecuting officer. The delinquent was denied of the
 assistance of a legal practitioner. This showed denial of natural justice. 9 It
also showed the lack of “goodwill” in the enquiring authority. In an enquiry,
it was just common sense to say that the delinquent officer who was a
layman in law could not face a legally trained presenting cum prosecuting
officer. The denial of seeking the assistance of a legal practitioner simply
manifests the “ill-will” of the inquiry authority to provide situations that
would affect badly and adversely the position of the delinquent officer.

2. The presenting officer was a C.B.I inspector. He was well trained in police
and prosecution work. The enquiry officer denied the services of a lawyer to
the delinquent officer. The court later observed that the act of the enquiry
officer was violative of the principles of natural justice. 10 Police officers are
not lawyers. But, as far as legal proceedings and prosecution works are
concerned, they are more than lawyers. Any sensible man might say that the
denial of a legal practitioner to the delinquent would make the balance
unequally loaded in a disciplinary proceedings. After this ruling, it has been
found that some enquiry officers permitting legal practitioners to appear for
the delinquents and some officers do not. This depends very much on the
attitude the enquiry officers have towards the delinquent in each case.

3. The enquiry officer himself cross-examined the witnesses. It again showed

lack of ‘goodwill’ and therefore the court observed that it was violative of the
principles of natural justice11. Of course, the enquiry officer p0utting
questions to witnesses in the absence of a presenting cum prosecuting office
separatively appointed will not vitiate the enquiry. 12 But, what is the
meaning and purpose of cross-examination conducted by the enquiry officer
during a quasi-judicial enquiry proceedings? In some enquiry proceedings,
no presenting cum prosecuting officers may be appointed. In such instances
the delinquent officers – particularly civilians – may have to face a situation
in which they have to encounter police officers. This puts them into
considerable difficulties leading to miscarriage of justice in disciplinary
proceedings.

CHARGES AND NATURAL JUSTICE

The delinquent officer has a right to know the charges made against him
together with a statement of allegations to prove every charges thus alleged against
him. The courts of law have set specific rules for it. “The charges must be specific
and precise and should convey to the delinquent official in the clearest possible
term the act of misconduct leveled against him. This can be done either by giving
the material particulars of the specific act of misconduct in the charge itself or in
the statement of allegations appended thereto”. 13 Most unfortunately, even the
basic and fundamental particulars are omitted in some of the charges. In Md.
Sherif’s case, the charge-sheet did not give even particulars with regard to the date
and time of the alleged incident. 14 How can the delinquent officer prepare his
defence if material particulars are omitted in the memo of charges? Sometimes,
charges are given in a vague manner and of course, such types of charges deny to
the delinquent the reasonable opportunity to defend himself in a meaningful
manner. Further, “the failure to supply statement of allegations and the supply of
vague and indefinite charges would amount to denial of reasonable opportunity” 15
to the delinquent. All these will show that the authority empowered to frame
charges does not know what to do and how to go about it. This is a deplorable state
of affairs which leads of miscarriage of justice in disciplinary proceedings.

The enquiry officers are of many categories. They are –

1. Those who really want to conduct the enquiry in an objective way.

2. Those who really want to conduct the enquiry in a manner detrimental to the
interest of the delinquent.

3. Those who want to conduct the enquiry in a way favourable to the

delinquent.

4. Those who do not want to conduct the enquiry, but are forced to do so.

5. Those who really object to the conduct of the enquiry.

The first category may conduct the enquiry in an objective way provided they
have the knowledge and schooling in law and procedure. Most unfortunately, many
of the enquiry officers lack the same. The second and the third categories are
dangerous people who have no respect for law and administration of disciplinary
justice. The fourth category may conduct the enquiry in an indifferent way. They
are really disinterested, but conduct the enquiry as they do not have any other
option, but to abide by the order entrusting the enquiry to them. The offices in the
last category really show an attitude of objection to hold the enquiry against
anybody. They may feel diffident or may not be mentally prepared to take up this
sort of work for which they do not have any interest, willingness or inclination”.

BENEFIT OF DOUBT AND THE DELINQUENT

The Manual for Disciplinary Proceedings lays down the principles. “It is not
expected that the benefit of every reasonable doubt must necessarily go to the
accused government servant. Where two possible views can be reasonably taken, it
is the right and duty of the inquiry and disciplinary authorities to decide which
view is to be taken in the particular case”. Reasonable doubt means a lot of things
and it should always go to the benefit of the delinquent officer. The refusal of the
authority which is empowered to impose penalty on a delinquent officer to give the
benefit of a reasonable doubt shows nothing but misuse of authority. It is a denial
of natural justice as well. What is the criterion by the help of which one reasonable
view is favoured against another; or disfavoured against the others? The rule says
that it is the right and duty of the inquiring and disciplinary authorities to decide
which view is to be taken in a particular case. The discretion given to the
authorities in such cases paves way for deciding the case in the way they want to.
Prejudices and personal opinions about the delinquent officer are likely to creep
into when decisions are taken in this way. This is unfair and unjust. 16 In Satya
Prakash V. Union of India, it was observed by the court. “The enquiry officer took
into consideration his personal knowledge about the petitioner when he took a
decision as to whether the petitioner was guilty of the misconduct. 17 The Court
accordingly cancelled the punishment imposed. The rule speaks about the right
and duty of the inquiring and disciplinary authorities in such cases. What is meant
my “Right” of the inquiring and disciplinary authorities in a departmental
proceedings? The ‘Right’ is always for the delinquent officer and the authorities
should have fairness and justness when they decide on disciplinary matters. No
doubt, the rule is not framed with fair mindedness.

PRESUMPTION AGAINST THE DELINQUENT

Further, the rule reads: “Where a government servant is shown to have acted in
clear violation of the provisions of the law and prescribed procedures with
reference to an allegation, a presumption will be deemed to raise against the
government servant concerned. The presumption is not conclusive and is
rebuttable in such cases”. This rule shows that the delinquent government servant
is in a disadvantageous position as he is bound to prove his innocence. The burden
of proving that he did not commit any misconduct is placed on the delinquent
employee. In other words, the disciplinary proceedings follows an inquisitorial
model of administering justice wherein the delinquent is presumed to be guilty
until the contrary is proved. India follows an accusatorial system in which an
accused person in a crime is presumed to be innocent until the contrary is proved.
The onus of proof is always put on the prosecution and police to prove the crime
alleged against the accused. In disciplinary proceedings, the laws and rules adopt a
different approach – different from the accusatorial model – and it shows that the
delinquent officer is at a considerable disadvantage.

Instances are plenty that government servants are charged for misconduct after
many years since the incident had taken place. In such instances, it may be
impossible for them to prove their innocence in case the burden of proof is placed
on their shoulders.

NO FAIR AND EFFECTIVE INQUIRY

Can a fair and effective inquiry be conducted at a belated stage? Of course, the
Classification, Control and Appeal Rules do not say anything about it. It is indeed
hard to place the onus of proof on the delinquent and to keep silence about these
vital issues. In A.P. Augustine’s case, this was the question raised. The court
observed: “Any belated enquiry is unlikely to be fair, for at this distance of time, it
would be almost impossible for the employee to defend himself effectively by
adducing evidence in regard to matters alleged to have occurred over two and half
years ago……. His own witnesses may have disappeared or their memory faded.
Whatever evidence that he could have adduced in his favour, had the inquiry
commenced promptly would in all probability have now vanished. No fair and
effective enquiry can be conducted unless it commences within a reasonable time
after the incident. To call upon an employee to defend himself at this distance of
time is probably to put him at considerable disadvantage and thus deny him the
benefit of natural justice”.18

There are not dearth of disciplinary proceedings being initiated against

government servants on incidents that had taken place long ago. In one instance,
the disciplinary proceedings was initiated, after placing the officer under
suspension, for an incident alleged to have taken place about twelve year ago.
Government servants who are not aware of the court rulings on such belated
inquiry proceedings are put into many-fold hardships by putting the burden of
proof on them. It must be accepted that any rule should be for human happiness
and welfare and if it works against them, it should be done away with.

IGNORANCEOF INQUIRY OFFICERS

Inquisitorial system, burden of proof, presumption of innocence, delinquent,

principles of natural justice, reasonable opportunity, benefit of doubt, reasonable
doubt and many such technical words used in a quasi-judicial inquiry are alien
terminologies for officers in the executive or administrative wing of the
Government. Many of the administrative authorities are graduates or
postgraduates in Arts, Science or Commerce. There may be technically qualified
people as well in the administration. Officers who are in the Central Services or All
India Services are also found to be not fully conversant with the intricacies, inner
meanings and ramifications of many of the legal terminologies used in the statutes.
Yet, all of them conduct disciplinary enquiries. In some instances, the adversely
effected government servant moves the courts of law and get the orders of the
executive authority quashed. A study on the expenditure spent to move the courts
to get justice in disciplinary proceedings shows that it ranges from Rs. 6,500 to Rs.
75,000 in individual cases. Instances are not rare that officers in the middle and
lower levels are dragged into disciplinary proceedings initiated on matters which
had occurred about four, five, six or seven years ago. When the total number of
government servants against whom disciplinary proceedings are initiated are
computed-percentage wise as well as volume-wise – it can be seen that their
activities and misconducts are more inquired into than the higher or top level
officers in administration. The higher one goes in the hierarchy, the easier it is for
him to initiate disciplinary actions. Because, he too becomes appointing authority,
disciplinary authority and enquiry authority in many instances.

The knowledge and expertise of the inquiry authority disciplinary authority or

appointing authority can be appreciated from the following judgements of the
courts of law. They are just a few from a legion.

1. An inquiry was conducted. Afterwards, stoppage of two increments was

imposed on the head constable. The D.I.G of police thought that the
punishment was not enough. He recommended to the I.G. of police to
enhance the punishment to one of reduction in rank. The I.G. of Police
accordingly punished him by awarding reduction in rank. 19
 The order was challenged in the Court and the Court observed: Under the
Police Departmental Inquiries, Punishment and Appeal Rules, the inspector
general of police did not have jurisdiction to inflict the punishment on the
head constable”.20

2. Inquiry was conducted and afterwards, the inquiry officer wrote the minutes
stating that the delinquent officer was not guilty of the charges. The
disciplinary authority disagreed with the findings of the inquiry officer. He
imposed a penalty of withholding increment. The decision was questioned in
the court. The Court observed: “When the disciplinary authority proposes to
disagree with the findings of the inquiry officer, it is essential to give a
reasonable opportunity to the delinquent”.21

3. Proceedings for imposition of a major penalty was initiated. Without properly

completing the enquiry following the procedure prescribed in that behalf, the
disciplinary authority cannot make a short cut by choosing to impose a
minor penalty.

Approaching courts of law is an expensive affair and therefore many lower level
functionaries suffer the consequences of disciplinary inquiries even though they
are fully aware that they are very much wronged. Officers in the higher echelon
know it well so much so that they do not seem to be opening their eyes to these
hard realities. “Let them go to the courts” – is found to be sometimes the attitude of
the higher ups in disciplinary actions. It may be reiterated here that the post one
occupies in the administrative hierarchy does not make him competent to conduct
disciplinary proceedings. The impact of an unjust decision in disciplinary
proceedings may be harder than a sentence of life imprisonment in a penal
institution.

The power of appointment conferred by Article 229 (1) of the Constitution

includes the power to suspend, dismiss, remove or order for compulsory retirement
from service. This does not mean that anything can be done by anybody in the
name of enforcing discipline.22 This is a democracy and there are statutes and
rules to govern the government servants. The Government Servants’ Conduct Rules
is one which lays down norms and standards for the conduct of the government
servants in public interest. If a government servant has violated the conduct rules
or any other rules governing the behavior of government servants, disciplinary
proceedings can be initiated. But, they should be done in accordance with law and
procedure established by law. The Manual For Disciplinary Proceedings, of course,
is not a statutory rule. But it embodies some principles and policies which are
acceptable. Some principles are objectionable and the courts of law have been
pointing out such shortcomings in the rules and manuals. People everywhere,
especially those who are employed at the lower levels, demand for the enactment of
new legislations, rules and manuals for disciplinary proceedings. The wide
discretion given to the Disciplinary and Appointing Authorities makes them to be
discriminatory in approaches to employees who commit one and the same offences.
More often than not the lower level functionaries stand at the receiving end of
punishment. The whole system needs an overhauling or rehauling – speak many
employees in government services.
 CHAPTER – II
SUSPENSION: ITS IMPACT AND INJUSTICE
‘Suspension’ means ‘to punish by temporary exclusion from work’ – Says
Random House Directory’1. It means that a ‘suspension’ is a sort of punishment for
a temporary period.

An individual employed in government service cannot take up a part-time job or

enter into a business. This being the law, many of the government employees do
not have income other than their salary. The wives of most of the government
employees are housewives or are not income-makers. The result is that the
monthly income, when a government employee is placed under suspension, is
stopped and surely it results in several hardships and financial crisis. If this
happens at the beginning of an academic year or when someone at home is
seriously sick, the problem becomes multiplied. If the employee is accommodated
in a rented building, the problem becomes very grim. In short there are many
untold miseries to which employees become exposed when they are suspended
from service. This is what is meant when one says that suspension is a
punishment.

The law says that the suspension is not a punishment and it further clarifies
“although suspension is not a punishment, an order of suspension is not to be
lightly passed against the government servant. It results in grave civil
consequences to the officer”2. Penologists may subscribe to the view that
punishment means infliction of pain – physical, mental or both. A government
servant who enjoys some position and status in life, when placed under
suspension, suffers humiliation, loss of prestige, social stigma, financial strains,
mental torture and isolation. In some cases, people demand for the suspension of
officers and both the people who demand it and the authority which imposes it are
fully aware of the penal significance of suspensions.
TOP LEVEL GOVERNMENT SERVANTS

If the Government employees are classified into top-level, middle-level and low-
level functionaries, suspensions are often ordered against the last two and between
the last two, it is more frequently ordered against the lower level functionaries. A
government employee gets a fixed income and most of them live making a lot of
adjustments with the monthly take-home pay. House rent, education of children,
family management, purchase of newspapers, unavoidable journeys, social visits,
obligations, debts etc., need money. A suspension means a break down in the
entire economic planning and surely it may affect the family budget and sometimes
to frustrations or tensions in family life. Of course, subsistence allowance may be
given to the employees under suspension. The subsistence allowance is not given
promptly. Delay in giving the subsistence allowance in time causes added financial
crisis to the employees. Governments are aware of the delay and they have made
specific rules for the payment of subsistence allowance without causing delay.
Nevertheless, the fact remains that there takes place inordinate delay in the
payment of subsistence allowance to the suspended employees.

“What amount should be paid to the suspended will depend upon the statute or
rules made for the purpose. But, ‘the subsistence allowance’ fixed at 50% of salary
was later reduced to 25%. Suspension continued for a long period of five years due
to the pendency of criminal case. The amount paid to the employee should be
sufficient for bare subsistence in this world. The amount of subsistence allowance
payable to the government servant concerned should, therefore, be reviewed from
time to time where the proceedings drag on for a long time, even though there may
be no express rule insisting on such review 3.” The rule is that normally no
recoveries are effected from the subsistence allowance sanctioned. In some cases,
employees may get more amount by way of take-home salary. This should make
such employees happy, but in reality, they do not feel in that way. One reason for
this unhappiness seems to be the intensity of his mental tension which he suffers
during the period of suspension. Another reason is that the employee will be forced
to pay back the recoveries from his salary when he is reinstated in service. It
implies that the hangover of the miseries continues to operate in the employee for a
long time till he is relieved of the recoveries from his pay once he is reinstated in
service.
 Studies conducted on the suspended employees show that they are necessited
to spend more money under several counts. This may include expenditure involved
for consultation with lawyers, collection and preparation of documents, meeting
people who can exert influence on the inquiry officers, meeting and explaining
(informally) with departmental authorities etc. In fact, the suspended need more
money as they have more of expenditure during the period they are under
suspension.

REINSTATEMENT IN SERVICE

Every suspended employee, if he is interested to be reinstated in service, tries

his best through influence or otherwise to enter into the service back. To fight his
case, being inside the service, is found to be always easier than doing the same by
remaining outside. Exerting influence or making representations etc. call for
additional expenditure for a suspended employee so much so that the penal
significance of suspension is more than what is comprehended.

The courts are well aware of the penal significance of suspensions when they
say that “an order of suspension affects a government servant injuriously unless
the departmental enquiry is concluded within a reasonable time. The very
expression “subsistence allowance” has an undeniable penal significance”. 4 What is
the reasonable time? – No rule or statue speaks anything about it. The first
sentence in the Manual of Disciplinary Proceedings in a State reads: “The prompt
disposal of disciplinary proceedings in conformity with statutory rules and the
principles of natural justice is a sine qua non to any discipline in any department”.
After saying so, the Manual keeps silence and resultantly, the disciplinary
proceedings go on dragging and dragging to the extent of causing irreparable
damage to the employee against whom inquiry is instituted. In Bhupinder Singh V.
Union of India, the Supreme Court held: “Disciplinary proceedings cannot be kept
pending indefinitely causing injustice to the employee”. The employee suffers a lot
and in certain cases, the department promotion committee refuses to consider the
cases of employee merely because there may be some disciplinary proceedings
pending against individual officers. The injustice is sometimes perpetuated even to
employees who have been suspended from service. In the case of Manasarajan
Das, the Court observed: “Suspension continued for more than 8 years without
finalising the disciplinary proceedings. It was vexatious and inexpedient and had
the demoralising effect on a public officer” 6. The court therefore quashed the
disciplinary proceedings. What is the remedy if disciplinary proceedings continue
indefinitely causing serious damage to the employee? The law is silent about it.

Dragging the inquiry is again a method of inflicting penalty – say many

government servants who are victims of disciplinary proceedings. “Administrative
delay” is the often stated cliché as the cause of inordinate delay in the initiation
and completion of disciplinary proceedings. In some orders, there may be specific
instructions to complete the inquiry proceedings within a specified time but,
sometimes, the instructions are not complied with. The inquiry officers seem to
take an attitude of “unconcern” to such directions of the appointing
authorities/disciplinary authorities. The helpless employee then moves heaven and
earth to compel the inquiring authorities to complete the proceedings. In some
cases, the inquiry officers weigh the influence exerted and take a decision to
conduct the inquiry without further delay. If the influence exerted is not weighty,
the inquiring authorities are found to still drag on the inquiry proceedings.

Cases in which the employees are suspended, the actual inquiry is initiated in
some instances, only after reinstatement of the suspended employees. The
reinstatement, in some cases, takes place after a long delay. There are cases in
which no statutory review is conducted within six months and the result has been
continuation in the state of suspension.

SUSPENSION: THE LAW

“The appointing authority or any authority to which it is subordinate or any

other authority empowered by the Government in that behalf may at any time
place a government servant under suspension.

(a) Where a disciplinary proceedings against him is contemplated or is pending;

or

(b) Where a case against him in respect of any criminal offence is under
investigation or trial or

(c) Where final orders are pending in the disciplinary proceedings,

 If the appropriate authority considers that in the then prevailing circumstances
it is necessary, in public interest, that the Government servant should be
suspended from service”.

WIDE DISCRETION AND DISCRIMINATION

The law gives wide – very wide – discretion to the appointing authority and
other authorities (as per the law) to suspend a government servant where a
disciplinary proceedings against him is contemplated or in pending. This means
that anybody can be suspended irrespective of the nature of the offence or the
gravity of the misconduct alleged to have been committed by the government
servant. A disciplinary proceedings can be initiated for awarding a minor penalty or
for imposing a major penalty. Instances are plenty to show that government
servants were suspended for very minor misconducts alleged against them.
Sometimes, personal prejudices, hostility, jealousy, vengeance etc. work as
powerful forces to suspend employees from services. So long as the appointing
authority is in a superior position, it can exercise or misuse its powers against its
fragile employees. Subjective satisfaction of the appointing authority may be
enough to suspend anybody when disciplinary proceedings is contemplated.

SUSPENSION AND REMAND

In criminal cases, the culprits may be remanded under police or judicial

custody. One of the intentions for remanding an accused is to see that he does not
damage the evidence during the period when the case is under investigation. If that
it is not required, bail will be granted to him. The Code of Criminal Procedure
clearly puts down bailable and non-bailable offences and the bail is a right.

The law which empowers the appointing authority/other authorities to suspend

the employees does not speak anything about the type of misconduct for which
suspension can be ordered. This shows that there is very wide discretion enjoyed
by the appointing authority/other authorities for suspending employees. There are
allegations that the discretion is sometimes misused to the extent of showing
discrimination when government servants are suspended. For one and the same
type of misconduct, an employee may be suspended and another may not be. This
depends highly upon factors which are operating within and outside the appointing
authority/other authorities. His outlooks, attitudes, personality, preferences,
personality disorders, affinities, ‘sms’ ‘ologies’ etc. exert influence upon his
decisions. Therefore, there is a view that there should be objective criteria or scales
by the help of which the discretion of the appointing authority/other authorities is
controlled so that he does not misuse his authority by suspending employees.

In police department, lower level functionaries are suspended without any

justifiable reasons – say the constables. In other departments, suspensions are
made when the authority knows it for certain that there may not be objections
from the unions/associations of employees. Usually very senior levels are not
suspended unless there is very strong pressures for the same. They are asked to
enter on long leave if situations are very bad against them. Just like what is said –
the beauty lies in the beholder’s eye – the suspension and the decision to suspend
employees is a matter fully determined by the authorities concerned. Their
subjective satisfaction – without any objective norms – which justifies them to
place an employee under suspension has become an issue of very serious
criticisms from the employees, press, media and civic-minded people in society.
Some suspensions emit foul smell to many and that is the reason why adverse
criticisms are heard. In one instance, intellectuals, writers, artists, journalists and
so on spoke loudly against suspension of some employees in a South Indian State.
At the same time, instances are there that politicians, people, papers and many in
all walks of life demand suspensions; but not listened to by the authorities. There
is a lot of discretion in this matter.

CRIMINAL CASES AND SUSPENSIONS

What is the rationale or justification to suspend an employee merely because a

criminal case against him is under investigation or trial. ‘Everybody is presumed to
be innocent until he is proved to be guilty – is a dictum is jurisprudence and why
should a government employee be denied of enjoying the privilege which is usually
given to accused persons in criminal cases? Criminologists may argue that
anybody can become an accused in criminal cases and the government employees
are no exception to this general rule. In connection with strikes by employees,
criminal cases are registered against some. As soon as the strike is over, many
cases are withdrawn and that is the end of many things.
 How long can an employee accused of a criminal offence be kept under
suspension? Investigation of a criminal case usually takes nearly one year and the
trial may take place still after a long delay. Guilt of the accused in a criminal trial
is decided by a court a law on the merit of the case. There are any number of
judicial decisions which categorically state that the issues decided by a court of law
can never be made a subject matter of enquiry/disciplinary proceedings. The
consistent views of the Delhi, Andhra Pradesh and Kerala High Courts are in
favour of this.

A criminal case comes into being when a F.I.R. is taken against an employee.
Nothing can be said about the involvement of the person during the period of
investigation. He is only a suspect. If more evidence comes against him, then he is
arrested and chargesheeted. Thus he becomes an accused in a criminal case. Until
he becomes atleast an accused in a criminal case, no one can say anything about
his involvement in the commission of crimes.

If at all he is made an accused in a criminal case, it does not mean much as he

can be acquitted by the court. If he is acquitted with honour, then there is no
justification in placing a person under suspension just because a F.I.R. is
registered against him. Even in cases, disciplinary proceedings is initiated, the
inquiry is kept pending till the disposal of the case.

The object of placing a government employee under suspension when a criminal

charge is under investigation or trial seems to be to facilitate easy assemblage of
evidence during investigation into the criminal charges made against the
delinquent employee. The argument does not stand to reason as one may fail to
understand how can the employee cause difficulties for the collection of evidence in
criminal cases. If he is bailed out, it means that there is no reason to keep him
under remand for the purpose of collecting evidence. If his incapacitation is
required, he cannot be released on bail. Once he is released on bail, there is no
justification to keep him still under suspension in the pretext of collecting evidence
in criminal cases. Even in murder cases and heinous crimes, bail is generally
granted within a period of ninety days. But, an employee may be kept under
suspension for longer periods – even for years together just because a criminal
charge is pending against him. This is unjustifiable and ununderstandable. The
intention behind suspending an employee or prolonging the suspension is at best
not guided by fairness and justness.

It is a well settled law that disciplinary proceedings and criminal trial can be
initiated simultaneously. In such cases, an employee who is alleged to have
committed the offence or shown misconduct is not entitled to drop departmental
enquiry against him. Nevertheless, if the commencement of the departmental
enquiry and criminal trial take place simultaneously, the disciplinary proceedings
should not be completed before the final decision of the criminal trial comes out. In
case he is convicted, the departmental proceedings comes to an end automatically
and punishment is imposed. In case of acquittal, the disciplinary authority, at its
discretion, can either drop the proceedings or to proceed further with the inquiry.
The disciplinary authority can decide on an issue which was not decided by the
criminal courts in such instances. If this is the legal position, there ceases to have
any meaning in suspending an employee just because a criminal case is under
investigation or trial against the government servant. Shockingly enough, there are
instances in which employees are suspended after the verdicts of acquittal have
come out.

CASE STUDY

A civilian employee in the police department was suspended after eight years
since the alleged incident took place. A judgement of acquittal came out about
three years ago in favour of the civilian officer. What prompted the authorities to
suspend the employee after eight years? The only reason was that the director
general of police was not in good terms with the employee. For this purpose, he
made use of his subordinate officers. A superintendent of police in the Indian
Police Service was given an assurance that he would be prompted as deputy
inspector general of police if he victimized the civilian officer who was working
under him. The superintendent of police created situations to harass the civilian
officer, but in vain. Realizing his inability to initiate disciplinary proceedings
against the civilian employee, he digged out a file which was buried about eight
years ago. The superintendent of police, the director general of police and the home
secretary joined together and forced the Government to place the civilian officer
under suspension at an abnormally belated time. Finally, the director general of
police could not see that the superintendent of police was promoted owing to the
change of the government and his retirement on superannuation. The
superintendent of police, being pricked by guilt feeling, later apologized to the
civilian officer. But the injury caused to the suspended officer was beyond repair.

PUBLIC INTEREST AND SUSPENSIONS

 What is public interest? This is not defined in law. This is a time when public
interest litigations are filed and entertained by courts. What is the interest for the
public to see that a government employee is suspended? The interest seems to be
sometimes politically motivated. The opposition in a democratic-set up always
wants the ruling government to see that government employees are suspended for
anything and everything and the motive often appears to be to cash the situation
for political motives and advantages. Police may be compelled to have recourse to
lathy charges in compelling situations and in many such occasions, the opposition
may clamour for the suspension of the government employees responsible for the
lathy-charge. More often than not, the suspension of the employees has a
demoralizing effect. The penal significance of suspensions are known to the people,
politicians and the administrators. In certain instances, the administrators see
that the employees are suspended from service for no apparently justifiable
reasons. There are instances that employees are suspended after six, seven or eight
years after the alleged commission of misconduct. In such situations the
administrators put the word “public interest” to justify their otherwise unjustifiable
act. Often, personal vengeance, hostility, oppressive attitude etc. may be the
underlying causes.

The suspended employees are at their wit’s end as they cannot convince their
relatives, family members, near and dear ones or people around about the real
causes – if it is hostility, vengeance etc. behind suspensions. People have a
suspicious attitude towards the suspended and they are inclined to look at them as
“suspended after all”.

REVIEW OF SUSPENSION ORDER

The rule says that if the proceedings taken against an employee has not been
completed within six months from the date of suspension that fact should be
reported to the Government. For this, a review of the suspension order should be
made. In Director General and Inspector General of Police V. Ratnagiri, it was held
that “an order of suspension will not come to an end if it is not reviewed within six
months. The suspension order will continue to operate till it is rescinded by an
appropriate authority”?

What can be done by a suspended employee if the administrative authority is

not prepared to review the suspension order? He can make petitions after petitions
and if they are not attended to by the disciplinary / appointing authority, he can
approach a court of law. Necessarily, it invites a lot of expenditure and therefore
the employees are found to be reluctant to move a court of law for the purpose. The
employees are given only subsistence allowance during the period of suspension
and in such difficult situations, to go to a court of law may not be feasible for
many. A minimum of Rs.5000/- will have to be spent to move the courts and it is
indeed painful for many employees. The administrative authority knows the
practical and financial handicaps which employees may face during the period of
suspension and precisely because of it, some of the so named authorities do not
review the suspension orders within six months after the date of suspension.
Criminologists may say that the administrators get a sort of sadistic pleasure in
seeing the employee continuing under suspension. In some cases, a review for the
name sake may be made by the disciplinary authority and may report that the
continued suspension is necessary for a meaningful inquiry to be conducted.

The law is well settled that the enquiry officers should report to the Government
the reasons for not reinstating the employees if they are not reinstated in service
after six months of their suspension. Many a time, the enquiry officers are not
found to be keen in reporting to the Government the position of suspended cases
and the result is that they continue to remain under suspension for a longer period
than what is necessary. Some enquiry officers do send reports and such reports
contain cliché-ridden expressions like-enquiry is in progress, continued
suspension necessary for justice, grave misconduct etc. In some instances, this is
done to further harass the employees by means of disciplinary enquiries.

RELEVANCY OF SUSPENSION

Is suspension relevant and necessary in disciplinary proceedings? There is a

view that the suspension should be resorted to the rarest of rare cases. As it is,
suspension is sometimes taken too lightly that in certain cases it is done even
without conducting a preliminary enquiry. “A preliminary enquiry” is to be held to
determine whether a prime facie case exists for a formal departmental enquiry to
be conducted. The allegation is that many a time, the preliminary enquiry is
conducted as an eye-wash and the officer conducting the preliminary enquiry
records the statements of two or three witnesses who give a testimony in the way
he wants. Generally, the appointing authority decides first whether or not a
particular officer should be placed under suspension. In order to justify his
decision to suspend an employee, he asks one of his favourties to conduct a
preliminary enquiry in such a way that he should prepare a report which can be
used as a justifiable ground for suspending the government servant. If this
allegation is true-even remotedly - , one may have to admit that miscarriage of
justice take place during disciplinary proceedings.

In government service, an appointing authority is a post or a designation.

People come and people go as appointing authority. Nobody seems to have any
vested interest to hold the post of appointing authority just to order departmental
enquiries and suspensions. At the same time, he may have likes and dislikes
towards their employees. If a liked individual is in trouble, he may not be
interested to suspend him. In such cases, preliminary enquiries will be conducted
by people who are instructed not to suggest any suspension for the employees.

SUSPENSION WITH RETROSPECTIVE EFFECTS

How cruel it is to order suspension with retrospective effects? There is no rule

which empowers the appointing authority to suspend employees with retrospective
effect. Nevertheless, it is done and it is deemed to be misuse of authority.

Once an employee is suspended, he is kept under suspension for very long

periods. This may mean that the authority does not seem to be concerned with the
problems and mental agonies suffered by the suspended. In Kesavan Nair V. State
of Kerala, as stated earlier, the court ruled out that an officer should not be kept
under suspension for a long time unnecessarily”. 11 Even employees who are to
retire shortly are kept under suspension and the courts have to intervene in such
cases to put an end to such diabolic designs of so named authorities. 12 In
Manasarajan Das V. State of Orissa, the court found that suspension continued for
more than eight years without finalising the disciplinary proceedings. The court in
that case held: “It is vexatious and inexpedient and had a demoralising effect on a
public servant.”13 The rule says that the time passes under suspension does not
count for pension unless otherwise ordered by the authority empowered to do so.

UNJUSTIFIABLE SUSPENSIONS

There are any number of suspension which are not justifiable. When the
inquiry is over, the employee may be fully exonerated and the period of suspension
will be treated as on duty for all purposes. The loss caused to the Government by
such unjustifiable suspensions is very heavy and unbelievable. Nevertheless, no
authority seems to be concerned with the damage caused to the public exchequer.
There is a school of thought which says that in such occasions of an employee
being exonerated, the loss caused to the public exchequer should be realized from
the authority responsible for suspending the employee. A person vested with
authority should not play with the fame, name and honour of an employee by such
unjustifiable of suspension., The fact that some employees are suspended even
without holding preliminary inquiries means that the whims and fancies of the
“authority” play their role in troubling the helpless employees. This cannot be
tolerated. The suspended employees are looked down upon by the people, near and
dear ones and the colleagues in the department. A lot of concocted stories will be
propagated and many people who hear these stories do not take any interest to
verify what they have heard. The press gives news about the suspensions and the
news contains only the official versions. The suspended employee often does not
get a chance to clarify his positions in the press so much so that he is handicapped
to make people know about his version of the circumstances which head to his
suspension. This being the case, he deserves compensation to recuperate the
damages caused by an unjustifiable suspension. Employees do not go to courts of
law for obtaining compensation, for, they are afraid of the authorities in case they
do so. The authorities are very powerful that they can further continue to harass
and victimize them in case they dare to move the courts of law for getting
compensation for the damages caused to them. The authorities know well the
handicaps to which employees are exposed and therefore, they are not found
bothered to place employees under suspension even on unjustifiable grounds.

CASE LAWS ON SUSPENSIONS

There are many case laws to show that employees are suspended without
justifiable reasons. The case laws also show that suspensions are ordered
discriminately to employees who are disfavoured by the authority in power.

1. The order of suspension does not put an end to service. 14 This is true
because suspension means that the employee is kept out of work so that he
does not interfere with the working of the department. The crucial question
is-can a transfer of the employees serve the purpose? If so, why should he be
placed under suspension? The allegation is that the power of the appointing
authority is often misused to the extent that certain employees are
suspended in some cases and in similar cases, certain other employees are
not suspended. There is very wide discretion used and misused so much so
that employees who are not influential and powerful become prey to this sort
of administrative desires and dislikes. So long as there exists no specific
 criterion – except those which are discriminatorily used or misused-on the
strength of which suspensions are ordered, the injustice is likely to be
perpetuated. The employees get only subsistence allowance during the period
of suspension and as such as order of unjustifiable suspensions put the
employees into irrepairable financial crisis and damages.

2. An order of suspension becomes effective only when it is communicated. This

means that the communication of the order of suspension is complete when
it is issued and sent out to the concerned employee. The actual receipt of the
order by the employee is not important; rather it is the communication of the
order that is essential.15 Employees have a misconception that the actual
receipt of the order is more essential than the communication of the order.
Hence, some employees try to hide themselves so that they do not receive the
order.

3. Suspension pending criminal prosecution ceases to exist when the criminal

proceedings itself is completed. In cases of suspension pending criminal
prosecution, the appointing authority is bound to reinstate the accused on
his acquittal by the court. 16 There are instances which show that employees
are not reinstated when the acquittal verdicts come out. More miserably,
some employees are suspended after the acquittal verdicts have come out. In
some inquiries, the same issues decided by the courts, are again attempted
to be decided in departmental inquiries and the employees are suspended.
What is the purpose here? The purpose here is found to be nothing but
personal vengeance, enimity or anger between the authority and the
employee.

4. An order of suspension does not automatically comes to an end when a

acquittal verdict is pronounced in a criminal case. For reinstatement to
service, another order is necessary.17

The Government Servants’ Classification, Control and Appeal Rules lays down
the provisions for suspending employees who are guilty of misconduct. The rules
are made with noble objectives, but in practice, it seems that the rule provides
ample opportunities and discretions for the authorities to misuse the power
invested on them. Suspending employees on unjustifiable grounds, keeping the
suspended employees for long period without justifiable reasons, not sanctioning
subsistence allowance in time so as to p0ut the suspended employees in financial
crisis and mental tensions, not conducting reviews on suspension within six
months after the date on which employees are placed under suspension,
conducting reviews with vindictiveness and sending reports for the continuance of
the suspension, refusing to initiate steps to reinstate the suspended employees in
time and asking them to go to the courts of law for the purpose of dragging the
disciplinary proceedings against suspended employees etc. are a few among the
various ways administrative injustice is seen perpetuated in government service.
“Administrative delay” is the usual excuse which the authorities bring to justify
their otherwise unpardonable acts against employees under suspension. There is
time limit fixed for keeping an employee under suspension, but one wonders
whether or not the time limit is respected by the authority. The authority feels that
they are the “authority” and as such they can do anything as they want. There are
organizations which clearly lay down the rule that a suspended employee is
entitled to get his full pay and allowances if he is not reinstructed within six
months. In such organizations, the inquiry proceedings cannot be dragged as it is
done in government services. In government service, the suspended employee gets
only subsistence allowance even when the period of suspension exceeds more than
six months. In a particular State in India, 50% of the pay is given for the first three
months and then it is reduced to 40% and the position continues so long as the
employees remains under suspension. The subsistence allowance is meant for the
subsistence of the employee and his family and it is reduced after three months
means that the law puts the employee into more miseries and crisis. People commit
suicide during their period under suspension and the rules do not seem to take
into account the harder sides of suspension. Justification in the pretext of
administrative delay cannot be brought as an explanation for causing agonies to
the employees under suspension. The subsistence allowance should be enhanced,
instead of being reduced after three months, in such a way that the employee
should be entitled to get the full pay and allowances after six months of his
suspension. The suspended employees are not allowed to work and make money
during the period of suspension and therefore, they have a right to get their full
pay and allowances especially when the period of suspension continues for long
periods. There are cases in which employees could not attend the enquiry owing to
the non-payment of the subsistence allowance. This position is indeed culpable
and needs to be tackled with by punishing the authority responsible for not
sanctioning the subsistence allowance in time.
 CHAPTER – III
DISCIPLINE, MISCONDUCT, CONDUCT
RULES AND DISCIPLINARY INJUSTICE
Discipline may mean proper behavior in accordance to rules and rules here
mean “Government Servants’ Conduct Rules”. Misconduct means violation of the
Conduct Rules and it can be either commission or omission. Commission means
positive action by which an employee violates the Conduct Rules and omission
means omitting to do a certain act which a government servant is required to do as
per the Rules. The Conduct Rules were written at a time when the misconducts
now shown by the employees were not known to the framers of the Rules. A good
number of misconducts thought to be so before one or two decades ago are not
considered to be so now. Yet, disciplinary proceedings are initiated. Authorities
consider the Rules to be more important than the justice administered by them.

CASE EXAMPLES

1. The Rule is that “no government servant shall raise any slogans or
participate in any disorderly demonstrations or otherwise engage himself in
any other disorderly conduct within office premises or while on duty”. But,
some employees during lunch break shout slogans within the office
premises. It is a misconduct, yet no action is taken.

2. The Rule is that “every government servant shall report to the government if
any members of his family is engaged in a trade or business or owns or
manages an insurance agency or commission agency”. The wife of
 government employee is an insurance agent, but the information is not given
to the government. This is an omission and therefore, it is a misconduct.
Rarely people inform these things to government. Their arguments that the
husbands need not necessarily know the business which their wives do in
these days. They do business independently and how can or why should the
husbands know about them The Rule might have come at a time when the
concepts of family and family life were different. In the contemporary times,
the husbands are not expected to know that business which the wives do.
The situation becomes worse when it is extended to the members of the
family of a government servant. The non-reporting of such activities can no
longer be considered as a violation of the Rules.

ANTIQUATED CONDUCT RULES

Government Servants’ Conduct Rules were written at a time when different

social and family set-ups were in existence. According to the Conduct Rules : “no
Government servant shall except with the previous sanction of the Government,
permit his son, daughter or dependent to accept employment with any private firm
with which he has official dealings, or with any other firm having official dealings
with the Government.

Provided that where the acceptance of the employment cannot wait the prior
permission of the Government or is otherwise considered urgent, the matter shall
be reported to the Government and the employment may be accepted provisionally
subject to the permission of the Government”.

What is the purpose or earthly utility of this Rule? It can at the most cause
hardship to a Government employee and may be invoked to initiate disciplinary
proceedings against some of the unfortunates in government service. The reasons
are –

1. A son, daughter or a dependent of a government servant does not require

anybody’s permission to accept a job in a private firm with which the
government servant has dealings. Many government servants may have
official dealings with many firms and the job-seeker is not expected to know
and study the dealings and their nature. A job for livelihood and for that
he/she cannot be insisted to get government sanction for accepting it just
because his/her father or mother happened to be a government employee.
 2. A father or mother may try his/her best to bring up his/her children in the
best way, may give the best education, may try to settle them in life or may
see that they get a job. They may exert influence where they can and if it
happens to be a firm with which he/she has official dealings, then it
becomes all the more easy. It is the management of the firm which decides
who should be appointed and if it decides to appoint somebody, then the
employer of his father/mother has or should not have a say in such
appointments. There is no meaning in saying that “the employment should
be accepted provisionally subject to the permission of the Government.”

3. When the Government understands that the government servant exerted

influence or undue pressure to see that his son/daughter/ dependent was
appointed in a private firm with which he had official dealings, disciplinary
action can be initiated against him. Instead, the rule says that the
government servant should not permit his son/daughter/dependent to
accept employment and that too at a time when the problem of
unemployment has become very acute seems to be too demanding and most
unrealistic. Once it so happened that the son of a section officer got an
employment in a firm and the son of a section officer got an employment in a
firm and the son of the government secretary did not. They had official
dealings with the firm which made the appointment. The government
secretary saw to it that his section officer’s son did not get the job. What an
injustice indeed!

4. Today, in the newly emerged or emerging family set-up, the parents have no
or little control over the children, particularly in the matter of employment.
The land based economic structure has given way to job based economic
structure. The family is no more the economic supporter today; rather it has
been taken up by factories and workshops. The head of the family is not the
bread-winner and in such a set up, the mother, the son, the daughter and
everybody earns a living by working and working in a place where they can
get a job. The restriction which the Rule imposes upon the government
servant does not take into account the realities in the changed social and
employment milieu of the Country.

REDICULOUS INDEED! REDICULOUS INFACT!

 The Rule is: “Government servants are forbidden to make habitual use of
animals which belong to others”. This might have been necessary at a time when
government servants depended upon bullock-carts or horses to go to their offices.
Sometimes, animals could be used for agricultural purposes. But, in his motorized
or mechanized world, the habitual use of animals by government servants is
something ununderstandable; yet the Rule is there to take disciplinary action
against a government employee for misconduct!

The Rule is that “Government servants are forbidden to travel free of charges in
any vehicle plying for hire”. Many-almost all-in certain departments get in to
vehicles. Not only that they do not purchase tickets, but also they are accused of
misbehaving with the employees in such transport vehicles. Nobody makes any
complaints against the government employees as they know that a complaint is
likely to bring evil effects on them. People tolerate and tolerate with pleasant faces
and pleasing manners. This may mean that the Rule has become unenforceable as
the violations of the Rule have become an accepted mode of behavior. If the lower
level functionaries travel in buses without purchasing tickets, the higher level
travel in cars without giving the taxi fares. So long as nobody makes complaints,
everything moves on well and smoothly.

Another Rule is: “Whenever a Government servant acquires or gets possession

of any antiquity, he shall immediately inform the fact to Government and get
sanction of Government for keeping the same in his possession”. Researches
conducted and enquiries made in the matter show that no disciplinary action has
been initiated against anyone in the Government service for violating the Rule. It is
a rule lying dormant in the book and the Rule has the utility only to teach the
same to government employees in a classroom when instructions to the Conduct
Rules are given.

UNREALISTIC CONCEPTIONS

There is a Rule which reads, “A Government servant who intends to transact

any purchase, sale or disposal by other means of movable or immovable property
exceeding in value one thousand rupees with any person residing, possessing
immovable property or carrying on business, within the local limits of the official
authority of such government servant shall declare his intention to Government”.
One thousand rupees is too meagre an amount in these days so much so that a
government employee who wants to purchase some cow-dung to manure the crops
needs to declare his intention to the Government. Purchasing of sixty or seventy
baskets of cow-dung may require more than one thousand rupees and therefore
nobody seems to be bothered about the Rule when he/she intends to manure the
crops annually.

The Rule is that the Government servants are prohibited to approach M.Ps.,
M.L.As, member of political parties and soon for the redressal of their grievances.
In a democracy, the role played by the political parties cannot be neglected or
overlooked. Service associations and unions are sponsored by political parties and
there has come into being a situation that politicians and political parties interfere
themselves in all functions of the Government including disciplinary proceedings.
Whenever the employees come to know that they cannot get justice without
political interference, they approach the politicians to get their grievances
redressed. Instances have been reported that Government employees who were
suspended from service were not reinstated even after long delays. Political
interference in such instances might help them a lot to move the administrative
machinery. When politicians interfere in such cases, the administrative machinery
moves with accelerated momentum and no administrator, as the allegation goes, is
found to be courageous enough to initiate action against anybody in such
instances. This attitude of the administrative machinery coupled with the
inordinate delay it exhibits in the redressal of grievances of employees create
compelling situations to have recourse to political patronage in disciplinary
proceedings. There has come a situation that politicians and bureaucrats work
together and the Vohra Commission speaks a lot about the ill-effects of such
unholy contacts.

UNENFORCEABLE RULES

Many of the conduct rules are unenforceable. The Rule is: “Failure to perform
his/her academic duties such as coming to the class without preparation to
conduct lecture classes, practical classes, assessment and guidance” etc.
constitutes improper conduct on the part of the teaching staff of government
colleges. How to enforce this rule is not known. What about the application of this
rule to teachers in government schools? How to decide that someone has come to
deliver a lecture without preparation? All these may be made as rules, but from the
practical point of view they are unenforceable or cannot be enforced. An attempt to
enforce such rules will create undesirable situations in academic circles.
 In a police training institution, once the head of the college instructed a civilian
professor to prepare teaching notes and asked him to submit the same to a deputy
superintendent of police for evaluation. The professor was a subject expert, a
doctorate degree holder, an author of many scientific books of excellence and a
recognised authority in his field of specialization. The professor felt humiliated and
approached higher authorities to interfere in the matter. The higher authority felt
that the order of the unit head to ask a subject expert to submit his teaching notes
to a deputy superintendent of police who was just a graduate in arts was nothing
but intellectual humiliation and academic contempt. On further analysis, it was
brought out that the intention of the unit head was to get a report from the deputy
superintendent of police showing that the teaching notes were of inferior quality
and thereupon he wanted to initiate disciplinary proceedings against that professor
of eminence.

CONDUCT RULES: A SOURCE OF HARASSMENT AND VICTIMIZATION

There is a school of thought which says that many of the conduct rules are not
intended to be enforced, but at the same time can be used for harassing and
victimizing the employees. A study conducted on the service rules applicable in a
particular State in India, it was brought out that many of the rules are
unenforceable, antiquated, unrealistic and were written at a time without
understanding the nature of misconduct shown by government employees. Since
the employees know that the rules are of no use, they keep silence and do not raise
their voice for enacting new conduct rules. “Let them go as they are” – is the
general attitude and approaches. Nevertheless, some authorities make use of the
rules to harass or victimize employees who work under them.

CASE EXAMPLES

1. Head of an office asked his subordinate officer to get a H.M.T. watch for his
daughter. The officer took four wrist watches and shown them to his boss.
He requested him to make a selection after consulting with his daughter.
Afterwards, he did not get any of them back. He had to pay from his pocket
the price of the wrist watches. He told this to some of his friends and the
news reached his boss. Immediately, the boss issued a memo to him and in
the memo, he asked him to come to office in time. He also wrote that he was
 orally instructed to come to office earlier and the repeated failure to abide by
the instructions given to him in writing would be seriously dealt with.
2. Unit head issued orders stopping small privileges enjoyed by a subordinate.
The news appeared in the media. On the basis of the news in the press, the
subordinate was asked to explain how the news was leaked out to the media.
The subordinate pleaded ignorance and disciplinary proceedings was
initiated against him. Finally, a warning was given and the order was
challenged in appeal.
3. A government vehicle was misused for personal purposes. The news
appeared in the press that a particular officer was misusing departmental
vehicles for unofficial purposes. Secret enquiries were made to know the
source from where the news was leaked out and a driver was identified.
Within a short period, the driver was suspended from service. People
employed in the office said openly that “that driver is suspended because he
told many that his boss had converted his office vehicle into a family
property”.
4. An officer used to come to his office during late hours of night. He claimed
that he was doing research. His remaining in his office caused serious
discomfort and inconvenience to lower level functionaries – namely the
watchmen, security and so on. They murmured among themselves and the
impact was suspension for them from service for misconduct.

Instances are reported that the office head himself writes anonymous letters
against his subordinates. Later, he himself makes orders to enquire about it and
entrusts the same to a favourite subordinate to make enquiries. Afterwards, on
getting a preliminary report as desired by him, the subordinates are suspended.
The lower level functionaries are always handicapped in the sense that they always
become easy victims of disciplinary proceedings. They can never conduct an
enquiry nor can they conclude an enquiry. The Conduct Rules says: “Every
Government servant shall at all times maintain absolute integrity and devotion to
duty”. Integrity in common parlance means honesty and absolute integrity means
absolute honesty. Psychologists may give a different meaning to integrity.
According to them, a person is said to have “integrity if he thinks in one way,
speaks in the same way and acts in the same manner”. One wonders whether or
not the psychologists’ definition can be applied in office works. Some officers –
senior level – interpret the word integrity to mean “not corrupt” and “corruption for
them has the meaning of “accepting bribery”. There are officers who think that
integrity means a lot of personality traits like honesty, sincerity, hard-work,
earnestness, impartiality, loyalty, submissiveness, obedience, and many more such
desirable qualities. It is virtually impossible to evaluate the integrity of a person
with objectiveness and accuracy. Many a time, subjective scales are employed to
decide upon the integrity of the subordinates. A senior officer had sex-weakness.
He used to exploit his position to express his sex urges. He used to consider
anybody speaking about his sex-weakness as his enemy and put him into
harassment.

MISCONDUCTS: WHAT ARE THEY?

Conducts and misconducts – both are human behavior. What is the criteria by
which conducts and misconducts are decided in government services. There are
some scales which can be used to evaluate human conducts and misconducts.
They are –

1. Subjective Scale: In this scale, an individual’s personal attitudes, views,

‘sms’ ‘ologies’, concepts and impressions are taken as the basis to decide
upon human conducts.

EXAMPLE

The Rule is that “a Government servant engaged in teaching is prohibited from

having pecuniary relations with any pupil or ex-pupil or with the staff or
establishment of the school or college in which he is employed”. A complaint is
received against a teacher stating that he makes money by tuition. The authority
who receives the complaint too sends his/her children for tuition. He/she knows
that teaching in schools/colleges is far away from being satisfactory and it is only
through tuition that he can bring up his/her children in studies in this competitive
academic world. He/she sends her children only to those teachers who are good in
the field. It so happens that the person against whom the complaint is received is
one whom he/she knows personally or one to whom he/she sends her children for
tuition, then the authority may not consider it to be a misconduct. The attitude
which the authority has towards private tuition is that it is a necessary evil in the
present system of education. He/she also knows that any action taken against the
tuition teachers is likely to put the future of the students in jeopardy. Here he
interprets the conduct to be a desirable one and therefore he/she may not initiate
any disciplinary proceedings against him. After the implementation of the U.G.C.
scales of pay, some administrators have started to feel that college teachers make
exorbitant amount by way of private tuition just like medical officers in government
services accumulate wealth by their private consultations and medical practices.
Infuriated by this feeling, the authority may initiate disciplinary action against
such college teachers/government doctors.

Though there are some allegations against college teachers engaged in private
tuition in the press, no serious action is taken by people in authority. If action is
taken, there may be public protest against such acts. Also, there may be the prick
of conscience for the authority which orders for the initiation of disciplinary action.
The impact is total intertia, inaction or no action in such situations.

Government employees see these approaches and at the same time, they notice
action being taken against another employee who canvasses insurance policy for
others. They find it difficult to compromise the inaction on one side and overaction
on the other side. Hence, they start to feel that the Conduct Rules are enforced
according to the whims and fancies of the people in authority and it is based on
pure subjectivism in administration. What is done to Paul in Paris is not what is
done to Peter in Paduva. Why this double standard?

2. Normative Scale: In this scale, the officer in authority has certain norms
and principles in life. He comes early to office and that is his principle. He
wants everyone working under him to come in time to office. He initiates
action against anyone who comes late to office.

Being the head of office, a car with a driver is provided to him. He does not
depend upon the public transport system and therefore, he cannot think of the
difficulties which other people in his office undergo just to come to the office.
Anyway, he has made punctuality as a norm in life and therefore is very strict on
it. Nevertheless, there are officers who are not punctual and yet, they insist
punctuality among the staff. This causes unnecessary murmuring among the staff.
An officer who shows misconduct has no right to demand proper conduct from his
staff.

All said and done, discipline has to be maintained in administration. It being

so, the authorities have to take action against the staff working under them – of
course, sometimes with prick of conscience. One of the reasons for the decline of
discipline in government offices is said to be the development of a work-culture
wherein the lower and middle level functionaries have no model to follow. This
creates a pathetic situation in which both the authorities and the employees who
work under them become confused as to what to do and how to go about it.

There are a number of norms enacted and enforced for the smooth
administration of office-functions. Most unfortunately, the top level administration
is not convinced about the need and utility of such norms. Some of them have
contempt for the norms – especially the norms and rules as rules as they are seen
in an antiquated Government servants’ Conduct Rules. They violate them and
simultaneously, they want to enforce them. More often than not they take refuge
into the execution of those rules just by initiating disciplinary action against the
subordinates. The subordinates resent against such dishonest administration of
disciplinary justice and they say that the administrators do not have the moral
rights to enforce such conduct norms when they themselves fail to follow them in
their life. The dearth of models among the top level administration is a curse in
India culture.

These so called administrators who fail to be the models for their subordinates,
sometimes, initiate even disciplinary actions without observing legal norms,
principles of natural justice and moral courtesy. There are instances to show that
officers are suspended without conducting even preliminary enquiries. This shows
further the callous indifference and culpable negligence in the conduct of
enquiries. Dereliction of duty becomes a subject matter of enquiries in disciplinary
proceedings and even in such enquiries action are initiated and employees are
suspended without conducting preliminary enquiries. “Violations of conduct rules
are dealt with by violating rules” – this can never be a norm. In such instances, the
authorities cease to have any moral or legal rights to hold inquiries and delayed to
such an extent that ultimately they will be closed by saying “charges not proved”.
This is bad in law and such a norm cannot be a norm; yet it happens in practical
disciplinary proceedings. Nobody including the administration seems to be
bothered about the victimological impact in such unjust procedures.

Everybody working in a department is known to one another and the allegation

is that the subordinate authority makes use of the chance to initiate departmental
proceedings against somebody who is not favoured by it. The blue-eyed sons’ of the
subordinate authority somehow manages to escape the proceedings. Further,
allegation is that the subordinate authority uses its wider discretion to favour the
ones and disfavour those who do not dance according to the tunes of the authority
empowered to set the proceedings into motion. This attitude becomes a topic of
wide discussion among the government employees. So long as this atmosphere
prevails in a department, the sincerity of conducting disciplinary proceedings turns
out to be, at best, suspicious. People speak out that the principle objective in many
disciplinary proceedings is, perhaps, harassment, humiliation, victimization and
demoralization of the employees who are disfavoured by the authority in power.
The norms and principles which are considered sacrosanct are not found enforced
in practical administration.

STATISTICAL SCALE

According to this scale, the majority is always right in majority of situation. In

other words, if majority of people show a particular behavior, it is considered to be
the normal human conduct. Anyone who goes against this will be considered to be
exhibiting misconduct.

The authority in power has formed views and opinions about how the
subordinates should behave to it. Any violation to the set pattern of conduct is
resented against. The “yes Sir, no Sir” or “Yes Madam, No Madam” approach by
subordinates is usually accepted as a desirable conduct. The subordinates speak
about how they should behave as under –

“Wish the authority in power in a submissive way. More submissively say ‘Sir
sir,’ ‘no sir’, ‘yes madam’, ‘no madam’.

Forget about what the authority told you to do and also what you have told in
turn.

Execute the decision in the way you want it to be executed.

Explain in polite words why you behaved the way you did and the
circumstances which compelled you to behave the way you did”.

This is what some people do. They are people who become neither favoured nor
disfavoured. On the other hand, a good many of the employees submissively
receive the orders and try to execute them exactly in the way they are asked to do.
They become favoured individuals and blue-eyeed one. Usually they do not become
victims of disciplinary proceedings. There are yet a few people who do things in the
way they want even ignoring the instructions issued to them. They may have
justifications, rationalizations and explanations which may not be accepted by the
authority. They become often the victims of disciplinary proceedings.

It is an accepted fact that majority of people need not be right always.

Corruption is a normal phenomenon in administration and if study reports are to
be relied upon, majority of employees are corrupt. Authorities at all levels know it
well, but seldom to they take action against them. The people have accepted
corruption as a culture and therefore they do not send complaints against corrupt
officials. The net results that corruption is not, as a rule, considered as a
misconduct if the officer who received bribery performs the work for which he is
humoured. “Corruption” within “corruption” is considered to be “corruption” today.
Any information relating to bribery/corruption is usually forwarded to the vigilance
department.

SOCIO-CULTURAL SCALE

Government service is a culture – a society within the society in a

State/Country. The conducts and misconducts of government employees are
determined by norms which are long accepted in their sub-culture/society.
Policemen are blamed for using third degree methods to people, some senior
officers are found to attend offices at their wishes, some subordinate employees
come regularly late to their offices and leave regularly before the scheduled time,
some employees take French leave, some read news papers/periodicals during
office hours, some vacate their seats to attend their private needs, delay files
purposefully with ulterior motive and surely they are violations of the conduct
rules. Do the authorities take action against all the defaulting employees? If not,
the conduct rules are not effectively implemented. In such a socio-cultural
environment, disciplinary proceedings are initiated against those who are moving
in disfavour with the disciplinary authority. This provides opportunities for the
authority to become discriminatory in their approaches. The way discrimination is
used and misused by the authority becomes a cause of wide criticism among the
members of the subculture.

A scrutiny of the disciplinary proceedings initiated against the employees may

reveal that there exists motives which are not justifiable for taking action against
the employees. When such actions are seen, it further causes interpersonal
rivalities and personality clashes between the superior and subordinate ranks.
 A superintendent of police used to come to his office by 5 p.m. every day and
sat there upto 2 a.m. He asked his subordinate constables to be in the office till he
left. This caused a lot of murmuring among the constables. The news reached him
and thereafter, he kept a close watch on the constables told to have murmured and
started initiating disciplinary proceedings against many of them. When too many
disciplinary proceedings were found to have been initiated, the higher authorities
interfered and stopped the action. Later, it was diagnosed that the said
superintendent of police was a psychopath. Thus, one may see that mental
disorders also can result in the initiation of disciplinary proceedings.

The socio-cultural scale says that the misconduct of an employee can be

decided by the help of the laws, rules, regulations, customs, traditions etc.
prevailing in a culture. The violation of the conduct rules, thus becomes a
misconduct. In order to fit the conduct of an employee within the parameters of the
conduct rules as violations, the authorities try to interpret behaviours as
misconducts. Allegations are there that some authorities interpret even good
behavior to be misconduct and they initiate disciplinary proceedings. At the end,
the delinquent employee may be exonerated and still, the authorities feel satisfied
as they could put their subordinate in to trouble and mental agony.

DIAGNOSTIC SCALE2

The conduct of an employee should be diagnosed to call it to be a misconduct.

Infact, the preliminary inquiries are conducted with this purpose in view. In so
doing, two aspects of an employee’s conduct are studied and they are –

1. Whether or not the conduct or misconduct gives happiness to the employee?

2. Whether or not the conduct or misconduct gives welfare to the office and to
the people at large?

Thus the conduct or misconduct has two dimensions and they are (1) individual
and (2) social. If the conduct gives only satisfaction to the employee and no
happiness to the society, it is considered to be a misconduct. Likewise, if the
conduct gives satisfaction only to the society and not to the individual, then also it
becomes a misconduct. For examples, an employee comes very late to the office, it
gives pleasure only to the employee and not to others. It is a misconduct. Likewise,
an employee is forced to sit very late in office to do the work. It gives satisfaction
only to the society and not to the employee who sits late to work. The action of the
superior officer is a misconduct. Hence, in deciding the misconduct, both
individual and social dimensions should be taken into account. In the above
example, the act of the superintendent of police gave satisfaction to the
superintendent only and not to the employees and therefore his conduct was a
misconduct.

MISCONDUCT, DISCIPLINARY ACTION AND COURTS OF LAW

Misconduct is something which would be decided by the disciplinary authority.

The courts do not interfere in such things. Discipline is necessary for the smooth
functioning of an office or department. Here the disciplinary authority has a duty
to examine and evaluate the conduct and misconduct of the subordinate
employees. In so doing, they should be honest, just and objective.

The courts of law do not look into what or which irregularities or misconducts
were shown by an employee warranting disciplinary proceedings against him. If the
courts are going to interfere in such matters, then administration of an office or a
department may become difficult rather impossible. This being the case, the courts
see whether or not any procedural irregularities or violations of the principles of
natural justice have taken place in the process or progress of disciplinary inquiries.
If the courts find any such irregularities or violations, they quash the proceedings
stating that the inquiry is vitiated.

No doubt, there exists Master-Servant relationship in government office. The

Master is Master and the Servant is Servant. Some people are not happy with the
Master-Servant relationship and therefore, they call it is to be superior-subordinate
relationship. The superior or the master, whatever nomenclature one may give,
thinks that he is the superior or master as the case may be. He expects-rather
demands-servant-like behaviour from his subordinates. The subordinates know
pretty well that his superior/master is not the paying authority. His position is
weak so long as he too is paid by the people who pay to the subordinates. In a
democracy, nobody can become superior or master so long as he is not the paying
authority. A particular person occupies a particular post and assumes a particular
authority – disciplinary, appointing, controlling, inquiring etc. only for a temporary
period and the subordinate know it well that he is no authority at a future date.
Some politically influential subordinate can see that his disciplinary authority is
transferred. If a subordinate is adamant, he too can cause troubles to his
disciplinary authority in many ways. In government service, no authority can do
any harm to a subordinate without being supported by law. The subordinates can
approach the courts of law and set the proceedings quashed with strictures passed
on the “authorities”. The subordinates can mobilize their Service
Associations/Unions to agitate against the authority who troubles them. Unlike in
the private sector, the government employees, however small they may be, have
greater power over their “authorities” who have only temporary existence in certain
post.

Like the superiors evaluate the subordinates, the subordinate also evaluate the
superiors. Both have the same conduct rules and cultural norms. If a superior
initiates disciplinary proceedings against a subordinate, the subordinate too can
cause hardships to the superior. There is a saying: ‘When a lion and cat fight each
other, the cat may be killed and the lion may get injured-seriously or lightly.
Likewise, in government service, disciplinary proceedings is initiated, sometimes,
because f personality clashes, ego-problems, personal vindictiveness or hostility
and in all such cases, the cat may be killed and yet the lion may receive injury,
serious or minor as the case may be.

DISCIPLINARY INJUSTICE

There exist no service rules which clearly define the delinquencies or

misconducts. Every conduct is interpreted and in some instances some conducts
are misinterpreted. The authorities are not properly trained to apply the scales to
interpret human behaviour to be normal conduct or misconduct. The result is that
disciplinary proceedings may be initiated against employees and some of them do
not appear to be just, fair and honest for the larger interest of office discipline or
management of discipline among the employees.

Any employee-whatever may be his position or post in government service-is

nobody. He is not the employer and precisely because of it, he is not benefited by
initiating any disciplinary action against an employee. Any loss to government is no
loss to anybody and precisely because of this, some authorities close their eyes to
misconducts committed by their subordinate ranks’. Any violation of the conduct
may cause harm to the authorities and precisely because of it, some authorities do
not want to interfere in others’ area of work. Since the service associations are very
powerful, it is sometimes difficult for authorities to invoke disciplinary action
against their subordinates. It so happens sometimes that the misconducts of the
authorities come to light through the media if and when they try to cause problems
for the subordinates. Usually, therefore, disciplinary actions are initiated only
when there occur interpersonnel rivalries or interpersonal rupture among the
superiors and subordinates. In such cases, disciplinary actions are initiated, not to
satisfy the objectives of administrative justice but to satisfy the vindictiveness of
superiors.

No noteworthy studies have been conducted to learn the causes/motives of

disciplinary actions in government services. Nevertheless, it may be seen that in
many of the cases, the motives behind disciplinary enquiries are questionable.

CHAPTER – IV
INQUIRY PROCEEDINGS, MEMO OF
CHARGES AND INJUSTICE
Inquiry always implies asking many things about something-very specifically
with an objective to know more and more about that something. The ultimate aim
in such sort of inquires is to find out the truth. In disciplinary proceedings there
are two types of injuries-namely preliminary inquiry, and formal inquiry. The
formal inquiry can be for inflicting a minor penalty or for imposing a major penalty.

The preliminary inquiry is conducted to see whether or not prima facie

evidence exists to conduct a detailed inquiry in the matter. The Rule is: “an enquiry
is instituted generally on the basis of a petition or on the basis of other information
which might necessitate an enquiry. An enquiry for the imposition of a penalty
shall be conducted only under the orders of the disciplinary authority or the Head
of the Department or any other authority empowered by the Government in that
behalf. Any subordinate authority which considers it necessary that such an
enquiry should be conducted in respect of an allegation against any individual
under its administrative control shall report the fact immediately through the
proper channel to the disciplinary authority concerned and obtain orders. The
report shall contain all available details of the case. Any authority which moves the
disciplinary authority for orders to institute an enquiry shall conduct such
preliminary enquiries as may be necessary to ascertain whether prima facie
grounds exist for disciplinary action. In every case where a subordinate authority
conducts such a preliminary enquiry, and the enquiry is not completed within
seven days, a preliminary report shall be sent by the subordinate authority to the
disciplinary authority recording the available facts and the nature of the steps that
are being taken”.

The employees against whom a preliminary inquiry is conducted usually can

give a statement as follows: “I deny all allegations against me. I have nothing more
to say at this stage of the inquiry”. The employees know pretty well that any
information volunteered by them at that stage of the inquiry may be used against
them when a formal enquiry is conducted subsequently. There is no need to
advance any information to the inquiry officer at that stage of the inquiry as the
delinquent employees get more changes to give their statements or defence at
subsequent stages if that needs be.

It is the duty and sole responsibility of the officer conducting the preliminary
enquiry to establish a prime facie case against the enquired if he intends to cause
a formal enquiry to be conducted.

Some inquiry officers get irritated or become furious when they listen to the
employees giving statements in the way shown above. This they show because they
are ignorant of the rights of the employees to say so at that stage. In some
instances, the inquiry officers threaten the employees to give more details about
the issues enquired during a preliminary enquiry. This approach is undesirable
and to that extent objectionable. It is the responsibility of the officers making
preliminary enquiries to collect as much evidence as possible to establish a prima
facie case against the employee. Instances are reported wherein the enquiry officers
make false promises saying that they will save them in the enquiry if they admit
the allegations. Some ill-informed employees believe the promise and admit many
things as the enquiry office wants them to. Experience has proved that the
employees’ admission has put them in serious difficulties. In fairness, one must
accept the fact that the promise and procedure are unethical and unjust in every
sense.

According to the law, it is not even necessary to inform the delinquent employee
anything about the conduct of preliminary inquiry. Nevertheless, if the government
employee is informed of the preliminary inquiry, it is desirable to give him an
opportunity to cross-examine the witnesses in respect of statements made by
them. However, this is not mandatory. In Mathew Muthalali V. R.D.O. it has been
laid down that the Government servant need not be given an opportunity to cross-
examine witnesses during a preliminary enquiry.1 If the government servant is not
given an opportunity to cross-examine the witnesses, he should invariably be given
an opportunity to cross-examine witnesses when the formal enquiry is conducted.

The statements recorded in a preliminary enquiry should be got signed by the

persons making the statements. If they decline to do so, the fact should be
recorded and should be so certified by the inquiry officer.

FORMAL INQUIRY

Whenever the preliminary enquiry discloses prima facie grounds for initiating a
formal inquiry, the disciplinary authority or the appointing authority can institute
a formal inquiry. Even when it does not disclose any prima facie ground, every
preliminary enquiry makes the employee mentally down. The enquiry officer may
tell the details in the petition to many in the department so much so that people
ask many questions with an intention to put him/her down. The attitude of the
enquiry officer often seems to be prejudiced.

Ex nihilo nihil fit: is a proverb in Latin and it means “nothing comes out from
nothingness”. This being so, every enquiry officer is inclined to believe that there is
some truth in every petition and he tries to elicit the same from the employee or
otherwise. Instances there are in which some enquiry officers are not very keen in
their work and they do things just for the sake of doing them. But, many a time it
so happens that a preliminary enquiry is followed by a detailed enquiry or formal
enquiry.

Formal enquiry, as stated earlier, can be of two types – namely (1) to impose a
major penalty or (2) to inflict a minor penalty. In a formal enquiry, it is absolutely
necessary to observe the principles of natural justice. The following are some of the
principles of natural justice –

1. The delinquent has the right to adduce all relevant evidence to prove his
innocence.

2. All possible opportunities must be provided to the delinquent to prove his

innocence.
 3. The statements of the prosecution witnesses should be taken in the presence
of the accused.

4. The delinquent should be provided with the opportunities for cross-

examining the prosecution witnesses.

5. The delinquent has a right to cross-examine the witnesses who are not
cross-examined by him at the time of preliminary enquiry.

6. No material should be relied on against the accused government servant

without offering him an opportunity to give his explanation on the same.

7. All relevant documents which the accused government servant is entitled to

receive should invariably be given to him. Denial of the opportunity is a
denial of natural justice.

8. Standards of fairness and reasonableness as adopted and interpreted by civil

courts should be applicable in departmental proceedings. 2 It is a Domestic
Tribunal.

It is disheartening to see that some enquiry officers have little or no knowledge

about natural justice and its principles. They have formed an impression that they
should justify any disciplinary proceedings if it is initiated. “Give at least a scratch
if one cannot impose a penalty” – seems to be the attitude taken by them. They do
not usually exonerate an employee, rather may award atleast a “censure” as they
think that it is their duty to justify the authority which ordered the enquiry. They
have falsely formed opinions that their inability to punish an employee means their
inefficiency to conduct the enquiry in a proper way. “Punish the employee and let
him get his punishment cancelled from the appellate authority” – is also the
approach taken by some of the enquiry officers. Since the attitude or approach of
these officers is not fair or just, there arises a sort of hostility between the enquiry
officer and the enquired.

REASONABLE OPPORTUNITY
 Every reasonable opportunity should be afforded to the delinquent to present
his case. In Narayanan Nair V. State of Kerala 3, the law has been laid down i.e., the
reasonable opportunity means –

1. Opportunity to deny one’s guilt;

2. Opportunity to establish his innocence;

3. Opportunity to know the charges against him;

4. Opportunity to know the allegations on which the charges are based;

5. Opportunity to defend oneself;

6. Opportunity to cross-examine the witnesses produced against him;

7. Opportunity to produce defence witnesses and to examine them;

8. Opportunity to produce documents in favour of him;

9. Opportunity to demand documents which are in the custody of the enquiry

officer/which the enquiry officer can produce.

10. Opportunity to make representations as to why punishment should

not be inflicted on him.

The burden to prove that reasonable opportunity was given to the government
servant during the disciplinary proceedings is on the Government. 4 Studies
conducted on the capacity of the enquiry officers to appreciate the meaning,
content and implications of the legal phrase “burden of proof’, it was brought out
that most of them have no idea about it. The delinquent employees are also equally
ignorant of such legal terms so much so that in many cases, the enquiries are
conducted in a haphazard manner.

QUASI-JUDICIAL TRIAL

Many judgements from the courts of law categorically state that the disciplinary
enquiries are quasi judicial in nature. Enquiry officers exercising quasi-judicial
functions should exercise their duties in a quasi-judicial way. They should
invariably record reasons for their decisions. 5 some banks, boards, corporations
etc. appoint legally qualified personnel – may be lawyers or retired judicial officers
and so, on - to be the enquiry officers. But, in Government, section officers, under
secretaries, administrative officers, deputy directors and so on are appointed as
enquiry officers. Studies further show that some of them conduct disciplinary
enquiries with layman’s knowledge of law and folk-lore assumptions of human
nature. The Manual for Disciplinary Proceedings in a State lays down: “full weight
must be given to the common course of natural events, human conduct” etc. and
they are matters which need academic schooling and proper training of mind.
Entrusting of enquiries to officers on the basis of the rank, post or position they
occupy in the administrative hierarchy is to be disfavoured if one wants to ensure
proper administration of disciplinary justice.
MEMO OF CHARGES

The rule is: “any subordinate authority, which from the information received is
satisfied that there is a prime facie case for taking action against a government
servant under its administrative control that may result in the imposition of a
minor penalty, may frame definite charge or charges with a statement of
allegations on which the charges (s) are based. They should be sent to the
Disciplinary authority competent to impose the penalty. The disciplinary authority
shall consider the matter and if it agrees with the opinion of the subordinate
authority about the need for taking action and the nature of the penalty which may
result, direct the subordinate authority to communicate the charge(s) and
statement of allegations, as approved or modified by it, to the accused government
servant. Where the disciplinary authority is of opinion that the proceedings may
result in the imposition of a major penalty, it shall itself take action” for that type
of punishment.

CONTENTS OF THE CHARGE(S)

1. The charges should be brief, pointed and couched in clear terms without any
vagueness.

2. The date of occurrence of the incident and time, wherever applicable, should
always find a place in the charge.
 3. The charges should be logically framed. They should flow logically from the
nature of the allegations made.

4. A full and clear statement of the allegations on which each charge is based,
together with any other circumstances which it proposes to take into
consideration in passing the orders in the matter should be appended.

5. Two copies of the finalized charge-memo and statement of allegations will be

issued to the government servant against whom the enquiries conducted.
One copy will be got back with his dated acknowledgement and it should be
filed in the enquiry record.
6. Another copy of the charge-memo and statement of allegations will be
forwarded to the Head of the Department or the Head of the Office
concerned.

7. A list of documents relied upon in framing the charge and which are
available for perusal should be listed out at the end of the statement of
allegations.

8. The charge-memo should be signed by the appropriate disciplinary authority,

and it should not be signed as “for….”

The memo of charges will contain only the substance of the offence or offences
alleged specifying where relevant the date or dates, time and place or places
concerned. The charge memo will also require the accused government employee to
show cause why disciplinary action as contemplated by the Classification, Control
and Appeal Rules (also other rules applicable in special cases) should not be taken
against him. The accused government servant will be allowed 15 days time from
the date of receipt of the charge-memo to submit his written statement of defence.
It will also say that the matter will be proceeded with on presumption that the
accused employee has no explanation to offer if his written statement is not
submitted within the specified time-limit.

The accused government employee will be given an opportunity to be heard in

person. He can also puruse the relevant records mentioned in the statement of
allegations and take down extracts from them if so desired on any day prior to the
due date for submission of his written statement of defence. They day and date for
the same will be fixed in advance at the request of the accused government
servant. A specimen of the memo of charges for inflicting major penalty is given in
appendix 3 of this book.
 In the statement of allegations the facts containing the allegations against the
accused government employee will be given. Under the statement of allegations,
there will be a list of witnesses who may be examined during the inquiry. It will
also state that more witnesses will be examined if found necessary.

A specimen of the memo of charges for inflicting minor penalty is also given in
appendix 3 of this book. There will be no mention or reference to the examination
of any witnesses or to the opportunity for the perusal of any record if the action is
to impose only a minor penalty. Nevertheless, if the accused government employee
makes a request for the same, then the disciplinary or inquiring authority will have
to dispose of the request on the merit of the case. The decision should be
communicated to the accused government employee.

REQUISITES FOR AN ENQUIRY TO IMPOSE MINOR PENALTIES

The Manual for Disciplinary Proceedings lays down:

a) “Where a statement recorded from any witness is relied upon in support of a

charge, substance of such statement and the name of the witness should
also be communicated to the accused government servant as part of the
statement of allegation even if only a minor penalty is proposed to be
imposed.

b) If the accused government servant requests for an opportunity to cross-

examine any such witness, a formal enquiry according to the procedure
prescribed shall be conducted even where only a minor penalty is likely to be
imposed.

c) Where the evidence against the accused government servant vests

substantially on the oral testimony and the accused government servant
denies the charge, the normal procedure should be to conduct a formal
enquiry irrespective of the nature of the penalty likely to be imposed.

d) As regards supply of records to the delinquent, all that is required is that he

should have access to the statement of witnesses for enabling him to cross-
examine effectively if he so desires. This can be achieved by either (1) the
delinquent being given copies of the connected records or (2) he being
allowed to peruse the records and take extracts”.
FRAMING OF CHARGES: JUST AN OFFICE PROCEDURE

The allegation is that the charges are framed and the statement of allegations
prepared by the office staff who have no knowledge in law or no special training in
the works. As a result, more often than not, the charges and statement of
allegations do not satisfy the requirements of law. The Inquiry Officer too is, often
so ignorant about the finer points in law and legal requirements so much so that
he accepts the memo of charges/statement of allegations in the way they are
drawn up or with some slight modifications here and there. The disciplinary
authorities too do not show keen interest in the matter and consequently the
memo of charges and the statement of allegations often become the same prepared
by the office staff who are not well qualified in the work. The court of law, time and
again, pointed out the defects in the framing of charges and they show how
deplorable is the state of affairs:

1. The charge-sheet did not contain particulars with regard to the date and
time of the alleged incident. Hence, the court declared that the decision to
punish the employee on such charge to be illegal.6

2. The copies of the statement of witnesses recorded during the preliminary

enquiry were not furnished to the delinquent. These prejudiced the employee
in the matter of his defence.7

3. The charge was vague and indefinite. This was a denial of reasonable
opportunity to the accused employee to defend himself during the inquiry. 8

4. Chargesheet was issued on the basis of the findings in the investigation

made by the vigilance department. The charge-sheet clearly indicated that
the petitioner was guilty of the alleged misconduct. The charge-sheet issued
by the Disciplinary authority with a closed mind was unsustainable. 9

5. Failure to supply statement of allegations and the supply of vague and

indefinite charges were denial of reasonable opportunity.10

The defects in framing the charge is a serious matter showing the inadequacy of
the enquiry proceedings. The charge is given to the accused officer to make his
statement of defence. And if the charge itself is vague and of questionable nature,
the accused employee will be put into considerable disadvantage to prepare his
defence.

INITIAL STATEMENT OF DEFENCE

Whatever may be the charge(s), the delinquent employee has a right here to
make a statement as follows “I deny all the allegations stated in the memo of
charges and the statement of allegations. I will be able to prove my innocence
during the course of the conduct of the enquiry. My defence, if any, will be
submitted later, if that needs be”. The accused employee need not say anything
more here as he will get further chances to submit his statement of defence at a
later stage of the enquiry. It is better to give his statement at a later stage when he
knows fully well the evidence against him and that will be known to him during the
course and conduct of the enquiry. He needs to file his statement of defence only
for those pieces of evidence against him. Volunteering any statement admitting the
allegation will prove to be detrimental to his interest. The rule is: “The government
servant’s written statement of defence when received will be examined carefully by
the authority which issued the charge(s) to see whether all the points have been
duly met and whether there is necessity to conduct an oral enquiry, and/or give a
personal hearing to the accused government servant. An enquiry will be necessary
only in respect of any charge which is not admitted by the government servant
concerned. Charges which are admitted will be taken as proved and further action
will proceed on that basis”.

Usually, the enquiry officers like to continue with the enquiry as they are not
generally courageous enough to discontinue the enquiry at that stage of the
proceedings. If the enquiry officers want to discontinue the enquiry at that stage of
the proceedings, they have to address the higher authority which ordered the
enquiry. As a rule, nobody takes up the botheration and therefore they wish to
proceed with the enquiry and file and final enquiry report after the enquiry been
completed.

Of course, the accused government employee can request for a personal hearing
and some certainly do so. Again, what good will such a personal hearing may
provide is a matter to be seen in every enquiry. Studies conducted on the impact of
such personal hearing show that there is no much use by such personal hearings.
Therefore, it is advisable to submit a written statement of defence as shown above
and then keep silence. Nevertheless, if the inquiry officer has some good-will
towards the accused government servant, then he may make use of his personal
relations to appraise his innocence. However, no admission of his guilt should to
made during the personal hearing as one cannot confidently ascertain the
goodness of the enquiry officer at that stage. It may be wiser to think that the
inquiry officer is there to administer disciplinary justice and not to give a
favourable decision basing on the good relations which the accused has with the
inquiry officer.

FAILURE TO GIVE THE INITIAL STATEMENT OF DEFENCE

The rule is: “If the Government Servant fails to submit the written statement
within the stipulated period, no reminder need be sent to him, and the matter will
be proceeded with further. Should he request for extension of time, the inquiring
authority may grant the same if the reasons stated are considered acceptable. In
any evident, specific replies shall be given to the government servant to all points
that he may raise in the course of the enquiry. An acknowledged copy of every such
reply will be filed with the enquiry record, and where this is not done, the reason
for not doing so shall be recorded”.

The accused government servant can request for the extension of time and the
reasons can be for consulting with a lawyer of for any such valid grounds.

Although one may not make any statement of defence at this time, except that
he will deny all the allegations in the charge, he should never forget to see all the
documents that are brought against him. He should make a special request to
have an access to all documents cited under the statement of allegations. He
should take possession of all of them either by having the photocopies or by writing
down the extracts.

The rule is: The government servant is entitled to have access to the evidence
which is proposed to be taken into account in support of the charge(s) and
allegations against him. These will consist of –

a) the complaint, if any, on the basis of which the investigation or enquiry was
originally initiated in the case
 b) statements of witnesses proposed to be examined in the enquiry in support
of the allegation, and which were recorded in any preliminary investigation
or enquiry

c) documentary evidence which is proposed to be adduced in support of the

allegation”.

Access to a record even if otherwise relevant may be refused if the appropriate

authority considers its disclosure against the public interest. The officer under
enquiry can request for other records at any stage of the proceedings. However, at
this stage, he can puruse only those records mentioned under the statement of
allegations.

SUPPLY OF RECORDS: CASE LAWS

1. Where the report of preliminary enquiry was considered by the Enquiry

Officer, then non-furnishing of the copy of the report to the delinquent
amounted to denial of reasonable opportunity. 11

2. Refusal to supply to the employee copies of the statements of witnesses

examined at the stage of preliminary enquiry and copies of the documents
relied on by the disciplinary authority in order to establish charges violated
the principles of natural justice.12

3. Refusal to supply copies of documents and the complaint which formed the
basis of the charge without payment of fees was denial of natural justice. 13

4. The non-furnishing of the copy of the enquiry report on the basis of which
the Government takes action is a serious infirmity.14

5. The dispositions of witnesses or the copies thereof were not given to the
delinquent officer. This is violative of the principles of natural justice. 15

6. If copies of relevant and material documents – this includes statement of

witnesses recorded in the preliminary enquiry or during investigation – are
not given to the officer under enquiry, if such documents are relied in
holding the charges framed against the delinquent, the enquiry is then
vitiated.16
 The documents requested should have bearing on the charges. Or, they should
have been relied by the enquiry officer to support the charges. Or such documents
were found necessary for cross-examining the witnesses. If they do not belong to
anyone of the above categories, then the officer under enquiry cannot and should
not insist upon the supply of such documents.

The accused employee has not right to demand the copies of any records to
which he has the right of access, but he can take extracts from such records under
proper supervision. Again, if there is a conclusive recommendation as to anything
in a preliminary enquiry, it shall not be disclosed to the officer under enquiry.

CHAPTER – V
FORMAL INQUIRY, PROCEDURE
AND INJUSTICE
Once an inquiry has been initiated, it should have a natural death – this seems
to be the oft-resorted strategy in disciplinary proceedings. When does an enquiry
commence? This was a much debated point. Some people argue that the enquiry
commences when the order to hold an enquiry is passes; others say that it beings
only when the charge-memo is issued to the officer under enquiry. There is a third
category who holds the view that an enquiry commences only when the accused
appears before the enquiry officer for recording his statements to the statutory
questions just before taking prosecution evidence. That law is well settled now. An
enquiry is said to have been commenced when the memo of charges is issued to
the accused officer.

After the filing of the initial statement of defence, the disciplinary authority or
the appointing authority or other competent authority considers it. If he feels it
necessary to conduct the enquiry which may result in the imposition of a manor
penalty, he orders for the conduct of a formal enquiry. The formal enquiry so
ordered, shall be conducted by the appointing authority, disciplinary authority or
any officer of the department empowered by the Head of the Department or
appointing authority to conduct the enquiry. However, the inquiring authority
should be a person not directly connected with the facts in issue in the enquiry.
 The order regarding the conduct of the formal enquiry and the nomination, if
any, of the inquiring authority shall be communicated to the accused government
servant.

INQUIRY OFFICERS

There is no rule prescribing the qualifications for a person to become the

inquiry officer to conduct the formal enquiry which is of a quasi-judicial nature. As
it is, anybody can be appointed as the inquiry officer provided that he holds certain
posts or position in government services. Resultantly, officers with matriculation,
with graduation etc. become inquiry officers with little or no knowledge in law and
procedure. Although the rules of evidence and procedure of a civil court are not
strictly applicable in disciplinary proceedings, there should be the standards of
fairness and reasonableness maintained to reach conclusions. 1 One wonders as to
how many inquiry officers now doing the job have the required reasonableness and
fairness? They are not trained in law and legal procedure and most of them do not
have a legal mind. Of course, disciplinary proceedings are not strictly governed by
the rules of evidence as contained in the Indian Evidence Act 1872 2. Yet the inquiry
officers should know how to appreciate evidence in disciplinary proceedings. They
are the principles of natural justice and what are they? Most unfortunately, many
‘so called inquiry officers’ do not know them well and the result is miscarriage of
justice.

PROCEDURE FOR TRIAL

The Manual for Disciplinary Proceedings gives the procedure for formal enquiry
in the form of a trial in criminal cases.

1. There may be a presenting and a defending officer (if the officer defending the
accused can be called in that way) in every enquiry. The presenting-cum-
prosecuting officer presents the case, examines witnesses and cross-
examines defence witnesses, re-examines or re-cross examines witnesses
etc., as the case may be. In effect, he plays the role of a public prosecutor in
a criminal court. If the presenting-cum-prosecuting officer is a legal
practitioner, the accused employee is also entitled to get the services of a
lawyer. In such cases, if the enquiry officers happen to be individuals who
 are ignorant of law, legal proceedings, terminology etc., then the inquiry may
become a battle in which the inquiry officers sit there without understanding
much about what is going on in front of them. This indeed is ridiculous and
to that extent is a mockery of justice. It has been noticed that some inquiry
officers feel diffident infront of the legal luminaries and precisely because of
it they feel “less” in such situations. In many situations, the inquiry officers
prefer to have a layman in legal matters to be the presenting-cum-
prosecuting officer. In such instances, the accused officers have the right to
get the services of government employee to defend him in domestic enquiries.
The most unfortunate side of such enquiries is that officers who have little or
no knowledge in the principles of natural justice, standards of
reasonableness and fairness in inquiry proceedings, etc. conduct the
enquiries in a questionable manner. In many cases, the inquiries will be
vitiated. The courts of law, time and again, pronounce judgements showing
the defects in departmental inquiries. It shows that the time, money and
energy spent to conduct the inquiry become a waste for all and a loss to the
public exchequer. Many government employees do not go to the court with
petitions as they think that it is an expensive affair. It has been roughly
estimated that nearly 60% or more cases filed before the courts end in
getting favourable decisions to the accused government employees.

2. Inquiries are also conducted without appointing a presenting-cum-

prosecuting officer. This depends upon the special Manual for Disciplinary
Proceedings applicable in each State in India. In such situations, the enquiry
officer himself functions as the presenting officer. He questions the officer
under enquiry, prosecution witnesses, complainants and so on and tries to
elicit the facts. The rules is: “Except where a person is nominated by the
Disciplinary authority to present the cases in support of the charges before
the inquiring authority, it shall be the responsibility of the inquiring
authority, to question and bring out in evidence all points relevant to the
inquiry on which a prosecution witness may be able to testify, with reference
to the charge(s), statement of allegation and any new fact which may have
come to light during the course of the inquiry”.

The rule further lays down that the defence witnesses will be cross-examined, if
necessary, by the inquiring authority. No doubt, there is the legal foul play in such
procedures. Of course, there is nothing wrong in the inquiry officers putting
questions to witnesses in the absence of a presenting officer separately appointed
for the purpose. The courts view that the inquiry will not be vitiated by such a
procedure.3 At the same time, the inquiry officers cannot and should not cross-
examine defence witnesses. In Abdul Majeed V. State of Karnataka, the case-law is
very clear and specific. “The cross-examination of defence witnesses by the inquiry
officer was in plain violation of the principles of natural justice and consequently,
the inquiry proceedings was vitiated”. 4 Nevertheless, the Manual For Disciplinary
Proceedings in some States empowers the inquiry officer to cross-examine defence
witnesses. Certainly, the rule in the Manual For Disciplinary Proceedings is
violative of the settled principles of law. Nevertheless, inquiries are conducted
ignoring the case-law established by the courts. Cross-examination by the inquiry
officer takes away the quasi-judicial nature and character of disciplinary inquiries
and thus the delinquent is placed under serious disadvantage. The inquiry officer
should be impartial and objective in his conduct and approaches. If he is going to
cross-examine the defence witnesses, he cannot but be treated as biased against
that officer under enquiry.

INQUIRY OFFICER: A CASE STUDY

In a disciplinary inquiry, the inquiry officer was a deputy superintendent of

police and the delinquent was a police constable. There was no presenting officer
and therefore the policeman had to examine defence witnesses and cross-examine
prosecution witnesses. He was not even a matriculate and knew nothing much
about law, legal formalities, principles of natural justice, art of cross-examination
etc.

On the other hand, the deputy superintendent of police who was a law
graduate-who had good training in prosecution work-who had very excellent
practical experience in interrogating suspects, interviewing witnesses-who had
decades of long expertise in conducting prosecutions etc. was examining
prosecution witnesses and cross-examining defence witnesses.

It goes without saying that the constable was not a match to an experienced
police officer who was better than lawyers in prosecution work and in the art of
cross-examination. Naturally and necessarily, the balance in such a domestic
inquiry cannot be loaded equally and precisely by that reason alone, the police
constable was handicapped, Miscarriage of justice would be the result in such
domestic enquiries. An inquiry which may result in the imposition of very severe
penalties-including dismissal from service-should not be conducted so lightly and
without honouring the principles of natural justice and reasonable opportunity as
laid down in judicial decisions and court-rulings. However, quite recently, some
police officers do allow the appearance of legal practitioners to appear for
constables to defend them in disciplinary proceedings.

INQUIRY OFFICERS: SUBORDINATE TO DISCIPLINARY AUTHORITY

There exist allegations that some of the enquiry officers are the “yes men” of the
disciplinary authority/appointing authority in disciplinary enquiries. They try to
know the “wishes” of their superior officers and see that enquiries are conducted so
that they please their superiors more than administering justice. Any number of
examples can be seen from decided cases that the enquiry officers are not just in
their dealings and decision-makings. In one case, the Inspector General of Police in
his letter addressed to the subordinate officer asked to deal with the sub-inspector
of police and punish him for misconduct and report compliance. 5 The Inquiry
Officer understood the desire of his superior officer and accordingly awarded
punishment. Subsequently, the court quashed the punishment.

In the above case, there was a letter written by the superior officer to his
subordinate who was the enquiry officer. In many cases, there may not be such
formal or official communication showing the intention of the superior officers. Yet,
researches conducted in this area show that there exist informal communications
and verbal transmissions of superior officers’ intentions so much so that the
inquiry officer become susceptible to such administrative desires-either to punish
the accused or to exonerate him without awarding punishment.

Informal communications may take different forms. An instance had come to

notice and in that one Mr. Nathu Alex (real name concealed) was a superintendent
of prisons. He was a black-man who had a lot of inferiority complex. He had one
eye slightly more open than the other and for that reason alone he was looked
down upon by his colleagues. However, he became very close with the inspector
general of prisons who too had almost similar bodily appearance as he had. The
similarity in appearance brought them closer so much so that their associates
used to say “appearance affinity”, whenever they saw them together. Nathu used to
say that they had similar appearance because his mother was distantly related to
the inspector general of prisons.

Nathu had developed hostility with one of his subordinates. He could see that a
disciplinary enquiry was initiated against his subordinate and the inquiry officer
was the inspector general of prisons with whom he had the “appearance affinity”.
After the enquiry being ordered, Nathu was found busily engaged in framing the
memo of charges, preparing the statement of allegations, coaching the prosecution
witnesses, collecting prosecution evidence etc. for the inspector general of prisons.
At the end of the inquiry, punishment was awarded to the delinquent and it is
alleged that it was due to the informal influence exerted on the inspector general of
prisons by his favourite colleague-inferior in rank-in the department.

The informal contacts and communication do work in all departments in

government services. The result is miscarriage of justice. All, except the officer
under inquiry, are “authorities” in a departmental enquiry and it seems that they
can do things in the way they want. Allegations are there that some inquiry officers
treat the officers under inquiries worse than hard-core criminals in heinous
crimes. The authoritarian ego of the inquiry officer is expressed in such a way that
the delinquent employees at times apprehend that they may not get justice from
such enquiry officers. The cases in which requests for the change of inquiry officers
are found to be more on the increase in the recent past.

COMMENCEMENT OF EVIDENCE-TAKING

“When a formal enquiry is to be held, the date for it should be fixed and
intimated to the delinquent government servant in writing and his
acknowledgement obtained. The date should be intimated to the prosecution
witnesses also”-says the rule in the Manual For Disciplinary Proceedings. There are
some mandatory questions that should invariably be asked to the delinquent
officer when he appears for the formal inquiry. The questions are –

“You have received a copy of the charge (or) charges) and statement of
allegations in support of the charge (or charges) and submitted your written
explanation. Have you anything further to add before I proceed with this oral
inquiry”.

To this, the delinquent officer needs to say: “I have nothing more to add to what
I have given in my initial statement of defence”. Here too, he needs not or should
not volunteer to give anything as he is not fully aware of the evidence and its
nature against him.

The response to the questions by the officer under enquiry will be recorded in
writing in the oral enquiry file. The signature of the government employee and that
of the inquiring officer would be appended with the following certificate –
 “Recorded by me, read over to the dependent and acknowledged by him to be
correct”

It may be remembered that if the delinquent officer cannot understand the

language, then he has a right to get questions translated in a language which he
can understand. In that case, the certificate will be changed and will include “read
over and translated” as well.

It has been noticed that some enquiry officers allow his office staff to record the
question and answers. This is not allowed. The presence of more people in the
room of the inquiry officer is likely to cause mental embarrassment and
psychological tension to the delinquent officer. If the enquiry officer makes use of
the services of others for questioning, recording etc., it should be objected to. The
rule is that the enquiry officer should himself record everything during the conduct
of the enquiry.

If the delinquent officer needs the assistance of a legal practitioner/an employee

of the department, a requisition to that need should be made sufficiently in
advance, so that the authorities can either allow or reject the request before the
commencement of the formal enquiry. Some delinquent officers make the request
just before the commencement of the enquiry and it causes difficulties and
unnecessary adjournments. This should be avoided.

MARKING OF THE PROSECUTION DOCUMENTS

The enquiry officer now marks the prosecution documents and for that
p0urpose he shows them to the delinquent officer. Remember that marking a
document is different from proving a document. If the enquiry officer, out of his
ignorance, makes attempts to prove the documents by questioning the delinquent,
the procedure is against law and thus the inquiry will be vitiated.

RECORDING OF THE EVIDENCE FROM THE PROSECUTION WITNESSES

The evidence from the prosecution witnesses who are present shall be recorded
after examining them. The examination is done by the presenting-cum-prosecuting
officer if he is permitted; otherwise it is being done by the inquiry officer. During
the examination, no leading questions will be allowed. If it is done, it should be
objected to.

It has been seen that some inquiry officers tutor secretly the prosecution
witnesses as to how they should make statements when they are recorded. For this
purpose, they engage their office staff to do the job secretly. This procedure, if
resorted to, is illegal and most unwarranted. It is unethical and defeats the
purpose of disciplinary justice.

After the examination of a prosecution witness, the officer under enquiry or his
representative (if there is) has a right to cross-examine the witness. Leading
questions and all sorts of questions can be asked. If the question is found to be
irrelevant, unnecessary or unlawful etc, the enquiry officer may not allow such
questions. After the cross-examination, the witness can be re-examined on certain
points which require clarification and in all such instances, the accused
government servant (his representative) gets a right to recross-examine the
witness.

It is advisable to record in writing everything by the accused also separately so

that he can have the full text of what was asked, answered or transacted during
the enquiry proceedings. Every witness will be separately examined/cross-
examined and other witnesses cannot be present during the conduct of the
enquiry.

The officer under inquiry may raise objections to any questions which may be
put to the delinquent. He may also insist the inquiry officer to record his
objections. If the inquiry officer refuses to record his objections, he may sign the
recordings at the end with notings “under protest”. Immediately after the enquiry,
he may write a letter to the inquiry officer showing everything during the inquiry
and the point on which he raised his objection and the attitude the enquiry officer
took to his objections or the rulings he made on the point raised. The same letter
may be handed over to the inquiry officer and a receipt obtained.

“Will my questions or objections to the inquiry officer create unnecessary

thinking, feelings or emotions in the mind of the inquiry officer? - This feeling is
likely to occur in the mind of the delinquent at various stages of the inquiry
proceedings. Some weak-minded delinquents are inclined to think that his
objections, questions, protests etc. are likely to cause undesirable emotions in the
mind of the inquiry officer. Resultantly, they may withdraw from such situations
by avoiding questions and objections. This is unwise and therefore not
recommended. Be courageous enough to raise any number of objections and
questions, for, he may not get a better chance to do so at a later time. The inquiry
officer has no reason to become emotional or hostile to the delinquent. He is there
to administer disciplinary justice in an honest and objective way. If the delinquent
officer is not courageous, there may not be anyone more courageous then he to do
the job for him. Be bold and honest during the enquiry.

CROSS-EXAMINATION OF PROSECUTION WITNESSES

The rule is: “After the examination of each prosecution witness, the accused
government servant shall be required to state if he wishes to cross-examine the
witness and if he does not wish to do so that fact shall be recorded in the same
sheet wherein the evidence of the prosecution witness is recorded”.

“If he wishes to cross-examine the witness, he should as far as possible do so

immediately after the examination in chief is over”.

Although, this is the rule, it is not mandatory that the cross-examination

should be done immediately after the examination-in-chief. The delinquent may
need a number of documents for conducting the cross-examination in an effective
way. He should place a request for all documents which he may require for
conducting the cross-examination. He needs time to prepare for cross-examination
and therefore, he can request for adjournment of the cross-examination until all
the relevant documents are made available.

Usually, the inquiry officers permit it. It may be remembered that it will be to
the advantage of the delinquent officer to bring out as many documents as possible
by raising questions to the witness during the cross-examination. All the
documents which may be of some use should be brought out during the cross-
examination and they should be marked. If the documents are relevant, the inquiry
officer will see that they are made available to the delinquent officer.

The delinquent officer is free to ask the enquiry officer to provide to him access
to documents which he may require for cross-examining certain witnesses. If the
inquiry officer does not produce the documents requested on the ground that they
are irrelevant etc., then it is to the interest of the delinquent to prove that such
documents are relevant and necessary for the conduct of cross-examination. Still
the inquiry officer is not prepared to accept the relevancy, then see to it that they
are brought and shown as relevant during the actual conduct of the cross-
examination.

One should prepare in advance the questions for cross-examination. Framing of

questions “on the spot” is not advisable and may lead to difficulties. As a rule, as
most of the delinquent officers are not experts in framing questions for cross-
examination, it may be of cardinal importance to get them prepared either with the
help of a lawyer or with the help of an officer experienced in the matter. If the
cross-examination is conducted by a representative of the delinquent, then he
should be well informed of everything sufficiently in advance so that he performs
his duties in a satisfactory manner.

As shown above, there may be re-examination in which cases the delinquent

can re-cross-examine the witnesses.

If the enquiry is conducted on the basis of a complaint from a private person,

then the complainant will not be allowed to cross-examine the delinquent
government employee. Nevertheless, the complainant can suggest to the inquiry
officer the questions to be put to any witness. If he admits the same he may put
the questions to the witness. Otherwise, he may reject the question in which case
he may record the facts with reasons for omitting the same.

At the foot of the completed dispositions of each witness, a certificate “recorded

by me, read over (and translated) to the deponent and acknowledged by him to be
correct” – should be written. There should be the signatures of the inquiry officer,
the witness and the accused government servant also below the certificate. If there
is more than one page of the disposition, the pages other than the last should also
be initialed at the bottom by all the persons mentioned above – i.e., the inquiry
officer, the witness and the accused government servant.

EXAMINATION OF THE DEFENCE

The inquiry officer then will ask the accused government servant –

“You have heard the evidence against you. Have you any witness you wish to
have examined in your defence and any documents you wish to be produced”. The
answer to this question – yes or no –should be recorded. The government servant is
given reasonable time, if he so desires, to draw up and present the list of his
witnesses and documents. Usually, the period will be 15 days, but in some cases, if
may be less. 15 days’ time is considered to be a reasonable time and reducing the
period is not considered to be just and fair. The delinquent officer is at liberty to
ask all documents which he may feel relevant. Even, he may ask for irrelevant
documents also. This is a chance and therefore, try to make use of it. He may not
get a further-better chance for the same and therefore, never ignore the
opportunity.

The rule is: “The Inquiring Authority may, if necessary, question the
government servant to ascertain the nature of the evidence which each witness is
expected to adduce or to be obtained from each document”. The rule further says:
“The Inquiring Authority should try to secure the presence for the inquiry of the
witnesses cited by the accused government servant whose evidence is considered
by it as likely to be relevant and material to the case under enquiry. However
where any witness cited and considered material is a non-official, the responsibility
for producing him for examination will be that of the accused government servant
himself”.
The inquiry officer has no judicial powers. He cannot issue a summons or a
warrant for the appearance of the defence witness. This is the reason why the
accused government servant is made responsible for producing a witness who is a
non-official. Since the defence witnesses come to assist the accused in a
disciplinary proceedings, it is advisable to meet the witnesses in advance and get
their full and willing co-operation. The accused and his witnesses should reach to
a consensus as to the disposition of the evidence. Mock sessions of cross-
examination should also be conducted so that the witnesses find it easy to face the
examination and subsequent cross-examination.

There are two ways a defence witness can give testimony before the inquiry
officer. One way is to make a statement before the inquiry officer. At the end of it,
the accused government servant can further put questions to make clarifications.
The other method is to conduct the examination-in-chief by putting questions one
after the other and thereby try to elicit questions in a desired manner. During the
process, every defence document should be brought and should be marked as
defence document. The second method is better. It has two advantages.

1. The questions can be framed in advance and the answers to the questions
can be prepared well.
 2. Documents can be brought and marked as defence documents through the
witness.

Hence the second approach is advised and should be preferred.

The inquiry officer can secure the attendance of prosecution or defence

witnesses only if they are officials. The non-officials cannot be compelled to attend
a departmental inquiry. This being the case, some delinquent officers make
attempts to win over the prosecution witnesses. They may even purchase them.
Non appearance of a witness in a disciplinary proceedings means rejection of his
evidence. The rule is that the accused government employee should invariably get
an opportunity to cross-examine the prosecution witnesses in a departmental
inquiry. The denial of the same or the non-appearance of the witnesses cited by the
prosecution may prove to be to the advantage of the accused government employee.

The accused government employee is free to dispense with any of the defence
witnesses cited by him. In such cases, the fact will be recorded in the file and both
the inquiry officer and the accused government employee will sign in the file. “The
inquiry authority should try to secure the production of official documents
considered likely to be relevant and material” – says the rule. “The accused
government servant shall be responsible for the production of any document cited
by him and considered material”.

CROSS-EXAMINATION OF DEFENCE WITNESSES

Defence witnesses can be cross-examined by presenting-cum-prosecuting

officer (if he is appointed) Certain Manuals For Disciplinary Proceedings allow the
inquiry officers to do the same, but the same is declared to be unfair and against
the principles of natural justice by courts in India. On the basis of court-rulings,
the Manuals For Disciplinary Proceedings are not amended. It being so, some
inquiry officers continue to cross-examine defence witnesses. If cross-examination
is done by the inquiry officer, it should be objected to. The inquiry officer is there to
administer proper disciplinary justice and as such, he is not expected to play the
role of the presenting-cum-prosecuting officer in a departmental enquiry. Any
attempt on the part of the enquiry officer to cross-examine the defence witnesses
will surely and without doubt vitiate the enquiry. Of course, the inquiry officer may
raise some questions to clarify certain points during the examination in chief or
immediately afterwards. But, it should not have the colouring of cross-
examination.
EXAMINATION OF THE INQUIRY OFFICER

In exceptional cases, the accused government servant may ask for the
examination of the inquiring authority itself as a witness. In such cases, the
inquiring authority can question the accused government servant regarding the
nature and relevancy of what is expected to be adduced in evidence.

If the inquiry officer is satisfied that such evidence is relevant and material, he
should record in question and answer form, as part of the examination of defence
witnesses, what the government servant wishes to elicit through the examination of
the inquiring authority. “If the inquiring authority finds that the nature of the
information sought to be obtained from it is not relevant and material, the reasons
shall be recorded and the request of the government servant rejected” – says the
rule.

After talking down the defence evidence an opportunity will be given to the
accused government employee to present his final statement of defence. This is to
be prepared in full details and the next chapter is all about it.
 CHAPTER – VI
FINAL STATEMENT OF DEFENCE
So for the accused government employee, though was given opportunities to
offer his defence, has not made anything in the form of a “statement of defence
proper”. He has denied all allegations in the complaint, in the memo of charges
(statement of allegations attached thereto) and further stated that he would give
his statement of defence at a subsequent stage of the enquiry. Now, it is time to
furnish a detailed statement of defence and therefore, it is rightly called “final”
statement of defence. The accused government servant knows all the prosecution
evidence, statements of the prosecution witnesses, defence documents, statements
of defence witnesses etc. at this stage. He also knows the procedural irregularities,
violation of the principles of natural justice, denial of reasonable opportunity to
defend the case properly. He has with him a full and total of the report of the
examination of witnesses and cross-examination. He knows the relevancy and
admissibility of all documents and to a great extent the ignorance / incapacity of
the inquiry officer to conduct the enquiry in a fair, honest and an impartial
manner. He can therefore bring out the bias, prejudices and attitude of the enquiry
officer which he thinks has worked prejudicial to his interest. He can quote the
case laws from the Supreme Court/High Courts to prove his version. He is given 15
days’ time to prepare his final statement of defence and he can do so after due
consultation with legal experts or those who knows the laws/rules are quasi-
judicial in character and content and therefore the statement of defence should be
prepared accordingly.
PRELIMINARY ENQUIRY

In preliminary enquiries, the accused government employees do not volunteer

anything admitting the allegations. At the same time, the inquiry officers might
have taken the statements of some witnesses. Later in the formal enquiry,
opportunity is provided to the delinquent employee to cross-examine the witnesses
whose statements were recorded at the time of preliminary enquiry. The rule is: “It
shall not be necessary to record again the evidence of any witness whose signed
statement was recorded at the preliminary enquiry. It will be sufficient if the
statement so recorded is read out in the presence of government servant. However,
the government servant should invariably be given the opportunity for cross-
examining such witness irrespective of whether he had cross-examined the witness
or not at the preliminary enquiry.”

Certainly, the delinquent government employee is at a positive advantage here

as he has cross-examined the witnesses and therefore he can file his final
statement of defence with confidence. If preliminary enquiry was not conducted
that fact should be brought out in the final statement of defence. Instances are
there that government servants are placed under suspension even without holding
any preliminary enquiry as contemplated by the law.

Usually, preliminary enquiries are conducted by one officer and formal

enquiries are conducted by another officer. There are cases in which both
preliminary and formal enquiries are held by one and the same officer. This is not
a good procedure although the courts are not against such procedures.”The
conduct of a preliminary departmental enquiry does not disqualify that enquiry
officer from conducting the subsequent formal or oral enquiry”1

SUSPENSION AND AFTERWARDS

Of course, an order of suspension does not p0ut an end to the service of a

government employee2. This does not mean that a government employee can be
placed under suspension even without holding a preliminary enquiry. If an
employee was suspended even without conducting a preliminary enquiry, that fact
should be brought out in the final statement of defence.
 It may be remembered that the “real effect of the order of suspension is that
though the civil servant continues to be a member of the service he is not
permitted to work and is paid only subsistence allowance which is less than his
salary”3.

Generally an employee may be kept under suspension for a maximum period of

six months. To keep a suspended employee beyond six months, there must be
sufficient and valid reasons. The grounds should also be informed to the
Government. But, most unfortunately, suspensions are continued for longer
periods and surely it has great ‘penal’ significance. In the statement of defence, this
fact should be brought out to show that injustice has been done to the officer
under suspension.

In O.P. Gupta V. Union of India, the Supreme Court has clearly laid down that
“the very expression subsistence allowance has an undeniable penal significance.” 4
If the authority which suspended has not conducted a review within six months,
that fact should be highlighted in the statement of defence. Likewise, if the inquiry
officer has not reported the fact stating that the proceedings, taken against the
employee has not been completed within six months, they are serious defects in
the inquiry proceedings. “Beyond six months is an exception and not the general
rule.”

SUSPENSION BY AUTHORITY

The rule is that “The appointing authority or any authority to which it is

subordinate or any other authority empowered by the Government in that behalf
may at any time place a government servant under suspension”. This means that
no other authority can do so and therefore, if the suspension is ordered by any
other authority, that fact should be clearly specified in the statement of defence.
The delinquent officer may, at the time he prepares that statement, remember that
it is an important document that may be called for in a litigation if there is any
after the inquiry is completed. Therefore, he should bring out all points which may
be of benefit to him then and even later to a court of law. Departmental action is
initiated for misconduct and if misconduct is shown by the authority concerned,
then it cannot be pardoned. The Manual For Disciplinary Proceedings lays down:
“It is also imperative that the disciplinary proceedings against an officer placed
under suspension is finalized with the minimum possible delay. The tendency to
suspend public servants and then let the proceedings drift in a leisurely manner
must be strongly deprecated and checked by all authorities”.
FORMAL INQUIRY

Once the memo of charges is issued, the delinquent officer has a right to
peruse all the documents on which the prosecution relies its charges. It so
happens, sometimes, that the prosecution is able to produce only photocopies of
the documents. The delinquent officer is entitled to see the originals of all
documents as the photocopies are inadmissible as evidence. The delinquent can
and should insist for the production of original documents. Failure to show them is
a serious defect in an enquiry and that fact should be highlighted in the statement
of defence.

After getting the prosecution documents or taking down the extracts, the
delinquent officer is supposed to offer his statement of defence for the memo of
charges/statement of allegations. This is called the “initial statement of defence”
and it contains nothing but a total denial of all allegations mentioned in the memo
of charges/statement of allegations. In some instances, the memo and the
statement of allegations will be very vague and not clear. This fact should be shown
in the final statement of defence. For, “where the charges was vague and indefinite,
it cannot be said that the employee was given a proper and reasonable opportunity
to defend himself”5.

Instances there are in which the inquiry officer fails to supply statement of
allegations along with the memo of charges. If this is the case, that fact should be
brought out in the final statement of defence. The ruling is: “The whole object of
furnishing the statement of allegations is to give all the necessary particulars and
details which would satisfy the requirement of giving a reasonable opportunity to
put up defence. The failure to supply statement of allegations and the supply of
vague and indefinite charges would amount to denial of reasonable opportunity”. 6

There are instances in which the charge-sheet issued by the authority was
prepared with a closed mind. The charge-sheet could not show that the delinquent
was guilty of the alleged misconduct” 7. There should be openness and the
delinquent should be given the opportunity to prove his innocence. The denial of
giving opportunity to prove the innocence is not permitted in law. In one case, the
charge-sheet was issued on the basis of the findings in the investigation made by
the vigilance department. The chargesheet clearly indicated that the petitioner was
guilty of the alleged misconduct. The charge-sheet issued by the Disciplinary
Authority with a closed mind was held to be unsustainable by the court of law. 8
MANDATORY QUESTIONS JUST BEFORE THE COMMENCEMENT OF
THE INQUIRY

The mandatory questions relate to the

1. receipt of the memo of charges and statement of allegations

2. furnishing of the initial statement of defence etc.

It may be reiterated that an accused government employee may expect the

“worst” in a departmental enquiry and if he gets the “best”, it is always good for
him. Hence never fail to or refuse to give a statement of defence. The failure or
refusal to give a statement of defence will be deemed to be an admission of the
charges and the matter will be decided “ex parte” i.e., the employee has nothing to
offer as his defence. At the same time do not volunteer to give any information even
to defend one’s position in the enquiry. Volunteering to give more information at
that stage means that the employee is inviting troubles for him.

As the employees do not volunteer information in the initial statement of

defence, some inquiry officers ask incriminating questions when they mark
prosecution documents. The enquiry officers are expected to mark prosecution
documents at that time and if they make attempts to prove prosecution documents
through incriminating questions, that fact should be clearly specified in the final
statement of defence. It has come to notice that some enquiry officers, out of their
ignorance, ask many incriminating questions and elicit answers and they record
them in the inquiry file. If they have done so, it is to the advantage of the
delinquent employee. There is no law which permits the enquiry officers to ask any
incriminating questions at that stage of the enquiry. They cannot put the answers
to the incriminating questions either in the prosecution documents or in the
defence documents. The enquiry will be vitiated if such procedure is adopted by the
inquiring authority.

PROSECUTION WITNESSES AND TAKING OF THE EVIDENCE FROM

THEM

Examination-in-chief, cross-examination, re-examination and re-cross

examination etc. are important. The answers to the questions from the witnesses
are important and those answers which are favourable to the delinquent should be
brought into the statement of defence and must be discussed – even by
interpreting the meaning and content of the responses given by witnesses to the
questions. Contradictions, vagueness, suspicion causing utterances, statements
supporting the defence versions etc. should be exposed and interpreted. Oral
enquiry is one in which the oral evidence is taken and the witnesses are examined
and cross-examined. This being so, a lot of reliance is given to the oral testimony of
witnesses.

For examining witnesses / cross-examining them, documents can be requested

for. Nevertheless, “if a document has no bearing on the charges of if it is not relied
by the inquiry officer to support the charges, or if such document was not
necessary for the cross-examination of witnesses during the enquiry, the officer
cannot insist upon the supply of copies of such documents, as the absence of copy
of such document will not prejudice the delinquent” – observes the court of law in
Chandrama Tewari’s case. The rule is: “In deciding whether any record which a
government servant may request at any stage of the proceedings to be allowed to
peruse is relevant or not, the following general principles shall be followed subject
to the proviso that access to a record even if otherwise relevant, may be refused if
the appropriate authority considers its disclosure is against public interest”. If the
employee feels that he was not given records which he had requested and the
denial of his request had affected adversely his preparation of proper defence that
fact should be specifically written in the statement of defence. It is just impossible
for an employee to defend himself if he is not provided with records which are in
the custody of the inquiring authority.

INQUIRY OFFICER

“The Inquiry Officer shall be a person not directly concerned with the facts in
issue in the enquiry – this is a rule. The reality is that in many instances, the
inquiry officer happens to be a person who, though not directly concerned with the
facts in issue, is related to / concerned with issues / individuals / events involved
in the inquiry.

The delinquent government employee can make a request for the change of the
inquiry officer if he has no confidence in him or if he feels that he is biased or
prejudiced against him. In many such cases, enquiry officers who have some self-
respect may volunteer to withdraw from the conduct of the enquiry. There are
cases in which the inquiry officers become adamant in conducting the enquiry and
in such instances, the delinquent can either participate in the inquiry under
vehement protest or refuse, to co-operate with the inquiry. If he decides to
participate under protest, the same should be clearly specified in the final
statement of defence.

Every disciplinary inquiry is quasi-judicial in nature and content. Officers

working in a government department doing duties other than quasi-judicial jobs,
cannot become all on a sudden quasi-judicial. Of course, they have working
relationship with the government employee and therefore, they cannot but be
considerate to many aspects of his “working relationship”. Just like the inquiry
officer, the delinquent employee too have working relationship with many in the
organization. This being so, it is difficult for many in disciplinary proceedings to be
honest, objective and just – say government servants themselves. An officer of the
Indian Police Services was accused of outraging the modesty of a woman. Another
officer of the Indian Police Service was appointed as the inquiry officer. A third
officer of the Indian Police Service was the presenting-cum-prosecuting officer. A
fourth officer of the Indian Police Service was the defending officer. The allegation
was that there was the professional affinity of IPS fraternity creeping into for
destroying the quasi-judicial nature of the enquiry. In a particular instance, an
honest officer of the Indian Police Service had to request the delinquent (an I.P.S.
officer) to file a petition for the change of the inquiry officer as he found that the
pressure on him from the I.P.S. fraternity was so much that he could not but make
such a request to his delinquent brother in uniform service. It has also been found
that the enquiry officers becoming susceptible to influences, recommendations and
introductions. If that is true, then the delinquent should bring it out openly in the
final statement of defence. The allegation should be substantiated with concrete
proof.

MODIFICATION OF THE CHARGES

The authority, if it deems necessary, can add to, amend, alter or modify the
charges framed against the accused government employee. In that case, the
accused should be given a chance to submit his further written statement of
defence. In that case, the accused government servant gets a further chance to
inspect and take extracts from such official documents as he may specify for the
purpose of preparing his defence. Of course, the enquiring authority can refuse, for
reasons to be recorded in writing the permission for valid and legal grounds. If
opportunity is denied to file a further written statement, perusal to documents,
that fact should be expressed in the final statement of defence.
PART HEARD ENQUIRIES

The rule is: “If an inquiring authority after having heard and recorded the whole
or any part of the evidence in an enquiry ceases to function as inquiry authority for
conducting the enquiry, he may proceed with the enquiry from the stage left by his
predecessor and act on the evidence partly recorded by his predecessor and partly
recorded by him. However, if the succeeding inquiring authority is of the opinion
that a further or a fresh examination of any of the witnesses whose evidence has
already been recorded is necessary in the interest of justice, he may recall any of
the witnesses or all the witnesses for examination, cross-examination and re-
examination”. If the accused government employee was not given opportunity to
examine, cross-examine etc. then that fact should be brought out.

It so happens sometimes that the inquiring authority carries away the enquiry
file with him like a personal file even when he is transferred out. The motive behind
such procedure is suspicious. If the inquiry is entrusted to an authority by
designation, he cannot and should not continue to hold the enquiry when he is
transferred. On the other hand, if the appointment is by name, then he continues
to be the enquiring authority even when he is transferred out. Instances have been
reported that the authority appointed by designation refuses to leave the file in his
previous office and to entrust the same to his successor in office even when he is
transferred. This procedure is bad in law and is looked down upon in enquiry
proceedings.

DELAY IN COMPLETING ENQUIRIES

The rule is that all departmental enquiries should be completed without delay
and special care is to be taken to avoid any procrastination. Adjournment and
postponement of enquiry should be allowed only when absolutely necessary. As far
as possible the enquiry once taken up should be continued and completed at a
stretch.

It so happens sometimes that the inquiry officer wants to delay the proceedings
without justification. At the same time, he wants to give an impression that there is
no delay in conducting the enquiry.
The rule is that “When a formal enquiry is to be held, a date for it should be fixed
and intimated to the delinquent government servant in writing, and his
acknowledgement obtained. The date should be intimated to the prosecution
witnesses also”. If the inquiry officer wants to delay the proceedings, he may fix the
date and intimate the same to the delinquent officer. No notice will be sent to the
prosecution witness/es. As a result, there takes place delay and adjournments.
The accused government servant is harassed and victimized in such situations. In
certain other occasions, notice will be sent to prosecution witnesses as well. When
the accused employee and the prosecution witnesses appear for the enquiry, a
further communication will be issued stating that the “enquiry is postponed”. The
intention of the inquiring authority in such cases is at best suspicious and is
considered to be calculated attempts to victimize the accused government servant.
This fact, if it is found to be unjustifiable, should be specifically stated in the final
statement of defence to show that the intention of the inquiry officer was far away
from being just in administration of disciplinary justice.

DATE, TIME AND PLACE OF ENQUIRY

Manual For Disciplinary Proceedings lays down: “Whenever an enquiry is

adjourned on a particular day, the accused government servant, shall be informed
in writing about the date, time and place where it is to be resumed.” Some
inquiring officers purposefully omit the “time” and the intention is to see that the
accused government servant is troubled as he has to wait till he gets further
clarifications. There are cases in which the notice served to the accused does not
make any mention about the “place” where the inquiry is resumed. The intention
behind such notices of questionable nature is at least suspicious. In such
situations, many an accused government servant will not be courageous enough to
raise the validity of such notices as they are afraid that the “goodwill” if any, which
the inquiry officer has got in favour of him may be lost if he dares to question the
validity of notices issued by the inquiring authority.

EXPEDIATING ENQUIRIES AGAINST OFFICERS UNDER SUSPENSION

Fair justice and decency may demand that the disciplinary proceedings against
government employees who are under suspension should be expediated. But, in
practice, this is not seen unless the inquiry officer is taking special interest in the
matter. In Kesavan Nair’s case, as said elsewhere in this book, the court said: “An
officer should not be kept under suspension for a long period unnecessarily” 10
Again in Dr. Vellayani Arjunan’s case, the court ruled out: “suspension should not
be continued indefinitely, especially when the employee is due to retire shortly” 11.

It is most unfortunate to see that suspensions continue for several years. In

Mansarajan Das V. State of Orissa, to reiterate, the court observed: “suspension
continued for more than 8 years without finalising the disciplinary proceedings. It
was vexatious and inexpedient and had a demoralizing effect on a public officer”. 12

If the disciplinary proceedings is not expediated, the accused government

employees have no option other than approaching the administrative hierarchy and
request for intervention. They cannot move courts of law unless they exhaust all
the executive remedies. This being the case, the accused government servants
continue to suffer the delay which is sometimes, purposeful. In one instance, an
inspector general of police who was the enquiry officer did not even initiate the
proceedings for 10 months after the date on which the officer was placed under
suspension. On further probe, it was learnt that he had instructions from higher-
ups to see that the enquiry was delayed and the suspension consequently
prolonged. Most dishearteningly, the disciplinary proceedings was initiated only
after the suspension was revoked and the officer rejoined for duty. Again the
inspector general of police dragged the proceedings until he got direction from the
High Court that the enquiry should be completed within three months. Even then
he did not and rather approached the court for further extension of time.
Ultimately, it took about two years for the inquiry to be finalized. What is this? Is it
administration of disciplinary justice or miscarriage of administrative justice?
Again, to quote once more, in O.P. Gupta’s case, the court stated: An order of
suspension affects a government servant injuriously unless the departmental
enquiry is concluded within a reasonable time”13.

In the final statement of defence, invariably the inordinate delay in conducting

and concluding the disciplinary proceedings must be exposed.

PROCEDURE FOR PERSONAL HEARING

After the submission of the final statement of defence, the accused government
servant is given one more chance for “personal hearing”. The Manual For
Disciplinary Proceedings puts down: “The inquiring authority will then hear the
accused government servant and record his statement. The Government servant
will be entitled to put in only a verbal representation to the inquiring authority in
addition to what he has already stated in his written explanation. Ordinarily, there
will be no question of citing witnesses or documents when the accused government
servant is being heard in person, as that should have been done in the written
statement of defence submitted in reply to the charge-memo. If however, any
further witnesses or document is cited by the accused government servant at this
stage, the inquiring authority may consider its relevancy in regard to the charge,
and either arrange for his / its examination in the inquiry or refuse to do so for
reasons to be recorded”.

CASE-LAWS TO BE CITED

Any number of case-laws with reference number can be/should be cited to

substantiate the points brought out in the final statement of defence. Ordinarily,
the inquiry officers are ignorant about the case-laws laid down by courts of law. As
a rule, the inquiry officers are not law graduates and as such their capacity to
appreciate the finer points in the case laws is at best doubtful. In any case, the
quoting of case-laws will provide to them an opportunity to hold discussions with
legal experts and thereby to arrive at fair and just conclusions. Quoting of case-
laws will also make the accused servant’s position stronger and he can always
argue that the inquiring authority is fully made aware of the case-laws applicable
in the matter under inquiry.

A list of case-laws that may be of use for the accused officer is given in the
appendix.

Disciplinary enquiry is essentially a quasi-judicial inquiry. As such, the enquiry

officers cannot but pay due attention to the case-laws. Nevertheless, the fact
remains that many an enquiry officer does not know how to appreciate case laws.
As such, they find it extremely difficult to accept them or reject them. It is also
possible that they may not get the full text of the case laws at an easy reach.
Hence, it is advisable to get the copies of them and then submit them along with
the final statement of defence – The case laws may cause confusion in the enquiry
officers if at all some of them may not be successful to cause conviction among
them. Later, if and when the matter is taken to a court of law, these case laws may
come to the assistance of the delinquent. Sometimes, the enquiry officer may get
strictures for his neglect of the points in the case laws submitted before him. A
check list to help the delinquent when he prepares the final statement of defence is
provided below.
CHECK-LIST FOR THE PREPARATION OF THE FINAL STATEMENT OF
DEFENCE

1. During the preliminary inquiry, the government employee, if he is informed

of the inquiry, can cross-examine the witnesses in respect of the statements
made by them. They can also postpone it to a later stage. If this right is
violated, it should be brought out in the final statement of defence.
2. All statements made by the witnesses during a preliminary inquiry should be
got signed by the persons making them. If they decline to do so, the facts
should be recorded and certified by the officer making the preliminary
inquiry. The accused government employee has a right to see whether or not
the conditions stipulated in the rules have been complied with.

3. Appointing authority, any authority to which it is subordinate or any other

authority empowered by the Government in that behalf only can order, the
suspension of a government employee. Suspension should be resorted to
only when it is really justified with reference to the gravity of the offence, the
necessity to remove the officer from the discharge of his duties immediately
and the penalty that is likely to be imposed in case the charge is proved.
There should be a statutory review conducted in all cases of suspension. If
the proceedings could not be completed within six months of the suspension,
that fact should be reported to the higher authority.

4. The disciplinary authority / appointing authority only is empowered to frame

definite charge(s) against the employee.

5. The employee has a right to get the charge(s) along with the statement of
allegations on which each charge is based and any other circumstances
which it is proposed to take into consideration in passing order in the case.

6. The charge should contain the date of occurrence of the incidence and the
time wherever applicable. It should also contain a list of documents which
are going to be relied upon in framing the charge. The charge for a formal
enquiry should have a list of witnesses who may be examined. It should also
contain a sentence “others also may be examined if found necessary”.

7. The list of documents relied upon in framing the charge and which are
available for perusal can be requested for inspection. A request can be made
to get the copies or extracts of the documents so inspected.
8. The charge-memo should be signed by the appropriate disciplinary authority
and it should not be signed as for”….”

9. Fifteen days’ time should be allowed for submission of the written statement
of defence from the date of receipt of the communication of the memo of
charges to the accused government servant. On valid grounds and on further
request, the inquiring authority may or can extend the time for submission
of the statement of defence.

10. The accused government servant has a right to request for a personal
hearing to the inquiring authority after the submission of the written
statement of defence.

11. The government employee has a right to get a literal translation of the
charges, statement of allegations if he does not know the language in which
the charge is framed.

12. If the major penalty is contemplated, a formal enquiry is conducted. In

a formal enquiry, the witnesses are examined only in the presence of the
accused employee.

13. If a minor penalty is contemplated, the substance of the statements

recorded from the witnesses should be made available to the accused
servant. They should form a part of the statement of allegations.

14. Any records which the delinquent government employee wants to see
can be requested for and it can be done at any stage during the course of the
enquiry. In all such instances of request, the enquiry authority should make
a decision as to the relevancy of such requests and to decide whether or not
the delinquent should be allowed to peruse them.

15. On the first day fixed for conducting the formal inquiry, a few statutory
questions should be asked.

16. The prosecution documents can be marked and not to be proved. Any
attempt to prove the prosecution document by raising incriminating
questions by inquiry officer is against law and established procedure in
disciplinary enquires.
17. The inquiring authority is competent to modify the charges framed. If
that is done, the accused has a right to submit within a reasonable time a
further written statement in his defence.

18. If the enquiring authority is appointed by designation, he cannot hold

the enquiry if and when he is transferred out. On the other hand, if the
appointment is by “name of the officer”, he can continue to conduct the
inquiry even when he is transferred out.

19. Departmental enquiry once taken up should be continued and

completed at a stretch. Purposeful delay calculated to cause harassment or
victimization is unjustifiable.

20. Date of the enquiry, time and place should be intimated to the
employee. The same should be communicated to the prosecution witnesses
for taking their evidence, if that needs be.

21. Notice intimating the date of adjournment of the enquiry should

contains information relating to the date, time and place of inquiry.

22. Inquiry against officers placed under suspension should be conducted

speedily. Any inordinate delay for reinstatement or finalising the proceedings
is bad in law.

23. The inquiry officer putting questions to witnesses in the absence of a

presenting officer separately appointed will not vitiate the enquiry. 14

24. It is the duty of the department to see that the class IV employees are
provided with another employee to defend his case. They are entitled to get
the services of another employee15.

25. Whenever there is a presenting officer, the accused has a right to get
the services of another employee to defend his case. If a lawyer is the
presenting officer, the services of another lawyer can be made use of for
defending the case. The delinquent employee has a right to be informed of
the fact of appointment of the presenting officer and simultaneously to be
informed of his right to engage another government servant to defend him
and it should be done before the commencement of the inquiry16.
 26. Cross-examination of defence witnesses by the inquiry officer is in
plain violation of the principles of natural justice. 17

27. Inquiry officers should not have any bias, prejudice or personal
enimity to the enquired.

28. Disciplinary proceedings is of a quasi-judicial character.#

This check list is prepared in consultation with the provisions contained in the
Classification, Control and Appeal Rules applicable in some States in India.

It may be remembered that all laws/rules applicable for administration of

disciplinary justice have the same principles and therefore the same check-list can
be used, with suitable changes, whatever may be the law under which disciplinary
actions are initiated.

PROCEDURE FOR CONDUCTING INQUIRIES FOR INFLICTING MINOR

PENALTIES

The Civil Servants’ Classification, Control and Appeal Rules lay down specific
procedure for imposing minor penalties to government employees for misconduct.
According to law, no order imposing any of the penalties – censure, fine (in the case
of persons on whom such penalty may be imposed), withholding of increments or
promotion, recovery from pay of the whole or part of any pecuniary loss caused to a
State or the Central Government or to a local authority by negligence or breach of
orders – shall be passed except after –

(a) The government servant is informed in writing of the proposal to take action
against him and of the allegations on which it is proposed to be taken and
given opportunity to make any representation he may wish to make;

(b) such representation, if any, is taken into consideration by the disciplinary

authority; and

(c) the Commission is consulted in cases where such consultation is necessary.

The law makes clear that the disciplinary authority has to make up its mind in
the initial stage itself as to the nature of procedure to be adopted – i.e., whether or
not it would adopt the procedure for the imposition f a major penalty or a minor
penalty. Once a decision is taken, “it is not permissible for the disciplinary
authority to shift from one procedure to the other at the stage of passing of final
orders18.

The law also makes clear that the record of proceedings in cases where
imposition of minor penalty is contemplated should include –

(i) a copy of the intimation to the government servant of the proposal to take
action against him.

(ii) a copy of the statement of allegations communicated to him;

(iii) his representation, if any,

(iv) the advice of the Commission, if any; and

(v) orders of the case together with the reasons therefore.

MEMO OF CHARGES FOR INFLICTING MINOR PENALTIES

The Manual For Disciplinary Proceedings gives a specimen memo of charges

and it should be adopted for preparing the same. The specimen is given in
appendix 3. Along with the memo of charges, there must be the statement of
allegations as well.

As in the memo of charges for inflicting major penalties, there will be no

reference to the examination of any witness or to the opportunity for the perusal of
any record. If, however, any request for them is received by the disciplinary or
inquiring authority, the disciplinary authority has to dispose of the request
according to the merits of the case and communicate the decision to the delinquent
government servant.

Again, if the government servant does not know the language in which the
charge is framed, he shall be given a literal translation of the charges, statement of
allegations and all other communications, in his mother tongue.

Usually, the government employees do not request for a formal enquiry in case
the memo of charges is given for imposing minor penalties. A formal enquiry is one
in which witnesses will be examined in the presence of the accused government
servant. Usually, a formal inquiry is conducted only if a major penalty is likely to
be imposed.

If the inquiry is for inflicting a minor penalty, then the procedure to be adopted
will be determined by the disciplinary and inquiring authorities considering the
following factors –
(a) where a statement recorded from any witness is relied upon in support of a
charge, substance of such statement and the name of the witness should
also be communicated to the accused government servant as part of the
statement of allegations even if only a minor penalty is proposed to be
imposed.

(b) if the accused government servant requests for an opportunity to cross-

examine any such witness, a formal enquiry according to the procedure
prescribed should be conducted even where only a minor penalty is likely to
be imposed.

(c) where the evidence against the accused government servant rests
substantially on oral testimony and the accused government servant denies
the charges, the normal procedure should be to conduct a formal enquiry
irrespective of the nature of the penalty likely to be imposed.

(d) As regards to the supply of records to the delinquent, all that is required is
that he should have access to the statement of witnesses for enabling him to
cross-examine effectively if he so desires. This can be achieved by either (i)
the delinquent being given copies of the connected records or (ii) he being
allowed to puruse and take extracts.

WRITTEN STATEMENT OF DEFENCE

The government employees generally have a tolerant attitude to enquiries for

inflicting minor penalties. After all, a censure or a withholding of increments for a
period of time – and it is O.K. This is the mental attitude and therefore they are not
very serious about this sort of enquiries for imposing minor penalties. Some
employees think that they can make appeals and get the punishment quashed.
There are yet others who try to exert influence upon the enquiring authority,
disciplinary authority or appellate authority and see that they do not get any
punishment. In some instances, they manage to see that they get a “warning” only
in the matter. Often, such employees meet the inquiring authority and try to reach
a consensus as to the nature of penalty that may be imposed upon them. Such
people prepare their statement of defence as suggested by the enquiring authority.
Political patronage or administrative goodwill work very effectively to see that the
enquiry is conducted in a desirable manner to the accused government employee.
Those who do not have influence, patronage or goodwill may suffer the penalty as it
is. Only a few employees request for a formal enquiry. In any case, a written
statement of defence should be filed. It is always good to request for a formal
enquiry in all cases where the accused government servant does not get an
assurance as to the nature of punishment or the way the enquiry is intended to be
closed.

MINOR PENALTIES: CASE LAWS

1. An action initiated to impose a minor penalty cannot finally end in the

imposition of a major punishment19.

2. Procedure adopted was for imposition of minor penalty. The punishment

imposed was minor. Later, the appellate authority changed the minor
penalty to a major. This is illegal.20

3. The procedure initiated was for imposing major penalty. Without properly
completing the enquiry following the procedure prescribed for imposition of
major penalty, the disciplinary authority cannot impose a minor penalty 21.

4. The procedure adopted was to impose a major penalty, but only a minor
penalty was given. There is nothing illegal in that 22.
 CHAPTER – VII
PENALTIES AND OBJECTIVES
What are the objectives of disciplinary justice? The objective maybe deterrence –
in other words – it is intended to deter people who show misconduct. Studies
conducted show that the penalties in disciplinary proceedings do not deter the
employees in the way they should. It may be correction. Again, researches prove
that many erring employees do not think that they need correction. Then, what is
the purpose of punishment in disciplinary enquiries? Though a clear-cut answer to
the question cannot be given many government servants feel that the objective of
disciplinary justice is deterrent-corrective. Government has to function and it is
executed through the civil servants. There should be discipline in every service and
the purpose of punishment, therefore, is to maintain discipline in the services.

MINOR PENALTIES: WHAT ARE THEY?

The Classification, Control and Appeal Rules prescribe two types of penalties.
They are called minor and major. 1. Censure, 2. Fine, 3. Withholding of increments
or promotions, 4. Recovery from pay of the whole or part of any pecuniary loss
caused to a State Government or the Central Government or to a local authority by
negligence or breach or orders come under the category of minor penalties. Major
penalties are discussed in the next chapter.

Government Servants’ Conduct Rules do not say anything about minor and
major misconducts. The Code of Criminal Procedure classify offences into
cognizable and non-cognizable. Cognizable offences are said to be serious ones and
therefore the punishments for committing such heinous crimes are also serious
ones. They are imposed after conducting a fair trial in a judicious manner. The
punishments are – 1. Fine 2. Imprisonment for a period of time 3. Life
imprisonment 4. Death sentence and 5. Forfeiture of property. There is no
classification like major or minor in the penal laws. Except in the case of
imprisonment – where there is simple or rigorous – all the punishments are
considered as punishments only.

According to the Classification, Control and Appeal Rules, fine is a minor

penalty. Nobody knows about the amount of fine that can be imposed on a
government servant. The rules are also silent about it. This may mean that it is at
the discretion of the punishment authority to fix the amount of fine on the
delinquent. Likewise, there is no scale by which one delinquent is awarded a
censure while another is given withholding of increments. This means that the
goodwill of the punishing authority or the influence which may be exerted on it can
decide the nature and quantum of punishments. This is not scientific and as such
there takes place miscarriage of justice. What is the criterion by the help of which
the disciplinary authority decides a misconduct to be major or minor? One and the
same misconduct may be considered as major by one authority whereas it may be
deemed as minor by another. The subjective scales are often applied to determine
the nature of misconduct. Resultantly, an authority having high sense of value
may treat a misconduct to be a serious one while another having low sense of value
may consider it to be a minor misconduct. In the absence of any objective criterion,
there exists confusion in this sphere of government administration.

CASE ILLUSTRATIONS

Government Servants’ Conduct Rules read: “A government servant may accept

from any person a complimentary gift of flowers or fruits or similar articles of
trifling value, but all government servants shall use their best endeavours to
discourage the tender of such gifts”.

“Trifling value” is something not understandable. Some bouques of flowers –

orchids, anthuriam etc. – cost several thousands of rupees. A Bouque with
ordinary flowers may cause Rs.150/- to Rs.250/-.Can Rs.150/- or Rs.250/- be
considered as small amounts? An affluent disciplinary authority may consider
Rs.200/- or Rs.300/- etc. to be only a small amount. At the same time, a
disciplinary authority who is poor may take the same to be a huge amount.

1. Government servants are forbidden to make habitual use of vehicles and

animals belonging to others or to gravel free of charge in any vehicle plying
 for hire. The oft-alleged complaint is that employees who belong to certain
executive branches of the government travel in privately operating buses
without p0urchasing tickets. So much is the violation today that it is
accepted as a normal behaviour which does not invoke disciplinary action.
The reason is that nobody makes any complaint against the government
employees in such cases and therefore no action is taken. If an action or
disciplinary proceedings is initiated, what penalty can be imposed on such
employees? The punishing authority can give any penalty from censure
onwards. The discretion given to the appointing authority / disciplinary
authority is so vast that he can play on various types of penalties. Until the
penalty is pronounced, the delinquent officer feels at his wit’s end. This sort
of discretion given to the punishing authority makes the delinquent
employees to murmer and murmer always. A blue eyed son of the punishing
authority may get a censure while the one who is not favoured may get
withholding of increments.

2. A head of a department, fully drunk, went to an office at distant place from

the headquarters. The news appeared in the media. No action was taken
against him.

A middle level officer, fully drunk, went to an office for inspection. He was not
placed under suspension, but disciplinary proceedings was initiated against him.
He was punished by a censure which he got quashed in an appeal.

A lower level functionary, fully drunk, went to his office. He was sent for
immediate medical check-up and afterwards placed him under suspension. After
inquiry, he was dismissed from service.

What is this? It is administration of administrative justice? - Administration of

discipline in the department? The following decisions of the courts of law will make
matters more clear.

The penalty imposed must be commensurate with the gravity of the

misconduct. Any penalty disproportionate to the gravity of the misconduct would
be violative of Article 14 of the Constitution of India. 1 This principle is followed
from the classical school of criminology or even before; nevertheless, one does not
find it being followed strictly in disciplinary proceedings. A superintendent of police
used his official car to go to a church for giving a sermon to the faithful. The driver
of the car – a police constable told this to his colleagues – and the superintendent
came to know about it. He, being the appointing authority of the constables, was
keeping watchful eyes on the conduct of his driver. One day he found out that the
driver borrowed some money from a source which was prohibited. He placed the
driver under suspension and later imposed the penalty of withholding an
increment with cumulative effect. The offended driver appealed against the order of
the superintendent and on appeal, it was reduced to a warning.

Is it because the punishing authority is not well exposed to the principles in

penology and jurisprudence that they award any sort of punishment. Is it because,
the rule does not put any restrictions to their discretions to punish people in the
way that they want to or is it because that they want to show their authority by
imposing severe or light penalty as they want that they do in this way?

In any case, the damage caused to the delinquent employees because of this
unrestricted discretion is very severe. The courts are helpless here as the law is
such that “the disciplinary authority has very wide discretion of imposing any sort
of penalties individually or collectively on delinquent employee” 2. In disciplinary
proceedings, the penalty can be from censure to compulsory retirement or
termination of services. No Court in India has such a wide discretion as the
administrative authority enjoys in disciplinary proceedings. Every offence is
punished with certain specific types of punishment. A judge has to act within that
specific and specified limits of law when he awards punishments. In disciplinary
proceedings, no such specific or specified punishments are prescribed so much so
that the punishing authority can impose any types of punishments to the
delinquent. The decision to award the penalty is decided prior to the institution of
proceedings and more often than not it is arbitrarily done. Just conduct a
preliminary enquiry and then take a decision to initiate proceedings for inflicting
major or minor punishments. The subjective satisfaction of the disciplinary
authority is what is required here. Most unfortunately, no one can question the
discretionary powers and the subjective decisions of the disciplinary authority. In
some instances, suspension may be ordered and it may be even on unjustifiable
grounds. Personal prejudices, animosity, vindictiveness, bias, personality clashes
etc. are found to operate behind unjustifiable suspensions. If the
disciplinary/appointing authority is not prepared to reinstate the suspended
employee, then he has no option other than moving the Administrative
Tribunal/High Court. The courts take a lot of time for its procedure – issuing
notice, obtaining the counter, adjournments etc. – and purposeful delay tactics
work always to the disadvantage of the suspended employee. The result is financial
crisis and victimization.
PLAYING WITH EMPLOYEES!

The way punishments are awarded to delinquent employees may show that
some authorities play with the fate and future of employees. It is bad in law to see
that the appointing authority takes disciplinary action at any time as it wishes and
even here, its authority is not often questioned. An I.P.S. officer committed certain
irregularities during 1975-77. Disciplinary proceedings was initiated against him in
1987. There was an undue delay for the inquiry to be instituted against him. He
approached the Administrative Tribunal and prayed for quashing the departmental
inquiry against him. Accordingly, the Tribunal quashed it. What was the
Government / department doing for several years? And why was no action taken
against the employee at the appropriate time? Authorities are doing it and
therefore no one questions it.

In the above case, against this order of the Tribunal, an appeal was preferred by
the authority in the Supreme Court of India. The Supreme Court while disposing of
the case observed –

“The appeal against the order dated 16-12-1987 has been filed on the ground
that the Tribunal should not have quashed the proceedings merely on the ground
of delay and laches and should have allowed the inquiry to go on to decide the
matter on merits. We are unable to agree with the contention of the learned
counsel. The irregularities which were the subject matter of the inquiry is said to
have taken place between the years 1975-77. It is not the case of the department
that they were not aware of the said irregularities, if any, and came to know it only
in 1987. According to them, even in April, 1977 there was doubt about the
involvement of the officer in the said irregularities and the investigations were
going on since then. If that is so, it is unreasonable to think that they would have
taken more than 12 years to initiate the disciplinary proceedings as stated by the
Tribunal. There is no satisfactory explanation for the inordinate delay in issuing
the charge-memo and we are also of the view that it will be unfair to permit the
departmental inquiry to be proceeded with at this stage. In any case, there are no
grounds to interfere with the Tribunal’s orders and accordingly we dismiss the
appeal”.

This judgement making the law very clear came out, nevertheless, even now the
Appointing authority / Disciplinary authority initiates disciplinary proceedings
against the employees at belated time. The question is: “What is the immediate
provocation for initiating departmental inquiries against employees who are alleged
to have committed some irregularities in the long past? Surely, it is not the ardent
desire to administer justice or maintain discipline in the department. The affected
officer in the above case belonged to the Indian Police Service and therefore he
could move the courts of law to get justice. On the other hand, how many lower
level functionaries in the police department would be able to spend money, time
and energy to fight against the mammoth disciplinary authority in departmental
inquiry?

The authority has its organizational structure – the advocate general,

government pleaders, office staff, money and other resources – and it is not at all
difficult for them to fight a case against the employees in any court of law.
Functionally, operationally, financially, the “authority” is in an advantageous
position whereas the employee is not. They suffer under many counts to get justice
even from a court of law.

In 1995, an officer in the police department was suspended pending

disciplinary proceedings for a misconduct alleged to have been committed by him
about 8 years ago. On one side, there are judgements from High Courts and
Supreme Court of India specifying the limitations of time for initiating
departmental proceedings and on the other side, the administrative authority
overlooks such case laws and proceeds against employees in the pretext of
maintaining discipline in the department. It is here one observes the
meaninglessness of the disciplinary proceedings at abnormally belated time.

DIABOLIC ATTITUDE EXPRESSED!

The disciplinary authority passed an order as it found the employee to be guilty.

A warning was awarded and the disciplinary authority knew that warning was not
a punishment under the Rules. 3 In one instance, the warning was used as a
ground for withholding promotions4. Later the court interfered and ordered that a
warning cannot be used as a ground for withholding promotions. In another case,
the disciplinary authority gave a warning and directed that a copy of the order
might be paisted in the character roll of the employee. The court in that case
observed. “Warning used in the order really imposed the penalty of censure”. It is
not justifiable in law. But, how to find out a remedy for this sort of injustice done
in disciplinary matters? Should the employees go to the courts of law always and
every time and have recourse to expensive and time consuming procedures to get
justice?
 Because of the wide misuse of authority by the disciplinary authority, a number
of cases are filed in the courts of law. If there is a departmental inquiry pending
against an employee, the departmental promotion committee may not consider him
for promotions. Even the punishment of censure was considered as a ground for
overlooking seniority in the matter of promotions. In Mukunda Menon V. State of
Kerala, the Court categorically stated that a punishment of censure by itself was
not a ground for overlooking seniority in the matter of promotions5.

It has been noticed that the inquiry officer has a conscious or unconscious
affinity towards the appointing/disciplinary authority. Some of them feel that it is
their duty to support the disciplinary/appointing authority and towards this end
they may do anything and many things to justify the initiation of a disciplinary
proceedings and awarding of punishments. One wonders whether or not such
officers have any respect for law and quasi-judicial nature of inquiries! Allegations
are there that some inquiry officers meet the disciplinary authority to get advice as
to how to go about the conduct of the inquiry proceedings. Some overenthusiastic
disciplinary/appointing authority is accused of exerting undue influence or
pressure on the inquiry officers and instruct them as to what to do and how to go
about. The delinquent employees are also found to get hold of influential people to
win over the inquiry officers.

Because of the unjust approach of disciplinary authorities in initiation of

enquiries, many employees get the support of their service associations. In many
instances, the service associations interfere with the inquiry proceedings so much
so that they, sometimes, take coercive steps to see that employees are not
unnecessarily harassed by disciplinary enquiries. Instances are plenty to show that
the service associations are able to torpido the enquiries initiated against the
employees. They see that the punishments awarded are cancelled and in some
extreme cases, the punishing authority is transferred out. In some departments, it
has become almost impossible to take disciplinary actions even in genuine cases as
the service association do not allow them to be initiated. This is rated as a counter-
reaction to the widely misused authority of the disciplinary segment of government
services.

OVERENTHUSIASM TO PUNISH THE GUILTY

The guilty should be punished. But, sometimes one sees overenthusiasm in so

doing. In many cases increments are withheld and it is done with or without
cumulative effects. In other words, it may be permanent or temporary for a
specified period. Temporary period of withholding increments shall not be less than
three months and more than three years. Every order clearly specifies the period of
temporary withholding of increments. If it is not specified in the order, it means 3
months for temporary withholding of increments. It is casually observed that a
good many delinquencies are punished with by withholding of increments with or
without cumulative effect. Cumulative effect means that the imposition has the
effect of postponing future increments.
Employees who get a warning may ignore it; a censure many try to forget it. If
an increment is withheld, it has penal and financial significance on the employee.
He feels bad about it. He may go for appeal in some instances. The punishing
authority also knows it well and therefore in good many cases, withholding of
increments is imposed. Critics on disciplinary proceedings may subscribe to the
view that one finds an element of overenthusiasm among the punishing authority
to order for the withholding of increments. Some enquiry officers want to scratch
the employee in every disciplinary action as they think that they can justify the
order to initiate enquiries only if they, at least, scratch the officer under enquiry.

NO SCIENTIFIC CRITERION TO IMPOSE PUNISHMENTS

What is the scientific criterion to impose punishment on a government

employee? The punishing authority’s subjective satisfaction and decision made
thereon regarding the amount, quantum or extent of punishment is the only
criterion at present applied when awarding punishments. In certain cases, the
penalty is imposed with retrospective effect. There is the well settled law that “the
penalty of withholding increments cannot be imposed with retrospective effect” 6.
Yet, it is done. If an injustice is done by the punishing authority, the sufferer has
to go on appeal or approach the courts of law. It becomes a never ending process
and sometimes it takes years and years together to finalize the disciplinary
proceedings. The inquiry officer can drag on the proceedings in the name of
“administrative delay” and the sufferer always suffers and tolerates. He is helpless
and voiceless. So long as the rules do not make any limitation of time for the
disposal of disciplinary proceedings, it is at the pleasure of the inquiry officer to
conduct and finalize the proceedings at his wish and convenience. In some cases,
the inquiry is completed within a few weeks/months and in some other case, it is
dragged on to several years. In Joseph V. Senior Superintendent of Post Offices, 7
the inquiry in a disciplinary proceedings was initiated in 1974. It was concluded in
1979.
WITHHOLDING OF INCREMENTS WITH CUMULATIVE EFFECT

Withholding of increments with cumulative effect was treated as major penalty

by courts of law8. The Supreme Court here held the view: “When the penalty was
imposed withholding two increments with cumulative effect, it would indisputably
mean that the two increments earned by the employee was cut off as a measure of
penalty for ever in his upward march of earning higher scale of pay. The insidious
effect of the order is that the employee is reduced in his time scale by two places
and it is in perpetuity during the rest of his service with a direction that two years’
service would not be counted in his time scale of pay as a measure of penalty”. The
Court observed that it was as bad as “reduction to a lower stage in the time scale of
pay for a specified period”. This is a major penalty. Inspite of the rulings by the
courts, the procedure continues.

WITHHOLDING OF PROMOTIONS

Promotions can be withheld as a penalty and in such cases it shall be done

temporarily for a specified period. Temporary period of withholding promotion shall
not be less than six months and shall not be more than three years. If the period is
not specified, it will be considered to be six months. The rule says that withholding
of promotion shall not entail loss of seniority in that grade. Again the law lays
down: “An officer whose promotion is withheld, shall, if and when promoted to a
higher grade or higher time scale subsequently on promotion take his place at the
bottom of the higher grade or higher time scale.”

MISUSE OF POWER AND CRUELTY IN PUNISHMENT

Either the punishing authority does not know the rule or he/she thinks that
he/she can impose anything as a penalty for the misconduct of an employee. “A
warning is not a punishment under the rules. So a warning cannot be used as a
ground for withholding promotion”9 – observed the Court? When the punishing
mentality of the disciplinary authority is studied, it seems that in some cases it
misuses the authority. In the above case, an officer was given just a warning and
the authority took it for withholding one’s promotion and it means nothing but
cruelty of the first order. Withholding promotions means humiliation and
demoralization. In order to get out of such cruel punishments, the employees have
to approach courts of law and it means again additional expenditure. All these add
further burden and damages. In certain other cases, enthusiastic authorities may
with-hold promotions with retrospective effect and in one such case, the ruling was
given stating that such withholding of promotions with retrospective effect was
illegal.

RECOVERY FROM PAY

The Rule reads: “Recovery from pay of the whole or part of any pecuniary loss
caused to a State Government of the Central Government or to a local authority by
negligence or breach of orders” can be imposed as penalty. Recovery only from the
pay is what the law speaks of. Here too, the authorities do things as they want. In
Sekharan’s case, it was held: “The penalty permissible under the rule is only
recovery from the pay. Recovery from gratuity is not permissible.” 11

EVALUATION OF MINOR PENALTIES

Government employees are of various categories and they are generally called
Class I, Class II, Class III and Class IV. Out of these four classes, who are often
subjected to disciplinary proceedings? As many of the criminals handled by the
police come from low socio-economic backgrounds, it is seen that most of the
accused in disciplinary proceedings too come from the lower cadres. Most of the
employees against whom – percent-wise or volume-wise-disciplinary proceedings is
initiated come under the less privileged class of government employees. Why?

Class II employees – i.e., gazette rank – often become inquiry officers and class I
employees become the punishing authority. In that way, they are a privileged
community and always the class III and class IV employees become less privileged
and handicapped. They can always become only accused employees and that way,
they are at the receiving end of punishment. The punishing authority was given
such a discretion that they can punish their subordinates with any type of
p0enalties provided they observe certain formalities. One officer, while he punishes
his subordinate invariably writes: “The delinquent deserves maximum penalty that
can be given under the rules. But, I am taking a lenient view and impose the
penalty of ……. (he/she gives the maximum penalty which the wants to give)”. On
asking, why he writes in that way, he frankly tells that it is a method by which
even appellate authority may find it difficult to award a lesser punishment to the
accused employee. For, the appellate authority will think that the punishing
authority has already taken a lenient view and further leniency is not called for in
such cases. This attitude is bad an is nothing but miscarriage of disciplinary
justice.

In some States, withholding of increments permanently is considered to be still

a minor penalty. The judicial view, as held by the courts, is that withholding of
increments with cumulative effect is a major penalty. As the employees are
ignorant about the latest rulings from the courts of law, they suffer the
punishments. The inquiring officers as well as the punishing authorities are also
equally unaware of the ruling so much so that the employees are punished in the
way as they are done at present. A scrutiny of punishments amply proves that –

1. Penalty imposed does not become commensurate with the gravity of the
misconduct.12

2. Penalty imposed becomes disproportionate to the gravity of the misconduct. 13

3. Imposition of two penalties for one and the same misconduct is illegal. 14

4. A censure or warning awarded or proposed to be awarded to an accused

government servant need not be taken into account when his promotion to
the higher post is considered.15

5. Censure per se cannot be a ground for overlooking the seniority of an

employee in the matter of promotions.16

6. Stoppage of three increment with cumulative effect awarded after the

conviction of a person-without conducting any inquiry is illegal.17

7. A reversion on the basis of an adverse entry in character roll was held to be a

punishment.18

8. An employee cannot be reverted for not passing the examination within the
prescribed time.19

9. After promoting an employee to a higher post on the basis of merit and

selection, he cannot be ordered to retire prematurely on the basis of adverse
entries in his previous records before promotion. Any earlier adverse entry
loses its significance when an employee is promoted.20
 10. Just saying that an employee was taking part in politics cannot be a
sufficient ground for removing him from service. Politics is a word of wide
import. Hence, the part played by the employee should be concretely
established.21

11. Government’s power to dismiss an employee on the basis of conviction

in a criminal case has to be exercised fairly, justly and reasonably. 22

12. It is most unfair to discharge an employee from service for his trade
union activities.23

EVALUATION OF PENALTIES

As repeatedly pointed out earlier, the Classification, Control and Appeal rules
give such vast powers to the appointing/disciplinary authorities that they can
punish the subordinate employees in any way they want to. Several judgements
from the courts of law relating to disciplinary proceedings also prove that the so
named authorities impose panalties on the “erred employees” in the way as stated
above. One wonders whether or not a good many of the punishing authorities have
any or some knowledge in the penological principles and theories of punishment.
Therefore, the punishing authority imposes penalty and says: “let him go for appeal
or to a court of law to get it undone or reduced”. The most unfortunate result is
that inquiries, appeals and litigations are pending before the “authorities” and
courts of law for years together. The employees go after politicians and exert
influence on the appellate authorities to reduce, mitigate or undo the penalty
imposed. As indicated earlier, disciplinary proceedings have become an area most
misused by authorities and subsequently challenged. Just before the Departmental
Promotion Committee is conveyed, a number of inquiries are purposefully ordered
so that the “authority” can conveniently say “Inquiry Pending” and see that the
promotion is deliberately delayed. Some authorities, it is alleged, send anonymous
petitions against their own subordinates who are in disfavour with them and the
petition is addressed to them by themselves. Afterwards, they make an order for
conducting an inquiry and entrust them to a favourite officer for holding the
inquiry. They conduct a preliminary inquiry in such a way that ultimately they will
see that a detailed enquiry or formal inquiry in conducted. All these procedures
take a lot of time and the harassment given to the subordinate employee in such
situations becomes a matter of pleasures and enthusiasm for many who initiate
the enquiry and further proceed on it. A director general of police was accused of
involving in such unethical ways of writing anonymous letters to himself and then
ordering it to be inquired into by one of his favourties and thus to continue
victimization of the subordinate employees. In one such instance, an incident that
occurred in 1990 was inquired into in 1992 and the inquiry started on an
anonymous letter received by the head of the department. It is alleged that the
“person” who wrote the anonymous letter was the “authority” to order for the
enquiry and he ordered for conducting the inquiry. It means that the complaint
and the authority is one and the same person. Whatever that be, the order for
conducting the enquiry was kept without taking any further action on it up to
1994. In 1994, a memo of charge was issued to the officer. The officer made his
statement of defence and the inquiry is still (1977) not complete. It is being dragged
into and of course there is a pleasure even in such dragging of inquiries to any
date. Even when the employee retires on superannuation, in some cases, the
inquiry continues. In State of Punjab V. Khem Ram, the Supreme Court gave the
ruling; “If inquiry cannot be concluded before the date of retirement of the
employee, the course open to the Government is to pass an order of suspension
and refuse to permit him to retire and retain him in service till such inquiry is
completed and final order is passed therein” 24. This would imply further problems
to the employee. The employee will face further victimization even after the
retirement. The Courts are aware of this and therefore many courts hold the view:
“Disciplinary proceedings cannot either be launched or continued after the
retirement of an employee”. They further lay down the rule that the law permits
only a limited type of inquiry to be proceeded with, namely, an inquiry in regard to
withholding or withdrawing pension or of ordering recovery from pension. 25 The
governments are also of the view that disciplinary proceedings should be finalized
expeditiously. In this regard, an order passed by the Kerala Government reads:
“Certain instances have come to the notice of Government in which the disciplinary
action initiated against government servants for serious misconduct, dereliction of
duty etc. could not be finalized due to their retirement on superannuation.
Disciplinary action under the Civil Services (Classification Control and Appeal)
Rules can be initiated and continued against the government servants, only till
they remain in the service under Government. The penalties contemplated in Rule
11 of the above Rules cannot be imposed on them after their retirement. So far as a
retired government servant is concerned, the possible action that can be taken
against him is to withhold or withdraw pension or any part of it whether
permanently or for a specified period from him and to order recovery from pension
of the whole or part of any pecuniary loss caused to Government if in a
departmental or judicial proceedings, the pensioner is found guilty of grave
misconduct or negligence during the period of his service including service
rendered upon re-employment after retirement, as provided under Rule 3, Part III,
Kerala Service Rules.
 In the above circumstances, all the disciplinary authorities will take special care
and ensure that the disciplinary cases pending against the Government Servants
are finalized expeditiously by in any case, before the concerned government servant
retires from service on superannuation.26

Thus, to stop the maladies connected with the delay in the initiation of
disciplinary proceedings, the conduct of the inquiry and awarding of
punishments / exoneration, there is the urgent need to prescribe and fix time limit
at various stages, of the proceedings. Initiation of proceeding at the sweet desire of
the “authority”, dragging the inquiry to any distance of time, finding excuses under
the cliché “administrative delay”, further prolonging the decision-making as to
whether or not the accused should be punished etc. are issues that have not
captured serious administrative attention till now. This is injustice indeed!
 CHAPTER – VIII
MAJOR PENALTY: ITS
IMPLICATIONS AND EXECUTION
What type of misconducts can be / should be punished with major penalty?
What category of government employees often get this sort of punishment? Do all
the employees committing the same misconduct, when proved guilty, get the same
penalty? Do caste, religion, affinities etc. become a deciding factor in inflicting
penalties? Do the ignorance and lack of information among the inquiring authority
work as a handicap in the decision-making? All these and many more similar areas
call for in depth researches.

The Manual For Disciplinary Proceedings give special procedure for inflicting
major penalty for a delinquent government employee and it has been extensively
dealt with earlier. As it is clear, the subjective satisfaction of the authority is what
is required for initiation of major penalty or minor penalty. This power given to the
authority may be good in private undertakings wherein the disciplinary authority is
often the person who has invested money in the business or who makes payment
to his employees. In such instances, the owner of the private enterprises exercised
his authority and implements his decisions on the basis of his subjective
satisfaction. In government business (service), the authority is a ‘faceless” person
who does not gain or lose (?) anything by imposing minor or major penalty on the
employees. Government business is everybody’s business and especially in a
democracy, everyone is important and everybody and his opinions count very
much. In disciplinary proceedings, there may be political interference, interference
by trade union leader, service or employee’s associations, influential people and
affluent citizens, etc. Hence, unlike the authority in private service, the authority –
whoever he is – has only limited/very limited powers and interest to do things in
the way he likes or desires. Somebody is there on the Chair of the Authority. Even
when he sits on the chair, he knows that he can exercise his powers if and only if
many people like him to do the job in the way he likes to do. Many government
authorities know that their authority is temporary and is like a passing-show. Yet,
they function as authority as they have no option other than doing what they are
asked to do.

P.V. Madhusoodhanan (real name concealed) was an officer who used to

sexually exploit lady clerks working under him. A lady clerk who wanted to encash
the weakness of her officer yielded to everything the officer wanted her to do. One
day, that lady clerk was caught for misappropriating some fund. No disciplinary
proceedings was initiated against her, rather he managed to cover up the entire
misappropriation by remitting the fund from his pocket. Will or can such a lenient
attitude be taken in a private firm? Will the authority retain the lady clerk having
tendencies to misappropriate funds any longer? But, in government services, it
works as the authority himself does not have the genuine feeling that he is the
authority who has dejure and defacto power to exercise the authority for the
welfare of the organization. As said earlier, some subordinate employees can
pressure the political executive in a democracy to see that the so called ‘authority’
is made defunct or transferred out so that he does not exercise his paisted
authority. There are any number of instances to show that the major penalty
imposed by the “authority” is quashed or reduced to minor penalty by higher
authorities. No doubt, politics and political pressure can work very powerfully in a
democracy. In such situations, decision to impose major penalty after perusing the
preliminary inquiry reports, framing of the memo of charges, preparing of the
statement of allegations, formally conducting the inquiry, examination/cross-
examination of witnesses etc. become a waste of time, energy, manpower and
resources when the appointing authority / appeal authority does not impose a
major penalty.

MAJOR PENALTY: WHAT ARE THEY?

According to the Classification, Control and Appeal Rules, the following

penalties are considered to be major. They are –

1. Reduction to a lower rank in the seniority list or to a lower grade or post or

time-scale or to a lower stage in a time scale.
 2. Compulsory retirement.

3. Removal from service

4. Dismissal from the civil service

5. Reduction of pension.

What are the misconducts for which major penalty can be imposed? There is no
special or specific rule to decide it; yet it has to be decided immediately after the
preliminary inquiry is conducted. In any case an order for a formal inquiry is to be
passed for the purpose and it is often done by the appropriate authority. In the
absence of any specific rule or law for deciding the penalty for a particular
misconduct of a government employee, the decision to an oral or non-oral inquiry
will depend heavily upon the likes or dislikes of the authority to the delinquent. An
officer who belonged to a particular community was accused of initiating
disciplinary proceeding for imposing major penalty for those who did not belong to
his community. The officer who originally belonged to a lower caste got himself
married with a woman of a higher caste. Thereafter he started to identify himself
with the members of the caste to which his wife belonged. The near and dear ones
of the officer blamed him for his borrowed status and just to impress upon people,
he tried more and more to identify himself with the members of the community to
which his wife belonged. As a defence mechanism, he often resorted to
compensation and it was done by initiating disciplinary proceedings against those
who belonged to lower caste, community or a religious group to which his wife did
not belong. There is allegation that the criterion to decide whether or not major or
minor penalty should be implemented dep0ends to a great extent on case and
community considerations. If the allegation is true to the least, then it is nothing
but gross injustice in administration.

Like caste and community, the academic qualifications are also found to be a
motivating factor for decision making and in the administration of disciplinary
justice. A superintendent of police who possessed more than two post graduate
degrees – all in pass classes – felt less infront of his better learned associates. He
was black coloured and had nositating appearance. He felt still less infront of
better looking and handsome colleagues. Minor misconducts were interpreted as
major misconducts if they were committed by better read and more handsome
employee who worked under him. The criterion to decide the nature of penalty-
major or minor-depended upon how inferior the superintendent felt before his
associates and subordinates. This happened because there was no objective scale
by the help of which one could decide the seriousness of the misconduct and the
nature of penalty stipulated.

COGNIZABLE AND NON-COGNIZABLE OFFENCES

Criminologists may subscribe to the view that the division of the offences under
the Indian Penal Code into cognizable and non-cognizable was, perhaps, the single
major factor for ensuring some justice to the offenders. If that was not done, many
people who committed non-cognizable crimes ought to have been booked for
committing cognizable crimes and vice versa. Likewise, the punishment also was
fixed for each type of offences. This mechanism in decision-making was not there,
then a good many offenders who would have committed petty offences ought to
have got very serious punishments which could not be proportionate to the gravity
of the offences they have committed.

Even with so many restrictions put on the decision making powers of the
enforcement agencies, one sees misuse of discretionary faculty. Sometimes, they
add many sections of law to make the offences to appear more serious and thereby
they try to make everything very heinous. Likewise, sometimes, only the sections to
make the offence to be simple are p0ut so much so that the law enforcement
machinery wants to see everything lightly. This hard or soft approach is seen even
in disciplinary proceedings! The Disciplinary authority can see everything in a
simple or harsh way as he/she wants to see and this is so because the rules are
very vague, elastic and are of such a nature that they can be mis-interpreted or
misused by the authority if he/she wants to do so. Allegations are there that
partiality, parochialism, hostility, personality clashes etc. that many exist between
the authority and the employee often play a vital role in deciding whether or not
the inquiry should inflict a major or minor penalty to the employee. The authority
is very much privileged here and the delinquent or accused employee is highly
handicapped and to that extent is not privileged.

MISCONDUCT: MORE HEINOUS THAN RAPE!

There was a time when the offence of rape was punished by judges after
applying a lot of discretions so much so that some judges awarded short term
imprisonment while others pronounced long term incarceration to rapists. The
sentencing behaviours of judges depended very much upon their personality make-
up, values, morality and out-looks. In order to put control over the discretionary
powers to judges, rape law was amended and a minimum period of imprisonment
was prescribed – i.e., seven years to rapists. Even the discretion of judges who
decide judicially is curbed down by law. But, in disciplinary proceedings, the law
does not put any sort of controls over the discretionary powers of the “authorities”
and it would mean that the authorities are free to exercise their discretion in the
way they want it to be exercised. Most unfortunately, some authorities are found to
misuse the discretionary powers. There is strong demand from the employees to
control the authorities in their discretionary powers being used or misused during
disciplinary proceedings and they demand so because they are often victimized in
the pretext of administering disciplinary justice.

REDUCTION IN RANK AND HUMILIATION

Reduction in rank means monetary loss and social humiliation to the

employees. The employee who is punished in this way feels “less” infront of his
colleagues, superiors and co-workers. The objective of such a penalty is surely not
correction of the employee; rather it is demoralization and mental harassment. In a
Country where employment potential is very minimum, an employee who is
humiliated to this extent may be compelled to pull on the job. There is all
likelihood of inefficiency being noticed and cynicism developed in such situations.

The objective of penalty is recognised to be correction and rehabilitation of

offenders including the hard core criminals. At such an atmosphere and
philosophy reduction in rank will be a cruel and barbarous treatment given to a
elinquent employee, particularly when specific rules have been framed to award
such types of punishment. A humiliated employee is an expensive employee and
the outp0ut from him will be far away from being satisfactory. He will be unhappy
and he will show it in his words and activities. The punishment has only negative
value.

The rule reads: “The period of reduction shall not be less than six months and
not more than five years. If the period is not specified in the order, the period of
reduction shall be deemed to be six months-provided that in the case of reduction
of rank in the seniority list, such reduction shall be permanent”.

Some overenthusiastic “Authorities” order reduction in ranks even with

retrospective effects. In Ram Singh V. State of Punjab, the Court categorically
stated that: reduction order cannot be passed with retrospective affect” 1.
 The rule is that: “Reduction to a lower grade or post shall be to the grade or the
post immediately lower to the grade or the post held by the officer, but not to a
grade or post lower than the grade or post to which he was initially appointed”.
Though the rule is very certain and specific in this regard, it so happens, at times,
that the reduction is made without observing the rules made in that regard. The
decisions of the courts are also very clear in this matter. “A person initially
recruited to a higher time scale, grade or service or post cannot be reduced by way
of punishment to a post in a lower time scale, grade, service or post which he never
held before. The penalty of reduction in rank of a government servant initially
recruited to a higher post to a lower post virtually amounts to his removal from the
higher post and the substitution of his recruitment to a lower post affecting the
policy of recruitment itself.” 2 These types of reduction show nothing but misuse of
authority. If the punished employee cannot move the court of law against such
unjust administrative decision, he has to suffer the loss and humiliation. The
punishing authority is inclined to think that anything can be done in the pretext of
punishing a delinquent employee and it means nothing but miscarriage of justice
in disciplinary proceedings.

Again the rule is: “Reduction to a lower stage in the time scale can be with or
without the effect of postponing future increments. If no mention is made in this
regard in the order of reduction, the reduction shall be deemed to be without the
effect of postponing future increments”. Reducing an employee into a lower time
scale and then withholding increments seem to be too harsh a penalty. In a way it
is like awarding two punishments for one and the same offence. No civilized
country can and will tolerate this sort of penalty for its employees; yet the
employees tolerate and work in Indian climate.

From the points of view of inflicting pains, humiliation, harassment and

victimization, the penalty of reduction in rank is indeed very severe. No person
having self-respect may continue to work in such an organization – in such
humiliating mental conditions. Yet people work-work with indifferences (?), with
rejection (?:), with intolerance (?), with antipathy (?), with murmer (?) or with many
or all of those states of mind? Studies conducted in this area prove that the
continuation of an employee in such a mentally down and psychologically dead
condition is not conductive for the betterment of the organization. If that is so, why
not send him out of service?

The laxity with which some “authorities” award reduction in rank is indeed
culpable. In the pretext of enforcing discipline, certain departments resort to the
infliction of this sort of penalty more often than the same being awarded in certain
other departments. The authorities argue that such a punishment is more
deterrent than other types of punishment – but deterrent to whom? The principle
of “eye-for-eye or tooth-for-tooth” was considered to be very retributive in its
approach. It could multiply only physically handicapped people in society so much
so many civilized societies stopped such inhuman treatments to criminals.
Deterrence for deterrence’s sake is not deterrent at all!

Reduction in rank is said to be retributive in nature and causes only to multiply

the number of mentally resisting employees in the organization. A person whose leg
is cut off, whose hands are chopped off, eyes are plucked out cannot live with a
feeling of decency. Likewise, the employees work efficiency will be affected very
adversely when he is reduced in rank. An employee who is handicapped by
reduction in rank cannot live with a feeling of decency. His enthusiasm to work will
be badly affected to the disadvantage of the organization in which he serves.

What category of employees suffer from this sort of humiliation? Studies may
show that only lower level functionaries are given this penalty more frequently than
the same being awarded to higher-ups in the service. Why? The higher-ups are
better qualified and they may get out of the organization if they are given reduction
in ranks. Lower level functionaries cannot do so as their employment potential is
not bright in Indian society. Even in applying the theory of retaliation – i.e. eye-for-
eye-, no discrimination was shown. Offenders who committed certain categories of
crimes were indiscriminately given the punishment of retribution. But, in
disciplinary proceedings one may see discrimination in such a way that employees
who commit same or similar type of misconducts are given different types of
punishment totally basing on the likes, dislikes, attitudes and out-looks of the
punishing authority. One employee may be reduced in rank while another may be
given a warning even when they have committed same or similar type of
misconducts.

The rule concerning reduction is indeed very cruel and in tolerable. It reads:
“An order of reduction to a lower post or to a lower time scale shall entail loss of
seniority. An officer so reduced shall take his place in the lower grade or in the
lower time scale at the top of the list of officers in that grade or time-scale. He shall
be considered for promotion on the completion of the specified period of reduction.
On promotion, he shall take his place at the bottom of the higher grade or higher
time-scale”.
 The penalty puts the employee further down by the imposition of further
conditions. Nobody is certain about the type of misconducts for which an employee
can be put into these sort of harassments one after the other. What for? And why
this uncertainty in disciplinary proceedings?

COMPULSORY RETIREMENT AND UNCERTAINTY

In compulsory retirement, an employee gets terminal benefits already earned by

him.3 This does not amount to dismissal, removal or reduction in rank under Art.
311 of the Constitution of India or under the Service Rules 4 – observes the
Supreme Court. Again, for what sort of misconducts, compulsory retirement can be
ordered is not clear in any rules. Of course, the disciplinary authority can impose
any kind of penalty to an accused government servant provided the procedure for
inflicting the penalty has been followed. The judicial view is that such a wide
discretion is vested on the disciplinary authority.5

AN UNUNDERSTANDABLE PENAL PHILOSOPHY!

The major penalties prescribed in the Classification, Control and Appeal Rules
are really hard in all senses. Penologists may ask the following questions –

1. An employee is punished with a major penalty when he is said or found to

have committed a serious misconduct. If he has committed a serious
misconduct, then he should not be allowed to continue in service. By
withholding some increment in a cumulative way from an employee who
committed a serious misconduct and then allowing him to continue in
service, no useful purpose will be served for the employer. People exhibiting
serious misconducts, if they continue in service, will cause havoc in many
ways.

2. Withholding some increments cumulatively means monitory loss and

punitive feelings for the employees. Can such a state of affairs/mind for the
employees improve the administration? If it may, how? If not, what is the
purpose behind awarding such punishments? The employees in such
situations are likely to resent against the system, authority and
environment. They may develop a cynical attitude with a negative approach.
 3. Reduction of rank of course has a penal significance to all. If an employee
has been responsible for committing a serious misconduct and he is allowed
to work in a lower post, it does not again ensure any administrative
advantage. The intention of the punishing authority here is not at all
correction, rather, it is humiliation and deterrence. Deterrence has little or
no effect upon the government employees as misconducts co-exist with
deterrence. If so, what is the real objective behind reduction of rank?

4. Who is this disciplinary authority in government service? It is a “he or she?

Who has no permanency in a particular post. The disciplinary authority is
not the employer. He/she is also just like the accused employee as both are
employed by the same government to perform certain jobs for the people.
Government business means and contains always the possibility of undue
influence being exerted on the punishing authority. As the punishing
authority has a lot of discretion, it can be compelled to exercise its discretion
this way or that way by the political executives. The politicians’ role in
awarding, amending, mitigating and cancelling the punishment cannot be
ignored in a democratic set-up. Instances are plenty to show that employees
who are terminated by the authority come back after some time – with the
blessings of political patronage.

5. A punished employee should have the facility to correct himself of his evil
habits. What is the arrangements made for the purpose? As it is, nothing is
done for the p0urpose of correcting the erred employee. As such,
punishment becomes only punitive in nature, Penologists may endorse the
view that punishment for punishment’s sake is no punishment at all.

COMPULSORY RETIREMENT AND COMPENSATION

Appointing authority has the power to suspend, dismiss, remove or order an

employee to compulsorily retire from service. For, the power of appointment
conferred by Article 229 (1) of the Constitution of India means and includes all
these powers – says the Supreme Court of India. 6 The position is made more clear
when the Supreme Court says further than the power to appoint persons ordinarily
carries with it the power to terminate appointment. 7 However, the termination
should be subject to conditions prescribed in that behalf by the authority
competent to appoint. In public interest, an employee can be ordered to retire
compulsorily. In such situations it will not be violative of Article 16 of the Indian
Constitution8.
 For asking a government servant to retire compulsorily, there are some
conditions such as attaining of a certain age or completing of a certain period of
qualifying service etc., There were instances in which compulsory retirement was
ordered for civil servants without observing these conditions. This sort of
administrative decisions, in disciplinary proceedings, are treated as a dismissal or
removal within the Article 311 (2) of the constitution of India 9. This principle which
is well settled is applicable in all cases where there is no rule fixing the age of
compulsory retirement or if there is one and the government servant is
compulsorily retired before the age prescribed thereon.

Compulsory retirement is a major punishment and that is given after the

completion of certain qualifying service – i.e., service qualifying the employee to get
pension. But a scrutiny of judgements from the courts of law may show that
employees who are compulsorily retired have a lot of grievances to say about the
way the punishment is awarded. The following case laws will make the position
clearer –

1. The rule is that a government employee can compulsorily retire after 25

years of qualifying service. The qualifying service here means the service
which makes the employee eligible for pension. In Hansraj’s case, it was held
that the order or compulsory retirement in the case of an employee who did
not have 25 years of qualifying the service was illegal 10. Looking at the
decision of the appointing authority, one may see that there is something
wrong in the decision-making process itself. A simple rule – i.e., compulsory
retirement on completion of 25 years qualifying service is very difficult to
understand? Yet such decisions are taken and in many instances the
decisions are taken not in fairness or justness. This approach forces
employees to have recourse to courts and by the time a decision comes from
the courts, the employee may have to retire on superannuation. In such
instances, the employees may have only monetary gains which does not
mean anything when compared to the social stigma and humiliation
attached to the employees who are ordered to comp0ulsorily retire. Very few
people only will come to know about the court decisions. The expenditure
spent to win the case and the amount earned after the victory from the
court, when compared, it may be seen, sometimes, that the expenditure is
more than the earnings. In all cases, the Government stands to lose
monetarily by these sorts of administrative decisions. Therefore, the
emerging view is that the appointing authority responsible for causing
 monetary loss to the Government by such immature decisions should be
made responsible for compensating the loss caused to the Government.

2. Certain individuals when they are elevated to the position of an appointing

authority in Government, seem to forget their past. They think that they take
decisions always to the advantage of the Government. In one such instance,
the decision regarding compulsory retirement was principally based on the
entries that were made about 20 years ago-i.e., before the date on which the
decision was taken. The court found that the order was arbitrary. Such
arbitrary decisions are taken without applying judicial mind.

Compulsory retirement – that too, often at the fag end of one’s career – is as bad
as a premature death to any employee. The hang-over of the social stigma and
mental agony continues to dominate his life even after retirement. He has to live
like a released prisoner or an ex-convict and therefore, the decision has to be made
with meticulous care, objectivity, honesty and just-mindedness. Are the executive
authority competent to do these things in an impartial way? Should they not
consult the judicial authority to ensure that the decision taken is the best in the
given circumstances? In one case, an employee was promoted and it was done on
the basis of merit and ability. Afterwards, he was asked to compulsorily retire.
There was nothing to suggest any inaptitude or inefficiency after the promotion of
the employee. Then why was he asked to compulsorily retire. The court found that
the order of compulsory retirement was not sustainable. 12

The appointing authority issued an order casting aspersions against the

accused employee and thereby attaching very severe stigma on him. This sort of
order amounted to dismissal of the employee from service. Such type of orders
surely denied the protection guaranteed under Article 311 of the Constitution and
therefore it was held to be illegal13. One may observe in such orders that the
punishing authority goes beyond their powers and is therefore a patent denial of
proper administration of disciplinary justice.

REMOVAL FROM SERVICE

The removal of an employee from the service not ordinarily disqualify him from
getting a future employment. This shows that the punishing authority feels that he
is eligible and fit to be employed elsewhere. The rationable behind such decisions
is not well understood. A serious misconduct which makes the employee to be
unfit to work in government service is a serious misconduct which should make
him ineligible to seek other employment as well. This is not seen in such instances.
This may mean that the misconduct is not that serious and therefore there is no
justification to remove the employee from service. In effect, the impact of removal
means almost a dismissal for the employee. Whatever justifications can be brought
dejure for the future employment of the employee, defacto it may be virtually
impossible for him to get a future employment. In ordinary man’s assessment and
in current parlance the words “dismiss” and “remove” have almost one and the
same meaning. It means nothing but termination of a person’s office and the effect
is that he will be, in all probability, denied of future employment by others.
Instances are there that government servants were removed from service just for
over-staying the leave. The court observed that such removal for overstaying one’s
leave was illegal.14

Termination of service should be on valid grounds. Termination on account of

“administrative grounds” and what are these administrative grounds are not
specified. The court observed that it was as good as “non-statement” of any
reason.15

DISMISSAL FROM SERVICE

Employees are dismissed from service without holding an inquiry and without
communicating the reason for not holding the inquiry and the decision was held to
be invalid.16 What do they mean? People who enjoy certain authority do or move
matters in the way they want. What action can be taken against such “so called”
authority? By the time action is initiated, the authority who committed such
mischief is no more found to occupy the chair. Another individual comes as the
authority and it becomes his responsibility to defend his predecessor in office. This
sort of “no responsibility” – makes some authorities to do anything they want in
disciplinary proceedings. The result is harassment and victimization of the accused
government employee. In one case, a director general of police who initiated action
and the government secretary who saw that an order was issued-both-left their
office by the time an order was passed in the disciplinary enquiry. The former
retired from service and the latter got transferred out. The inquiry was entrusted to
an inspector general of police who had no sense of values. He delayed and delayed
the inquiry to such a time that he too ultimately left his office under order of
transfer. Thus the inquiry was pending before the disciplinary authority. The
accused government employee made all attempts to conduct the inquiry in a
speedier way, but in vain. Finally, when the inquiry was complete, it was found out
that there was no justification for initiating the disciplinary proceedings. Action
could not be taken against anybody as one had retired on superannuation and
others got transferred out. The accused employee got all his benefits treating even
the period spent under suspension as on duty. As he was mentally tutored,
financially persecuted, socially humiliated, he wanted to move the civil court for
claiming damages. Many in the department discouraged him as they were afraid
that such an action would even invite further victimization from higher ups. For,
the higher ups are privileged enough to initiate action against subordinates who
are handicapped to be at the receiving end of the disciplinary proceedings. In one
disciplinary action, the employee gave a reply to the proposal to remove him from
service. Later, a medical certificate was produced by the employee. Relying on it,
the department passed an order allowing the employee to retire on invalid pension.
After more than an year, the government passed an order and the order revoked
the order of retirement and further ordered that the employee should be deemed to
be continuing under suspension. The disciplinary proceedings was then completed
and an order of dismissal was passed. There were a lot of complications and finally
the court interfered. The court held the view that “in the absence of any provision
entitling government to revoke an order of retirement on medical ground which has
become effective and final, the revocation order must be held to be illegal and
therefore the order of dismissal was also a nullity.” 17

In disciplinary proceedings, maximum problems are for the accused

government employee. The inquiring officer is functioning as quasi-judicial
authority, the disciplinary/appointing authority is performing as an evaluating
authority to punish or exonerate the employee. They pass judgements and they are
challenged in judicial courts and in many of the cases, the courts repeat one and
the same grounds for setting aside the decisions of the punishing authority.
Nobody, it seems, takes serious note of these judgements so much so that the
punishing authority is found to repeat the same defects which the courts have
repeatedly pointed out as against the principles of natural justice. Why?

Thus one may see that disciplinary proceedings in an area where a lot of
administrative injustice is being perpetuated. Everything is done by the executive
authority. Preliminary inquiry, detailed enquiry, formal inquiry, non-oral enquiry
etc. are conducted by the executive authority. The punishments are also given by
the executive authority. The punishments are-especially major penalty-more cruel
than the same given to hard-core criminals in criminal cases by the courts of law.
The leniency shown to recidivists and hardened criminal is not shown to
government employees. In criminal proceedings, the court take a favourable
attitude to the accused when two views are possible – one favouring the accused
and the other not favouring the accused then the courts accept the view favourable
to the accused. In criminal cases, judicial precedents and procedure established by
law are meticulously followed. In departmental proceedings which is said to be
quasi judicial, executive perform the task, sometimes, without observing the
principles of natural justice and the result is administration of disciplinary
injustice to employees. What a deplorable state of affairs indeed!

CHAPTER – IX
DISCIPLINARY INQUIRIES AND
THE COURTS
Once a disciplinary enquiry is initiated, it takes many months and, sometimes,
year for the authority to pass final orders in the matter. Generally, there exists, a
trend – as the allegation goes- to see that the officer under enquiry is punished.
Once the punishment is awarded, there is the appeal, review etc. A lot of pressure,
force, influence etc. may be exerted during the various stages of the enquiry to see
that something favourable comes from the authorities. For this purpose, the
employees go and meet many in power and explain to them all points which are
favourable to them. In spite of all these, if they are punished, then a good many –
particularly those who belong to the lower cadres – do not go to a court of law. The
reason is that they are not financially sound to meet the expenditure. There may
be other reasons as well. Some of them may be afraid of the evil consequences to
which they may be exposed to if they go to courts of law. Some may not be quite
confident about their success in their litigations. Some may be advised not to go for
a legal battle between them and their authorities. There are yet others who think
that suffering the punishment is more advantageous than fighting the cases in a
court of law. Anyway, some casual studies conducted show that more than 60% of
the litigations filed before the courts end in obtaining judgements favourable to the
delinquent officer. Are the troubles taken and the money spent worth rewarding
even when a favourable judgement is obtained? In some of the judgements, there
are structures passed against authorities. In almost all judgements one sees
irregular proceedings adopted, violation of the principles of natural justice, refusal
to give reasonable opportunities to the delinquent etc. as the causes for awarding
favourable judgements to the officers under enquiry. Filing of litigations before the
courts of law shows that there is something wrong in the entire process of
conducting disciplinary enquiries. The courts of law, time and again, give rulings to
the “Authorities” and this chapter discusses some of them”.

MANUAL FOR DISCIPLINARY PROCEEDINGS

The Manual For Disciplinary Proceedings is not a statute passed by the

legislature, yet it embodies sound principles regarding the procedure to be strictly
followed in disciplinary enquiries. Most unfortunately, many inquiry officers have
little or no information about the contents in the Manual. One cannot blame them
for their ignorance as one cannot expect them to know and appreciate the finer
points of law incorporated in the rules. As a result, they more often than not,
conduct the inquiries in a haphazard manner.

CASE EXAMPLES

1. In a memo of charges issued for an oral inquiry to be conducted for imposing

major penalty, there was no mention about the examination of witnesses.
This is against the rule and it shows that the one who drafted the memo of
charges was not aware of the provision of law regarding the examination of
witnesses in an oral inquiry.

2. One the day fixed for conducting the enquiry, the inquiry officer did not ask
the statutory questions – “you have received a copy of the charge(s) and
statement of allegations in support of the charge (or) charges) and submitted
your written explanation. Have you anything further to add before I proceed
with this oral inquiry”.

3. In an oral inquiry, immediately asking the statutory questions, the inquiry

officer started to ask many incriminating questions to the officer under
inquiry. He did not know that the procedure vitiated the enquiry.

4. The inquiry officer made attempts to prove the prosecution documents by

asking incriminating questions to the delinquents.
 Thus, one may see that the ‘so called inquiry officers’, out of their sheer
ignorance, fail to conduct an inquiry in the way the Manual For Disciplinary
Proceedings prescribes. Most of them do not know what is meant by incriminating
questions, examination, cross-examination, fact-in-issue, issue-in-fact, charge,
contents in a charge, principles of natural justice, reasonable opportunity etc. They
do not strictly follow the instructions in the Manual. In Kesavan Nair’s case, the
court has rules: “The Manual For Disciplinary Proceedings’ although not a
statutory rule, embodies a sound policy. The instructions in the Manual have to be
followed”1

SUSPENSIONS AND INQUIRIES

In some inquiries, the officers would be placed under suspension. The grounds
of suspension – or the grounds on the basis of which suspension may be ordered –
are specified in the Classification, Control and Appeal Rules. A suspension can be
ordered only after an objective assessment of the situations in each case. 2 But, in
reality, it is ordered under extraneous pressures and sometimes even without
holding any preliminary enquiries. The ruling is: “An order of suspension passed
under extraneous or political pressure cannot stand” 3. Some authorities take a
light attitude towards suspensions. They seem to entertain the view: “if the
suspension is not as per law or is against the established principles, let the
suspended go to the court and get it quashed”. They take this culpable attitude
because there is no victimological compensation granted to the suspended in cases
of unjust suspensions. In one case, the district collector suspended a junior
agricultural officer whose appointing authority was the Director of Agriculture. He
approached the Court and the court ruled: “District Collector has no power to
suspend a junior agricultural officer appointed by the director of agriculture” 4. The
law is very clear that the suspension can be ordered only by the appointing
authority or any authority to which it is subordinate or any other authority
empowered by the Government in that behalf.

So much is the ignorance of the “Authorities” that they sometimes suspend the
employees with retrospective effect. In the case of Sadasivan Pillai, the ruling is
given – i.e., the rules does not empower retrospective suspensions. 5 However, an
order of dismissal, removal or compulsory retirement from service can be passed
with retrospective effect from the date of suspension and not with effect from an
anterior date.6
SUSPENSION: A CRUDE WAY OF PUNISHMENT

Whatever may be what the law speaks about suspension and its impact upon
an employee, anybody will accept in all fairness that every suspension has its
penal significance. People commit suicide during the period of suspension. Unable
to maintain the family, some officers suspended from service sell their valuables to
subsist in life. They find that the entire economic and financial position is shaken
and they suffer social humiliation, mental agony and family crisis during the
period they remain under suspension. Of course, there is a ruling: “Although
suspension is not a punishment, an order of suspension is not to be lightly passed
against the government servant. It results in grave civil consequences to the
officer”7. What are these civil consequences? The “Authorities” seem to be not
bothered about them-callously indifferent to them so much so that they suspend
civil servants and retain them in that condition for a long time. They do it even
with officers who are due to retire shortly. In Dr. Vellayani Arjunan’s case as
pointed out earlier, the court observed: “suspension should not be continued
indefinitely especially when the employee is due to retire shortly” 8 Are the
“authorities” deriving some sadistic pleasure when they do such unjust things
calling for immediate intervention by courts? Psychologists will have to answer this
question. The courts are, as stated elsewhere, very specific and categoric in their
decisions in the case of suspensions-i.e., an officer should not be kept under
suspension for a long time unnecessarily 9. What is meant by unnecessarily? This is
where the authorities should apply their honest mind with justness, fairness and
openness. In one instance, the suspension continued for 8 years without finalising
the disciplinary proceedings and in another case an officer was placed under
suspension after 8 years since the alleged misconduct had taken place. All these
have demoralizing effects on the government employees.10

Whenever a suspended employee meets the authorities and requests them to

reinstate, their ready-made answer is always that “suspension is not a
punishment”. They fail to understand that the suspended employees also do not
say that suspension is a punishment. What they say is that the continued
detention in a “suspended position” causes irreparable damage to them and it has
got penal or punitive impact in their lives. Whenever the authorities speak out that
“suspension is not a punishment”, they seem to teach the suspended some new
things – THE WISDOM – and they laugh at the fate of the suspended. These ill
informed “authorities” have read only a portion of the judicial pronouncements.
They fail or better refuse to appreciate the full text of the courts’ judgements. The
courts feel that the suspension “results in grave civil consequences to the officer” 12.
For, suspension has “undeniable penal significance” and it affects a government
servant injuriously.”13

SUBSISTENCE ALLOWANCE

Subsistence allowance is a right of the suspended. But, in some cases, the

order suspending the employee will not say anything about the subsistence
allowance. This is purposeful and the intention, often, seems to be to cause
financial difficulties to the suspended. In many States, specific rules are there
regarding the payment of subsistence allowance. The courts rule out: “if there is no
such provision, the public servant will be entitled to his full emoluments during
the period of suspensions”14.

Government employees are not allowed to work and earn money during their
period of suspension. If they work and make money, it will be against the
Government Servants’ Conduct Rules. In this situation, the ready payment of the
subsistence allowance is a necessity even under the moral or humanitarian laws.
In A.V. Mohal’s case, they ruling is: “due to non-payment of subsistence allowance
the employee could not attend the enquiry”. As a result the court reduced the
penalty of removal from service to compulsory retirement.15

PRELIMINARY INQUIRY

It does not require any special instruction in law to say that a preliminary
enquiry should be conducted before a formal inquiry is held. Dishearteningly
enough, there are any number of instances in which the “Authorities” order
suspension of the employees without even conducting preliminary inquiries. Since
it is done by the “Authorities”, the employees become helpless in many respects.
The irony is that a departmental enquiry is conducted for violating the conduct
rules. In order to hold an enquiry on the violation of conduct rules, the
“Authorities” are violating statutory provisions. The “Authorities” know that their
action will be considerably weakened if they order suspensions or initiate formal
enquiries without holding preliminary enquiries. Yet they do it. The courts of law
may quash the enquiry, but it needs money and resources. Sadly enough, no
action is ordered against the “Authorities” if they violate laws when they conduct
disciplinary proceedings. This makes the “Authorities” to do anything they want to
do with considerable amount of immunity. “When serious allegations of
misconduct are imputed against a civil servant and the disciplinary authority is of
opinion after some preliminary enquiries that the circumstances of the case justify
further investigation to be made before definite charges can be framed, it would not
be improper to suspend the officer”16. But, if the disciplinary authority does not
conduct a preliminary enquiry, what is the alternate remedy? Ultimately, the
suspended officer may win the case, but what about the sufferings he underwent?
So long as, there is no provision for victimological compensation for the damages
he sustained, the provisions of law for the conduct of preliminary enquiry are likely
to be violated.

PROLONGING THE INQUIRY

There is no time limit prescribed for the completion of the inquiry. There are
cases in which the enquiry is continued for several months. The average time is
between 6 months to 3 years. Some employees and authorities think that the
enquiry can be delayed to any extent after the reinstatement of the suspended
employees. As a result, the enquiry is virtually dead in many cases where the
delinquent is reinstated in service.

In some departments, an order is issued for the conduct of the enquiry and
afterwards, nothing may be done to proceed further in the matter and to pass final
orders in the case. An orders for an enquiry causes mental disturbance and delay
in talking further steps adds further to the mental agony. Some employees in such
instances rush to courts and obtain a directive to complete the enquiry within a
specified time. This involves expenditure and in some cases, the money spent to
get such directives makes the “Authorities” happy. Allegations are there that some
authorities delay the proceedings just for making the delinquent to spend money
for litigations. If the allegation is true to the least, it is indeed unjust and cruel.
The Authorities ought to know that: “Disciplinary proceedings can be said to be
started against an officer when complaints about his integrity or honesty are
entertained and followed by a preliminary enquiry into them culminating in the
satisfaction of the government that a prima facie case has been made out against
him for the framing of charges”17. Until recently, a number of orders were found to
be issued for conducting disciplinary enquiries against officers just on the even of
the departmental promotion committee being conveyed. It was with a diabolic
intention to overlook certain disfavoured officers in promotions saying that
“disciplinary proceedings” is pending against the officer. Recently, the court rules
that an order to conduct a departmental enquiry by itself cannot be the sole
ground for not considering employees for promotions. The court further observed
that “a disciplinary enquiry is said have been commenced only when the memo of
charges has been issued”. After this, the injustice of not promoting employees
before the issue of the memo of charges was stopped.

FRAMING OF CHARGES

Many inquiry officers do not know how to frame charges for departmental
inquiries. They have no learning, no legal mind or judicious attitude to frame
charges in a proper way. They cannot be blamed for it as many of them are not
used to it. The ingredients in a charges, the precise way it must be drafted, the
scientific manner it must be brought out etc. are unknown to many. Manual For
Disciplinary Proceedings lays down that – “The following points should be
specifically borne in mind in framing charges –

(1) The charge should be brief, pointed and couched in clear terms without any
vagueness. The date of occurrence of incidents and time, wherever
applicable, should always find a place in the charge.

(2) The charge should be logically from the nature of the allegations made.

(3) A full and clear statement of allegations on which each charge is based,
together with any other circumstances which it proposes to take into
consideration in passing orders in the matter should be appended”.

This may show that the framing of charges is a highly technical job and t needs
adequate schooling and expertise. As it is, more often than not, the charge is
initially drafted by the clerical staff and then it is got approved by the appropriate
authority. As the appropriate authority is equally ignorant and lacks knowledge, in
many instances, the charges to not satisfy the legal requirements. In Narain Singh
V. State of Uttar Pradesh, it has been laid down: “The charges must be specific and
precise and should convey to the delinquent official in the clearest possible term
the act of misconduct levelled against him. This can be given either by giving the
material particulars of the specific act of misconduct in the charge itself or in the
statement of allegations appended thereto.”18

Some authorities prepare the charges even without mentioning the date and
time of the alleged misconduct. The callous indifference in framing the charges is
adversely commenced by the courts. In one instance, the Supreme Court observed:
“The charge-sheet did not give particulars with regard to the date and time of the
alleged incident. The copies of the statement of witnesses recorded during the
preliminary enquiry were not furnished to the delinquent. These prejudiced the
employee in the matter of his defence. Hence, the dismissal order was held to be
illegal”19. A vague and indefinite charge means that reasonable opportunity was not
given to the employee to defend himself 20. The charge should be in the form of
allegations. If it indicates that the delinquent is guilty of the alleged misconduct, it
means that the same is issued by a closed mind by the disciplinary authority. In
such instances, the charge is not sustainable – holds the court. 21 The failure to
supply statement of allegations and the supply of vague and indefinite charges
would amount to denial or reasonable opportunity.22

Of source, the charges issued to the government employee can be amended. The
Rule is: “The authority conducting the inquiry, may, if it deems necessary, during
the course of the inquiry, add to, amend, alter or modify the charges framed
against the accused government servant. If this is done, the accused shall be
required to submit within a reasonable time to be specified in that behalf, a further
written statement in his defence, should, he desire to do so. The inquiry authority
may also permit the accused government servant to inspect and take extracts from
such official records as he may specify for purposed of preparing his defence
provided that such permission may be refused for reasons to be recorded in
writing”. In Paulose V. State of Kerala, it has been laid down that: “the charges
framed against a government servant can be amended even if the government
servant has retired from service and the disciplinary proceedings are continuing”. 23

ENQUIRY OFFICERS

In principle, the inquiry officers should be fair, honest, impartial and just. But,
in real situation one doubts very much whether or not many are not of such
category. As they belong to the same department to which the delinquent also
belongs, in some situations, the allegations are raised that the inquiry officer is not
honest, objective and neat in his dealings. Distrust is expressed and requests are
made for the change of the inquiry officers. Sometimes, they take into
consideration their personal knowledge about the delinquent and conduct the
enquiry in an unbecoming way. Of course, such attitude will surely vitiate the
inquiry. “Enquiry officer took into consideration his personal knowledge about the
petitioner while deciding as to whether the petitioner was guilty of the charges
levelled against him. The punishment imposed was illegal.” 24 In a department,
there exist many occasions for the inquiry officers to become prejudicial to the
delinquent. Their minds are contaminated by illegal influences, adverse opinions,
unfavourable comments, views and remarks made by the associates, superiors and
so on. Obliging subordinates always listen to what their superiors tell them to do in
a particular disciplinary inquiry. “The charge-sheet and the statement of
allegations furnished to the petition clearly showed that the disciplinary authority
started with the assumption that the petitioner was guilty of the charges framed
against him and that even before an enquiry was conducted, it was assumed that
the charges were provided against him. The punishment which was proposed to be
imposed upon the petitioner was also specified in the charge-sheet.” 25 In this case,
it was laid down that the disciplinary authority conducted the inquiry with a
biased mind.

STANDARD OF PROOF

Disciplinary inquiries are quasi-judicial 26 and the impact can be anything from
a warning to dismissal. Hence, there should be some standard of fairness and
reasonableness in all disciplinary inquiries. 27 However, one doubts very much
whether or not many inquiry officers can claim to possess such capacity to conduct
the inquiry in a quasi-judicious way.

Of course, an Inquiry officer is not a court. Yet, he is a Domestic Tribunal. As

such, they are not strictly bound to follow the rules of evidence as laid down in the
Indian Evidence Act 1872. Nevertheless, rules of natural justice should be followed
when arriving at conclusions.

CRIMINAL CASES AND DISCIPLINARY ACTIONS

There are occasions in which criminal cases and disciplinary actions may be
taken simultaneously. The case law is: “When criminal cases and disciplinary
proceedings are taken simultaneously on same set of facts, it is proper to stay the
disciplinary proceedings.”28The criminal proceedings taken will have an end when a
verdict is pronounced by a court of law. If the case ends in an honourable acquittal
and the accused is completely exonerated of the charges in a criminal case, it may
not be expedient to continue a departmental enquiry on the same charges or
grounds or evidence.29 In some instances, the department may not be prepared to
drop the inquiry proceedings even when the criminal case has ended in a clean
acquittal. Hence, they may frame charges against the delinquent on a different
count on which the court of law has not taken a decision. The argument is that
departmental action is for a misconduct, under the Government Servants’ Conduct
Rules whereas the criminal case is for an offence committed under the penal laws
of the Country. The courts of law too admit the argument and hence lay down:
“Simply because of an acquittal in a criminal case, the disciplinary proceedings
pending against an officer cannot be dropped even if the facts which led to the
criminal case and the facts which gave rise to the disciplinary proceedings are the
same.”30 Even here, the charge on which disciplinary enquiry is conducted should
not be one and the same. For, “where an employee is fully and honourably
acquitted by a criminal court, it would not be expedient or proper to continue
departmental proceedings against him on the same charges and on the same
evidence because usually the decision of a court trained in examining and
answering questions of law and facts should receive the utmost respect and should
be placed on a higher pedestal than the conclusions reached by an enquiry
officer.”31 The inquiry officers are not appellate authorities to a court of law and
therefore, there is no judicial justification in conducting the enquiry on an issue
which has been already decided by a court of law.

Usually, a preliminary enquiry may be conducted by the department and then

the authorities will wait for the decision of the court for further proceedings with
the inquiry. “If the case is of a grave nature which involves questions of fact or law,
which are not simple, it would be advisable for the employer to wait for the
decision of the trial court so that the defence of the employee in the criminal case
may not be prejudiced.”32

A criminal case may end in a conviction. “The power to dismiss a government

servant on the ground of conviction on a criminal charge has to be exercised fairly,
justly and reasonably.”33

PENALTIES AND COURTS

To punish an employee is easier than to fully exonerate him. For exonerating an

employee, one should find out more reasons and justifications. Hence, the general
attitude is to see that an officer under enquiry is punished first and then see that
he is exonerated on appeal. A study on punishments in disciplinary proceedings
may prove that many an enquiry ends in punishment at the first instance and then
it is quashed by the appellate authority. This procedure helps the authorities in
many ways and they are –
 1. The authority can claim that the action is taken on genuine grounds.

2. The authority can justify the action and thereby cause fear among other
employees about the possible consequences of misconducts of government
services
3. The authority can leave the “thinking process” to the punished employee so
much so that he may think for the appellate authority to decide on the
matter to his favour. However, the attitude of the authorities is not
favourably viewed by the employees. Of course, the disciplinary authority
has the discretion of impositioning any of the penalties. 34 But it should be
inflicted fairly and judiciously.

“Warning” is not considered to be a punishment in disciplinary proceedings.

But, in one case, the disciplinary authority, after giving a warning, directed that a
copy of the order be placed in the character roll of the delinqnent. The court
observed: “The circumstances indicated that the word “warning” used in the order
really imposed the penalty of censure.”35

There is a theory in criminology which says that “Man is basically bad until he
proves to be good”. In order to prove that someone is really good, he needs
compelling situations or factors which may be operating either from within or
outside the individual. Whatever that be, certain authorities take pleasure in
continuing with causing pain to the delinquent officers. They want to harass,
demoralize, victimize or humiliate employees who work under them. For instance,
a censure, ordinarily, need not be taken into account when promotions are
considered. Yet some authorities do so. In Mukuna Menon’s case, the court ruled:
“A punishment of censure by itself was not a ground for overlooking seniority in
the matter of promotions.”36

WITHHOLDING OF INCREMENTS

This is an often-resorted strategy in disciplinary proceedings. It seems that the

authorities become mentally disturbed if they do not withhold, one or two or three
increments, atleast temporarily, in many cases, It gives them, no doubt, some
pleasure. Many employees tolerate it thinking that “O.K., one or two increments for
a short period”. Afterall, their pay is not very much affected if at all their
increments are withheld temporarily and as such many lesser morals do not even
make appeals or move courts of law in such instances. They suffer and suffer it
blaming the authority all throughout their service and even afterwards. Some
authorities withhold increments lightly and liberally and in the case of Zile Singh,
the court observed: “On the ground that the delinquent was convicted, the
department imposed on him a penalty of stoppage of three increments with
cumulative effect without conducting an enquiry or affording any opportunity. This
is illegal”37

Surprisingly enough, some authorities withhold increments with retrospective

effect. What is the legal justification in doing so? Just because somebody – an
ignorant personality – is an authority, it does not mean that he can pass an order
of penalty in the way he likes. The courts disfavour this attitude. “The penalty of
withholding increments, cannot be imposed with retrospective effect.” 38 Likewise,
withholding of increments (two) with cumulative effect was considered to be a
major penalty.39

WITHHOLDING PROMOTIONS

Withholding the promotion gives some sort of satisfaction not only to the
juniors who are to be promoted but also to the authority who intends to inflict
penalty – say some offices who are just overlooked by the departmental promotion
committee. Even warning given in a disciplinary enquiry was considered as a
sufficient ground for withholding promotions! The courts have time and again ruled
out that the warning could not be used as ground for withholding promotions 40. Yet
the authorities do so and the impact is demoralization among the employees. Again
certain authorities, it may be reiterated, withhold promotions with retrospective
effect. Again, there are court rulings stating that the procedure is illegal and
against law.

RECOVERY FROM PAY

Recovery from the pay is understandable, but from the gratuity is not right.
Hence the court stated: “The penalty permissible under the rule is only recovery
from the pay. Recovery from gratuity is not permissible.”41

In cases wherein loss has been caused to the Government, the amount of loss
should be recovered. This is more so in vehicular accident caused by the
negligence of the driver. In one instance, the authority ordered for the recovery of
the whole amount allowed by the Motor Accident Claims Tribunal from the pay of
the driver. In another case, only 50% of the amount so paid was recovered. In a
third instance, only Rs.3,000/- was ordered to be recovered from the driver. There
is a lot of discretion in the decision making, but the discretion used is not always
judicious. Therefore, there are allegations that the discretion used is arbitrary and
therefore should be controlled by definite directions as to the use of discretion in
the recovery of loss from the employees.

REDUCTION OF RANK

The rulings of the courts in this area are –

1. Reduction in rank means reduction from a higher to a lower rank or post 42.

2. The power of reversion should not be used for a collateral or legally

extraneous purpose43.

3. Losing some places in the seniority list in the same cadre does not amount to
reduction in rank. Reduction in rank may be brought about in the grab of
reversion44.

4. Reversion order cannot be passed with retrospective effect45.

5. A person initially recruited to a higher time-scale, grade or service or post

cannot be reduced by way of punishment to a post in a lower time scale,
grade, service or post which he never held before46.

6. The penalty of reduction in rank of a government servant initially recruited

to a higher post to a lower post virtually amounts to his removal from the
higher post and the substitution of his recruitment to a lower post, affecting
the policy of recruitment itself47.

There is a view that the reduction in rank should be resorted to the rarest of
rare cases. It has very damaging psychological impact and social humiliation so
long as the government servant works in the same department, he feels “less”
infront of others. This has very high demoralizing effect on the punished employee.
COMPULSORY RETIREMENT, REMOVAL FROM SERVICE, DISMISSAL,
TERMINATION OF SERVICE

The rulings are -

1. A public servant can be retired compulsorily only in public interest. 48

2. The mere passing of an order of removal would not be effective unless it is

published and communicated to the officer concerned.49

3. An order of discharge takes effect only when it leaves the hands of the
employer or only when it is dispatched. 50

4. An order of dismissal can be passed with retrospective effect from the date of
suspension.51

5. Suspension comes to an end by an order of dismissal. 52

6. The mere passing of an order of dismissal is not effective unless it is

published and communicated to the officer concerned.53

7. When an order of dismissal or removal from service is sent out, it is effective

as far as the authorities are concerned. But, for the government servant, it
becomes effective only when he is appraised of it either by oral
communication or by actual service of it upon him. 54

8. Termination of service as a punitive measure without complying with the

provisions in Article 311 of the Constitution is illegal. 55

A scrutiny of the rulings from the courts may show that -

1. The authorities have little or no knowledge in the proper conduct of

disciplinary inquiries.

2. The officer under enquiry is put into several hardships to get justice in
disciplinary proceedings.
 3. One and the same defects are shown repeatedly in many judgements and the
authorities are in blissful ignorance of many of the judicial pronouncements
in disciplinary matters.

4. Number of disciplinary actions are taken more against lower level

functionaries, but the number of officers going to the courts are found more
among the middle or higher levels of administration.

Inquiries against higher levels are conducted by still higher cadres in

administrative hierarchy. Likewise, enquiries against the lower or lowest levels are
conducted by officers in the middle strata of the official hierarchy. If the courts find
mistakes even in inquiries conducted by higher echelons, it goes without saying
that the situation is worse when it is applied to lower or lowest levels of
governmental administration. Certainly, miscarriage of justice would be the result.
Then we need positive strategies to rectify and remedy the state of affairs and the
chapter that follows is all about remedying the situation in the administration of
disciplinary in justice.
 CHAPTER – X
IMPROVING THE SYSTEM
I. Policing the government servants is necessary. Everybody may admit that
disciplining the employees is essential for any organization to function
properly, efficiently and effectively. But how? Today, one may find that a
number of departmental inquiries are initiated without any useful
purpose being served. Punishing the employees for their alleged
misconduct is necessary, but the objectives of such punishment should
be not only to correct the erring or erred employees but also for the
welfare and smooth functioning of the department. One wonders whether
or not the objectives are ever achieved by the disciplinary proceedings
initiated and concluded.

II. In reality, the disciplinary proceedings classifies the employees into two
categories – namely, the privileged and the unprivileged. Class IV and
Class III employees in Government service can become always the victims
of disciplinary proceedings. The appointing authority and the disciplinary
authority can and do always initiate actions against the subordinate
ranks so much so that they are found at times misusing their power and
authority. The victims of departmental actions and many others become
sceptic about the honesty of their superior authorities in holding inquiries
against them. A disciplinary authority asking someone to spy on an
employee with an intention to initiate disciplinary action, another writing
anonymous letters to himself against his subordinate and then ordering
for an enquiry, a third one digging out a misconduct alleged to have been
committed by an employee about eight years ago and thereafter initiating
departmental action, a fourth one provoking a subordinate to misbehave
and a fifth one instigating an employee to violate conduct rules etc. show
the perverted way the so called “Authorities” exercise their privileges
against the unprivileged or underprivileged in government service. If these
allegations are true, doubtlessly, they prove the darker sides of
 governmental administration – show the petty mindedness of the so
named authorities – manifest rotten aspects of disciplinary actions. This
sort of misuse of authority is visible more among the lower level
disciplinary / appointing authorities. Departmental actions ordered by
the Government are comparatively smaller in number than the dame
ordered by the heads of department or authorities working under them.
Employees are suspended and disciplinary actions are initiated even
without conducting preliminary enquiries and they show that the
authority is misused. If at all some preliminary enquiries are conducted,
they are done in a ritualistic fashion just to make them only as masks to
conduct detailed enquiries. Initiating disciplinary proceedings without
conducting preliminary enquiries – that is to be considered as a violation
of the statutory provisions – should be treated as a misconduct on the
part of the authorities calling for disciplinary action against the
authorities themselves. If it is proved that the employees were harassed
and victimized by such misuse of power and violation of statutes, then
they must be entitled to get victimological compensation which should be
levied from the authorities themselves. This only can remedy the defects
in the system.

III. “Authority” means an “individual” with his strengths and weaknesses.

Jealousy, vengeance, emenity, disliking, ego-conflicts, personality clashes,
inferiority complex, inflated feelings, animosity, parochialism,
transference of aggression etc. are found to be some of the major causes
behind many disciplinary inquiries taken against the employees. The
“authority” and the “employees” work together and whenever their
relationship is strained, the authority takes or can initiate disciplinary
proceedings against the subordinates. The subordinate here is
handicapped and cannot do anything much as he is not privileged to take
action against his disciplinary / appointing authority. Ego-clashes can
originate from anything and research studies show that a new sun glass,
a costly wrist-watch, a gold-chain, a new car better than the same of the
authorities have caused interpersonal rivalries and displeasure. “How can
my subordinate have such costly luxuries when I cannot” is the approach
some of the petty minded “small” supervisory staff take against their
subordinate. The supervisory officers who have better accessibility to the
disciplinary/appointing authorities can easily see that their subordinates
are put into trouble by obtaining an order for conducting an enquiry for
an alleged misconduct and they do it in the pretext of enforcing better
discipline in a department. This can be stopped only if the
 disciplinary/appointing authorities have supervision over the supervisory
cadres working under them. Justice should be done and it should appear
to others that justice has been done in every inquiry ordered by the
disciplinary/appointing authority.
IV. There is no dearth of research studies and journalistic reports to show
that corruption, bribery, hoarding of files, partiality, favouritism etc. are
rampant in government services. They see ‘mafia operations’ in some
areas of governmental administration. Strangely enough and surprisingly,
one may see that there takes place no serious enquiries on these
allegations and at the same time, he sees disciplinary proceedings is
initiated for insubordination, impertinence and dereliction of duty etc. No
one except the authority may know what he means by insubordination
and impertinence etc. as the definition given by them to such words may
be something ununderstandable to the dominant culture from where the
accused delinquent may be hailing.

V. Nevertheless, it does not mean that all cases of disciplinary proceedings

originate from causes which are not genuine. There are a number of
instances in which the initiation of departmental action may be inevitable.
But, most unfortunately, such enquiries may be entrusted to officials who
have little or no knowledge in the conduct of disciplinary proceedings. The
result will be that they commit a lot of procedural irregularities and
overlooking of the principles of natural justice. Consequently, they do not
and cannot impose penalties on the delinquents. If at all, they find them
out to be guilty, they get exoneration either in the appeal or in a litigation
that they file in the courts of law. Educating the officials to conduct the
enquiry in a legal and just manner by following the procedural requisites
is the only way to remedy the defects.

VI. Government Servants’ Conduct rules speak a lot about how should the
government servants conduct themselves. But, one may laugh at some of
the rules and conduct norms given in the Conduct Rules. It is high time
to revise the Conduct Rules and there is a thinking now that the Rules
should be substituted by another which define misconducts in clear
terms and prescribe punishments for each misconduct. Like the penal
laws, there must be a Government Servants’ Conduct Rules which define
misconducts and prescribe punishments. What is now done is to make
patch works in the Conduct Rules and thereby complicate the issue. Such
a Conduct Rule should contain provisions as to what should not be done
by the government servants – this is more important than what is to be
 done. Conduct is a concept and misconduct is a reality. Reality should be
defined and penalty should be prescribed.

VII. Classification, Control and Appeal Rules tell about two types of penalties
– major and minor and the Manual For Disciplinary Proceedings gives two
kinds of procedures for them. But, the Government Servant’s Conduct
Rules do not speak anything about major or minor misconducts. As a
result, the ‘Authorities’ decide whether or not a particular misconduct
should be dealt with by an enquiry for imposing minor penalty or for
inflicting major penalty. This means that the “Authority” enjoys a lot of
discretionary powers and the allegation is that the “Authority” misuses
them on several considerations which are objectionable. The suggested
remedy is to classify misconducts into major and minor and then
prescribe penalty for each one. Better justice can be ensured if the
discretion is controlled.

VIII. Disciplinary enquiries are quasi-judicial. As such they should be

conducted by officials who have quasi-judicial mind. Miserably enough, it
is seen that some of the inquiry officers do not know the meaning and
ramification of the word “quasi-judicial”. This is a deplorable state of
affairs and it can be remedied if the inquiry is entrusted to officers who
have some knowledge in law, procedure and evidence – taking.
Appreciation of evidence is something which laymen in law cannot
understand.

IX. There are organizations where the inquiry is conducted only by qualified
people or by advocates. This is done just to ensure impartiality and
justness in decision making. There is a view that all departmental
enquiries should be conducted by properly qualified people who do not
belong to the department to which the delinquent belong. There is
another view that the enquiry should be conducted only by lawyers. This
may be a hard proposition to accept and therefore the via media is to give
proper training and instructions to a set of officers to function as enquiry
officers. In other words, there should be a separate unit in all
departments and it should consist of properly trained officers to function
as Domestic Tribunals to hold-quasi-judicial inquiries.

X. Presenting-cum-prosecuting officers are appointed and likewise, there will

be a defending officer in some enquiries. At present, another government
servant is appointed to function as presenting-cum-prosecuting officer. In
 such instances, the delinquent will be allowed to appoint again another
government employee to function as the defending officer. The net resultis
that all these officers including the inquiry officer are not well versed in
law and legal proceedings. As a consequence, they conduct the enquiry in
a haphazard manner and the allegation is that the delinquent does not
get justice in the proper way. The situation can be remedied if provision is
made in the Manual for the appearance of legally qualified officers as
presenting-cum-prosecuting officers or as defending officers in
departmental inquiries. Since it is a domestic tribunal, even lawyers
should be permitted to argue for or against the accused.

XI. Domestic Tribunals, disciplinary authority, appointing authority and so

on enjoy very vast powers which are more than what the judicial courts
have. They can dismiss an employee or terminate him if they feel it
necessary. The suit against their decision lies only to the High Courts or
to the Administrative Tribunals. This being the case, it is dangerous to
allow them to conduct the quasi-judicial functions in the way they do
them at present. The suggestion is to see that officers who are qualified in
law and competent in appreciating legal procedure/evidence only should
be appointed to function as the domestic tribunals.

XII. Many in many departments do not know how to draft a charge. They do it
in an unscientific way and therefore there is the need to get every charges
approved by a legal expert. Neither the inquiry officer nor the staff
assisting him is well versed in the framing of charge/s. They prepare a
memo of charges, but more often than not, it will be vague and not
precise. Framing the charge basing on the evidence collected is a
technical job and it should be taught to inquiry officers and disciplinary
authority the way and methods by which they can prepare the charges in
disciplinary proceedings.

XIII. What is natural justice and what are the principles of natural justice?
What is meant by providing of reasonable opportunity? What is
examination of witnesses and how should it be conducted? How to cross-
examine witnesses and how can one frame leading questions in a cross-
examination? All these and similar matters are alien to many inquiry
officers and yet they hold inquiries even by asking incriminating
questions to the accused employee. The inquiry officers insist to get
responses to their incriminating questions in the way they want and if
they do not get the answers in the desired manner, they get angry. This
 shows lack of knowledge in the subject coupled with lack of experience
and expertise in sitting and listening to domestic inquiries. If
departmental inquiries are intended to ensure administrative justice, then
the system of appointing anybody basing on the position he occupies in
administrative hierarchy should be fully and totally avoided.

XIV. Once a disciplinary enquiry is ordered, it can be prolonged to several

years if the inquiry officer so desires. There is no rule prescribing the time
limits in each step to be completed during an enquiry procedure or if at
all there is any such rule prescribing limitation of time, nobody seems to
be serious about it. As a result, the enquiry is dragged and dragged and
consequently the delinquent employee becomes dispirited. This should be
stopped and for it, rules should be framed to complete the enquiry
procedure within a time-frame. Failure to complete the inquiry within the
time-frame should be made a ground for closing the inquiry by the
disciplinary/appointing authority. If time-limit can be fixed for giving
written statement of defence, filing of the names of defence witness or
citing of defence documents, preferring of appeals and thereby making the
accused to act speedily, the same principle should be applied in the case
of inquiry officers to speed up the enquiry proceedings. Maximum time for
completion of a disciplinary inquiry should be six months from the date of
the order for holding the inquiry.

XV. Suspending the employee saying that it is not a punishment has become
an oft-resorted strategy. And this is done even without conducting any
preliminary inquiries into the allegations. Studies show that a number of
suspensions are malafide and the impact is unimaginable. Every
suspension has its penal significance-socially, financially psychologically
and under many other counts. Statutorily, a review should be conducted
within six months after the date of suspension. It is seen that the
provision is violated and the suspended continue to remain under
suspension suffering the evil impacts. This sort of callous approach and
culpable indifference should be stopped. Provisions should be made for
victimological compensations in such situations.

XVI. Subsistence allowance is not ordered immediately after suspensions. It

causes financial crisis for the suspended. There are institutions and
organisations in which full salary is allowed in cases in which the
suspended remains under suspension beyond six months. The same
principle should be followed in government departments. Or better,
 provision should be made in law in such a way that the suspended gets
his full pay and allowances during the period under suspension and any
cut in his salary should be recovered once the inquiry is completed
finding the delinquent to be guilty. At present, the law in some States
sanctions subsistence allowance at a prescribed per cent and after
sometime, it is further reduced causing further mental and financial crisis
is to the employee. This is indeed cruel and should not be allowed.

XVII. Litigations are pending before the courts for quashing the suspension
order and for reinstatement in service. Whenever such petitions are
moved before the courts, necessarily the respondents in the case have to
file their counter and it is seen that the filing of the counter is
purposefully delayed so much so that the respondents cause further delay
in the disposal of petitions before the courts of law. This is viewed as
vindictiveness and calculated attempts to cause further misery to the
accused under inquiry. This attitude should be discouraged by taking
remedial steps to stop the malady.

XVIII. Orders suspending the employees may contain strict directions to

complete the enquiry proceedings within a specified time. In many
occasions, the directions of the appointing / disciplinary authority are not
honoured. Resultantly, the accused officer in the inquiry rushes to the
courts to get a direction from the courts for the finalization of the inquiry
proceedings within a specified time. Even here, the
appointing/disciplinary authority requests the courts–often without
justifiable reasons-to extend the period and thus the inquiry proceedings
is further delayed. The fact that the accused government employees rush
to the courts for quashing the order or for getting a direction to complete
the proceedings within the specified time irritates the “Authorities” so
much so that they take even antagonistic attitude to the officer under
inquiry. Approaching the courts of law is a Constitutional remedy to the
employees and getting irritated to the employees having recourse to
courts of law shows lack of respect to the law and legal safeguards.
Inculcation of ethical and legal sense among the authorities is the only
remedy suggested here.

XIX. For the employees of the Central Government, there exist Administrative
Tribunals. But, in many States in India, there is no Administrative
Tribunal established for the redressal of grievances for the State
Government employees. This makes them to approach the High Courts of
 Judicature with Writ petitions. The procedure is expensive and invites
delay in the matter of disposing the petitions filed before the High Courts.
Wherever State Administrative Tribunals are not functioning, it is highly
necessary that the same may be established without delay so that
remedies to administrative injustice are made available to the employees
at an easy reach with reduced expenditure.

XX. Even when the memo of charges is served on the delinquent employee-
sometimes on flimsy and flippant grounds-and even after a statement of
defence is filed, the inquiry authority does not seem to examine it
carefully to see whether or not all the points in the memo of charges have
been duly met. The law lays down that the inquiry officer should examine
whether there is any necessity to conduct an oral inquiry when he
receives the initial statement of defence. If he finds that there is no
necessity to hold the inquiry, he can request for dropping the inquiry at
that stage of the inquiry. They are afraid of the disciplinary / appointing
authority so much so that they continue to conduct the enquiry even
when they are convinced that the conduct of the inquiry is not going to be
of any use at all. It is sheer waste of time to do so. This being the attitude,
the general tendency among the accused seems to be just deny all that
allegations and then keep silence. It shows the distrust of the employees
in the fair and just sense of justice among the inquiry officers. This calls
for the creation of an atmosphere in which the delinquent employees get
the required confidence and trust in the sense of justice among the
inquiry officers.

XXI. Some inquiry officers think that it is below their dignity to record the
proceedings by their hand. They, therefore, deploy their office staff to do
the same. On further study, it is understood that the enquiry officers who
are diffident in conducting the inquiry get the assistance from their office
staff so that they do not commit mistakes when they conduct the inquiry.
They fail to understand that the atmosphere thus created in the room of
the Domestic Tribunal causes psychological hindrances and
embarrassment to the officers under inquiry. The inquiry officers,
therefore, should be fair enough to provide an atmosphere in which the
delinquent officer gets reasonable opportunity to defend his case without
embarrassments, barrier and hindrances.

XXII. In any departmental inquiry, the officer under inquiry will be subordinate
to the officer conducting the inquiry. Consciously or unconsciously, the
 delinquent officer feels handicapped to defend his case in a vehement
manner. In many cases, there may not be any defending officer appointed
on his behalf. In such situations, it may be all the more difficult for him
to raise objections during the conduct of the enquiry. Many accused
employee may not have sufficient knowledge in law, legal formalities and
procedures. This being the case, opportunities for defending his case in
an atmosphere conducive for the proper defending of the case becomes
essential. Therefore, in all cases of disciplinary inquiries, appointment of
properly qualified defending officers should be made mandatory. In States
where this rule is not made mandatory, the law should be amended. In
inquiries conducted against Central Government employees, appointment
of presenting cum prosecuting officers and also defending officers is made
mandatory. The same principle should be adopted even in all cases
applicable to State Government employees.

XXIII. Some inquiry officers do not seem to know the difference between
“marking a prosecution document” and “proving a prosecution document”
during the conduct of disciplinary inquiries. The impact is that they try to
prove the prosecution document even at the beginning of the inquiry-i.e.,
before the prosecution evidence is taken-by raising incriminating
questions to the accused themselves. They are yet to know that a
prosecution documents can be proved only by a prosecution witness and
not by the accused. Such a faulty procedure will surely vitiate the inquiry
at the beginning of the proceedings and there will emerge a situation in
which the inquiry officers will not be in a position to file the answers to
the incriminating questions either in the category of prosecution
evidence/documents or in the category of defence evidence/documents, at
that stage of the inquiry. The procedure is against law and is a calculated
attempt to elicit incriminating evidence from the accused even before
letting him know the entire evidence against him. The procedure, if
adopted by the inquiry officers, shows their lack of knowledge in law and
procedure and this defect can be rectified only by proper training and
inculcation of knowledge in the subject.

XXIV. Many inquiry officers produce only photocopies of the prosecution

documents proposed to be relied upon for proving the misconduct. They
fail to understand and, sometimes refuse to appreciate the fact that the
photocopies-unless they are duly attested by competent people-are not
accepted as evidence in disciplinary proceedings. Consequently, they
mark such photocopies as prosecution documents and the procedure
 certainly vitiates the inquiry. They ought to have verified the worth of the
prosecution documents at the time of preparing the memo of
charges/statement of allegations and if they cannot find the original of
the prosecution documents, they should not rely on such photocopies to
draft the memo of charges/statement of allegations. The ignorance can be
removed only if they are properly educated to do things in the proper way
and as per the law.

XXV. At the beginning of the proceedings, the prosecution witnesses are

examined. In inquires in which no presenting-cum-prosecution officers
are appointed, it becomes difficult, rather impossible, for conducting
proper examination of prosecution witnesses. The rule says “Except where
a person is nominated by the Disciplinary authority to present the case in
support of the charges before the inquiring authority, it shall be the
responsibility of the Inquiring authority, to question and bring out in
evidence, all points relevant to the inquiry on which a prosecution witness
may be able to testify, with reference to the charge(s), statement of
allegations and any new fact which may have come to light during the
course of the inquiry”. The problem here is that many inquiring officers do
not know the art of examinations and the differences between
examination and cross-examination. They cannot be blamed for their
inefficiency and ignorance as they are not used to it in their service. As a
result they are found to raise questions which suggest the answers-i.e.,
leading questions-or questions which are of such a nature that the
delinquent feel that they are biased against them. They also understand
that the enquiry officers are out to catch them in the inquiry by eliciting
answers which are detrimental to the interest of the officers under
inquiry. In many cases, the delinquent officers are not found to raise
questions to the inquiring authority as they do not know the after effect of
such objections in case the objections cause irritation in the inquring
authority. Over and above, the less-informed delinquent officers do not
know what to object and how to object the questions. In order to avoid
this embarrassing situation and to ensure better atmosphere for proper
administration of justice, it is advisable to appoint presenting-cum-
prosecuting officers and defending officers in all formal enquiries in which
witnesses are examined and cross-examined.

XXVI. Some inquiry officers show an overenthusiasm to prove the prosecution

documents by producing the photocopies of the same to the prosecution
witnesses. This is not permissible in law. The delinquent officers have a
 right to see the originals or the attested copies of the photocopies of the
documents. The delinquent officers can request for other documents
(other than what are mentioned under the statement of allegations) for
the purpose of cross-examination. In all fairness, the originals of such
documents so requested by the delinquents should be made available
unless the inquiry-officer feels that they are irrelevant or beyond his
control for the production. If time is requested by the delinquent officers
(their representatives) for studying the documents for cross-examination,
the inquiry officer should permit the requests so made. It is necessary as,
otherwise, the delinquent may subsequently make claims that they were
denied of reasonable opportunity to defend their case properly. Some
Inquiry officers refuse to show the documents requested for and to allow
time to prepare (in cases in which documents are given) for the cross-
examination. This they do because they are either adamant in punishing
the accused or because they do not know fairness and justness in inquiry
proceedings. The adamant approach, if there is, is not a just attitude and
therefore the inquiry officers should be informed of fair-play and
objectives in disciplinary inquiries.

XXVII. Of course, the inquiring officers can make commands to the officers
under inquiry. This does not mean that the delinquent officers should be
denied of reasonable opportunity to furnish the list of witnesses and
defence documents. Instances have been reported that the inquiring
authority makes demands and command the delinquent to provide with
the list of defence witnesses and documents immediately after the
prosecution evidence is taken. This is very cruel and the rule says that
reasonable time should be give to the delinquent to prepare the list. The
reasonable time is said to be 15 days and reduction of the period to no
time or two days or five days etc. cannot be admitted. Since the Manual
For Disciplinary Proceedings does not clearly specify 15 days for the
purpose, some inquiry officers seem to use their discretion to cut down
the period. Necessary amendments in the rule should be made specifying
15 days as reasonable time for the purpose and it is to ensure that
adequate opportunities are not denied to the delinquent officers to furnish
the list of witnesses and documents.

XXVIII. Cases in which presenting-cum-prosecuting officers are not appointed,

the rule in the Manual For Disciplinary Proceedings applicable in some
States says that the inquiry officer can himself cross-examine the defence
witnesses. Nevertheless the rulings of the courts of law are categoric to
 state that such a procedure is violative of the principles of natural justice
and will vitiate the inquiry. Inquiry officers who are not aware of this
ruling may cross-examine defence witnesses and subsequently may face
difficulties. In order to avoid this situation, it is safer to appoint
presenting-cum-prosecuting officers in all cases of disciplinary inquiries.
If police officers who are well versed in law and procedure and appointed
as presenting-cum-prosecuting officers, the delinquent has a right to get
the services of a legal practitioner to defend his case. Again, if police
officers knowing the law and procedure are appointed as enquiry officers,
there too the delinquent officer can employee a legal practitioner to defend
his case even when presenting-cum-prosecuting officer is not appointed.

XXIX. Many inquiry officers are not aware of the rulings of the courts of law-
including the Supreme Court-and yet they hold the inquiry without
knowing the latest rulings in the matter. As lawyers are not appointed to
enlighten the inquiry officer, the entire procedure takes place in blissful
ignorance of the rulings. If and when the rulings are produced by the lay
accused in law, the inquiry officer becomes confused and conveniently he
forgets the rulings thus brought into the inquiry. At every time such
rulings are produced, the inquiry officers require legal consultation with
experts and it may not be readily forthcoming owing to dearth of legal
consultants in many departments. The position becomes worse whenever
the inquiries are conducted by lower level functionaries in a department
and becomes still worse whenever the inquires are conducted by officers
who have nothing to do with law. That fact is that the inquiry officers in
almost all departments-except the police or other departments intended
for law enforcement-are fully ignorant about how they should appreciate
court rulings on some points in disciplinary proceedings. The situation
can be improved upon if and only if legally qualified personnel are
appointed as inquiry officers in all departments. It is advisable to have a
separate department consisting of legally qualified officers to conduct
disciplinary inquiries pertaining to all categories of officers belonging to
all departments.

XXX. Some inquiry officers entertain a false notion that their capacity as
inquiry officers will be accepted and recognised only if they see that the
charge/s against the delinquent is (are) proved and some punishment is
inflicted. Such officers are doubtlessly said to be showing disrespect to
law, justice and truth in disciplinary inquires. They give more importance
to their ego-feelings or projections than to the truth in an inquiry. They
 also do so partly because they want to justify their position by showing
that they framed the charge(s) and got it (them) approved and they did so
on legally valid grounds. If they are able to prove, then they feel that they
are successful in their job. Otherwise, they feel bad and unsuccessful in
their job. “If the delinquent officers feel unhappy about the decisions of
the inquiry officers let them make appeals to higher authorities”-this
seems to be the attitude of some enquiry officers. In appeals, the appellate
authority takes a decision favourably or unfavourably to the appellant. If
the decision is favourably or unfavourably to the appellant. If the decision
is favourable to the appellant, the appellate authority has to pass
stricture against the inquiry officer. The appellate authority does not do
so and resultantly, the enquiry officers feel that they can do anything they
want. They are not afraid of anybody. They forget to understand that their
unjust decisions make the accused officers to suffer under many counts
and they are, in that way, harassed and victimized. There is a suggestion
which says that the victims of departmental actions should get
victimological compensation in case they are exonerated in appeals or
reviews. Of course, if the matter is taken to the court, the inquiry officers,
disciplinary/appointing authorities may get strictures and they do not
mean that departmental action will invariably be taken against such
officers against whom stricture have been passed by the judiciary.
Provision in law for victimological compensation is the only relief or
remedy here.

XXXI. “How to punish a delinquent employee?” – is a science and there are

many penological theories about it. Most of the inquiry officers,
disciplinary authorities, appointing authorities do not possess any
knowledge in the subject so much so that they start inflicting
punishments on the delinquent by applying individualistic scales and
self-made theories about the objectives of punishments. They, in the
meantime, as the allegation goes, becomes susceptible to influence and
introductions and if they work well, the punishments may be reduced or
quashed. So long as the Government Servants’ Conduct Rules do not
prescribe specific penalties to specific types of misconducts, the
punishing authority can inflict any sort of punishment to the delinquent.
The problem can be solved only if the discretion of the punishing
authority is cut down by enforcing special laws to the effect.

XXXII. One major defect that is seen in the Classification, Control and Appeal
Rules and also in the Manual for Disciplinary Proceedings is that the
 provisions of the law and rules are not amended in tune to the rulings
pronounced by the High Courts and the Supreme Court of India.
Resultantly, a well meaning inquiry officer who is ignorant of the rulings
is handicapped by his ignorance of the case-laws so much so that he
continues to administer disciplinary justice with the help of the
antiquated laws and procedures. No meaningful training or instruction is
imparted to the inquiring officers. There is the immediate necessity to
initiate special in-service training courses to all categories of inquiring
officers in the conduct of disciplinary proceedings.

XXXIII. This is a time when EQUAL JUSTICE TO CRIME-DOERS AND

VICTIMS is accepted. Justice to the government employee should be
ensured by holding disciplinary enquiries. This can be done by inflicting
punishment to him in proportion to the gravity of the misconduct.
Nevertheless, the administrative justice will not to be full and total unless
the innocent victims of disciplinary action are adequately compensated.
Hence, if the inquiry proves that an innocent government employee is
victimized by unjustifiable inquiries conducted against him or he is
placed under suspension on unreasonable grounds even without
conducting preliminary enquires or preliminary enquiries are conducted
by favoured officials with an intention to cause pain to the employee etc.,
then the employees should get adequate compensation from the
authorities responsible for the malafide inquiries, suspensions etc. The
laws must be amended to incorporate provisions for victimological
compensations. There are any number of judgements from the higher
judiciary to show that the victims of malicious enquires deserve
victimological compensations.

Finally, if may be stated that administrative injustice in disciplinary

proceedings will be a cause for disruption in official works. The laws and
procedures established for maintaining harmony, discipline and administrative
efficiency in government functionings should not be a cause for creating
disharmony, indiscipline and administrative inefficiency. The authorities-whatever
way they are functioning-should not be allowed to misuse their authority or to
exercise pseudo-authority upon their subordinates. The subordinates are as
important as the superiors and the efficiency of any government department
depends heavily upon the goodwill and willing co-operation of the employees
working in the department.
 APPENDIX – I
DISCIPLINARY PROCEEDINGS
AND ADMINISTRATIVE
INJUSTICE: A CASE STUDY
NOTE:

I. This case study, taken from the police department, relates to an incident
that happened in 1988. The case study has been done on a departmental
inquiry in police department, because of the following reasons –

1. The Disciplinary Authority/Appointing Authority of the officer under

inquiry was the Government itself.

2. The Head of the Department, the Inquiring Authority, prosecution

witnesses and so on were police officers who knew the laws and
procedure more than others employed in other departments.

II. It may be specially noted that the incident is genuine, facts are true and
the dates, place and persons are fictitious. If any serving (in police
department) officials or retired officials (from police department) in India
feel that it is about them that the case study relates to, it is only
accidental. The case study writer has only academic interest when he
writes this case study.

THE BACKGROUND
 On 17-5-1988, a vehicle accident involving a police jeep took place. Mr. A., an
officer of the police department was learning motor vehicle driving when the
accident occurred. Mr. B was the police driver who was deployed for teaching Mr.
A. At the time when the vehicle accident happened, it was Mr. B who was driving
the vehicle. He was giving instructions as to what to do and how etc. to Mr. A
Immediately after the accident, Mr. B started weaping and requested Mr. A to own
the responsibility of having driven the vehicle. Mr. A was a civilian officer employed
in police department.

The police registered a case against Mr. A as the sole accused. Mr. A was only a
learner-driver and Mr. B was the teacher-driver. Yet, the case was investigated
against Mr. A and finally charge-sheeted in the court. The case ended in an
acquittal stating categorically that Mr. A was not the driver at the time when the
accident took place. It was a fatal accident. One died and another got injured. The
dependents of the deceased and also the injured filed claim petitions before the
Motor Accident Claims Tribunal.

The Motor Accident Claims Tribunals pronounced three judgements and all of
the Tribunals stated that it was one Mr. B who was driving the vehicle at the time
when the accident occurred. The Tribunals awarded compensation to the
dependents of the deceased and to injured. The Government paid the amount as
directed by the Tribunals.

Both-the criminal court and the MACTs-decided the issue on merit. There was
no appeals filed by the Government against any of the judgements. Thus the
judgements of the criminal court and of the Motor Accident claims Tribunals
became true, final and absolute. Everything was over by 8-7-1992 and the file was
closed. Everyone including the driver thought that “all is well that ends well”.

DISCIPLINARY PROCEEDINGS INITIATED

In 1994 (January), an officer by name Mr. C assumed the charge of the Director
General of Police in the State. He had enemity with Mr. D, another Director
General of Police who had just retired from service. It was, in a way, a career long
fight.

Mr. D and Mr. A were thick associates and Mr. C did not like it. He wanted to
transfer his vindictiveness and aggression towards Mr. D to Mr. A whom he wanted
to victimize. He considered Mr. A as the representative of Mr. D, his life-long enemy
and thus by victimizing Mr. A., he was deriving vicarious-aggressive-pleasure. As
Mr. C was the director general of police and Mr. A was a subordinate working in
police department he could successfully manage to victimize Mr. A.
DIGGING OF THE BURRIED FILE

Immediately after assuming the charge as the director general of police, he

digged up the buried file of the traffic accident in which Mr. A was the accused. He,
then wrote to the Government to initiate disciplinary action against Mr. A and in
that letter he misrepresented facts by suppressions and distortions.

Mr. E was a superintendent of police under whom Mr. A was working. The
director general police, Mr. C asked his superintendent (Mr. E.) to victimize Mr. A.
The instruction to Mr. E. was to cut Mr. A into size. The most obliging and obedient
superintendent literally followed the instruction from Mr. C and made a vain
attempt to get the support and co-operation of the deputy inspector general of
police, Mr. F under whom he and Mr. A worked. As Mr. F flatly refused to extend
his support, the superintendent decided to initiate the victimization process by
himself. He started his work by issuing memos after memos to Mr. A on silly and
simple matters. Many in police service commented this as a “memo epidemic”. By
this, he could create hostility between himself and Mr. A. The poor Mr. A suffered
the victimization with a lot of self restraint and the director general of police (Mr.
C.) enjoyed the cruel sadism with a diabolic mind. The ‘memo epidemic’ was
followed by cutting down small privileges enjoyed by Mr. A and it included
strategies intended to humiliate, demoralize and harass Mr. A. The strategies were
numerous and ultimately it reached a stage that Mr. E became fully and totally
inimical to Mr. A. The director general of police cashed the situation and wanted to
exploit it further. He saw to it that the superintendent wrote a letter to him with a
request to put Mr. A into further trouble. The conspiracy between the director
general of police and the superintendent of police finally took a diabolic step. They
together moved the Government with a request to place Mr. A under suspension.
For it they together digged the file concerning the traffic accident and pressured
the Government to put Mr. A under suspension. At last, their conspiracy found
result and thus Mr. A was placed under suspension on 12-4-1995 i.e., nearly after
7 years since the accident took place.

SUSPENSION AND AFTERWARDS

 The suspension order contained distorted facts and it further appointed an
inspector general of police to conduct the inquiry and finalize the proceedings
within three months since the date on which Mr. A was suspended from service.
After eighteen days, the director general of police retired from service on
superannuation. There was an inspector general of police in the unit where Mr. A
worked. But the inquiry was entrusted to an inspector general of police (Mr. G.)
who had nothing to do with Mr. A. As the talk in the police department goes, the
inquiry was purposefully entrusted to an inspector general of police who had
nothing to do with Mr. A with an evil mind. The said inspector general of police,
Mr. G. had very good relations with the director general of police and the
superintendent of police. The intention was to see that Mr. A is somehow punished
in the inquiry.

MEMO OF CHARGES AND STATEMENT OF ALLEGATIONS

No preliminary enquiry was conducted. There were the photocopies of two

letters purported to have been received by the superintendent of police and the
circle inspector of police, city traffic. The memo of charges was weak and vague; yet
it was prepared after consulting the p0hotocopies of the letter purported to have
been written by the accused in the case and received by the superintendent of
police and circle inspector of police.

ANALYSIS OF THE DISCIPLINARY ENQIRY

An analysis of the oral inquiry file may show that –

1. The oral inquiry related to an incident which has happened about seven
years ago and about which there were final, true and absolute judgements.
An abnormally delayed inquiry showed that administration of discipline or
justice was not the motive or objective of the so called “AUTHORITIES”.

2. Technically speaking, there may not be any legal bar in holding an oral
inquiry at an abnormally belated time. But, technical justification is not
what is meant by administrative justice. In A.P. Augustine V. Superintendent
of Post Offices, 1984 KLT 226, the law has been well laid down: “No fair and
effective enquiry can be conducted unless it commences within a reasonable
time after the incident. To call upon an employee to defend himself at this
 distance of time is probably to put him at considerable disadvantage and
thus deny the benefit of natural justice”. The officer under inquiry produced
the copy of the judgement before the inquiry officer as well as before the
disciplinary authority. But it was of no use to him as the “AUTHORITIES”
were not prepared to listen to him. They were adamant in holding the
inquiry.

3. As indicated earlier, no preliminary enquiry was conducted in this case. It

was a clear violation of the rules laid down in the Manual For Disciplinary
Proceedings and of the provisions of law in the Classification, Control and
Appeal Rules. The preliminary enquiry was to be conducted to ascertain
whether prima facie grounds existed for the initiation of disciplinary action.
This truth was brought before the inquiry officer at the time when the office
under inquiry filed his initial statement of defence filed immediately after the
memo of charges served on him. It was of no benefit to him as the authorities
were not interested to hear such hard realities.

4. In the Manual for Disciplinary Proceedings, it is laid down: “The driver of a

government vehicle involved in a fatal accident should be immediately placed
under suspension. An immediate departmental inquiry will be conducted
into all the aspects of the case in order to determine whether there is
necessity for taking departmental action from the normal police investigation
into the case”. In this case, nothing as contemplated by the said rule was
conducted. The intention of suspending the person alleged to have driven the
vehicle and acquitted by the court of law at an abnormally belated time was
certainly gross injustice done to him. In Bani Singh V. State of Madhya
Pradesh. A.I.R. 1990 S. C. 1308, the law had been laid down and it showed
that any disciplinary proceedings should be quashed merely on the ground
of delay and leaches. The copy of the judgement was produced before the
inquiring authority and also before the disciplinary authority even before the
commencement of the formal inquiry; but in vain.

5. There as an abnormal delay for the initiation of disciplinary action and that
too after placing the officer under suspension. In O.P. Gupta V. Union of
India, A.I.R. 1987 S.C. 2267; (1987) SCC 328, Veeramani V. State of Kerala,
1974 KLT 630; Subramaniam V. State of Kerala 1973 KLJ 31 of 1973 (1) SLR
521, the law had been laid down: “an order of suspension is not to be lightly
passed against the government servant. It results in grave civil consequences
to the officers”. In this case, anybody who evaluated the case, might think
that the order of suspension was issued with vindictiveness and animosity.
6. After placing the government employee under suspension, he was kept under
suspension for nearly 10 long months. He made representations after
representations to the inquiring authority, to the head of the department, to
the government secretary and to the chief minister of the State. Besides, he
met all the AUTHORITIES several times and pleaded that there was no
justification in keeping him under suspension which was malafide. There
was no one to listen to his petitions, representations and requests and the
impact was that he continued to remain under suspension for several
months.

7. The Manual For Disciplinary Proceedings clearly speaks about the review of
suspension within six months after an officer was placed under suspension.
In this case, no such review was conducted within the stipulated time. In
State of Kerala V. Kesavan Nair, ILR 1974 (1) Ker. 55, the law has been laid
down that “an officer should not be kept under suspension for a long time
unnecessarily. The procedure was against the established principles of law
and was an injustice done to the suspended.

8. The inquiry officer was found to be interested to see that the officer under
inquiry continued to remain under suspension for a longer period than the
stipulated period of six months. He did not send even a report to the
Government about the state of affairs even after six months. He refused to
appreciate the law laid down by the Supreme Court in Director General and
I.G. of Police V. Ratnagiri, A.I.R. 1990 S.C. 1424; (1990) 3 SCC 60; Govt. of
Andhra Pradesh V. Sivaraman, A.I.R. 1990 SC 1157 that “if the proceedings
taken against an employee have not been completed within six months from
the date of suspension, that fact should be reported to the Government”. The
inquiry officer, it appeared, wanted purposefully to delay the proceedings
and thus to cause mental agony to the suspended. Finally therefore, the
delinquent officer approached the Home Secretary with a request to reinstate
him in service. It was learnt from other sources that he exerted some
political pressure to expedite the reinstatement process.

9. The Government order suspending the officer clearly showed that the
enquiry should be completed within three months. Nothing was found to
honour the Government order. The memo of charge/statement of allegation
was served only after 5 months after the date on which he was suspended
from service. Disciplinary actions are generally initiated for violating
government orders and showing “so called” misconduct. In this case, the
 inquiry officer, a senior inspector general of police, simply ignored the
Government order and it seemed that the violator of Government order was
to conduct the violation of conduct rules by a subordinate working under
him. This was an irony and in all respects unethical to the core. Even after
the memo of charges issued to the delinquent, he was kept under
suspension for another five months more without any reason whatsoever.

10. The first notice to appear for the formal inquiry was issued to the
delinquent only after his rejoining in service after suspension. The inquiry
officer did not take into account the law put down in O.P. Gupta V. Union of
India, 1987 (4) SCC 328 that “an order of suspension affects the Government
servant injuriously unless the departmental inquiry is concluded within a
reasonable time”. During the period of suspension, the suspended was
entitled to get only the “subsistence allowance” and according to the
Supreme Court of India, the “subsistence allowance has an undeniable penal
significance (A.I.R. 1987, SC 2257). While the suspended was suffering from
financial crisis and many other problems connected with his malafide
suspension, the inquiry officer appeared to derive sadistic pleasure at the
suffering of the suspended. This was injustice of the highest order which
should be condemned by the strongest words.

11. Even after the serving of the memo of charges, receipt of the initial
statement of defence etc. the inquiry officer was dragging the inquiry to an
unimaginably indefinite time. The delinquent was making requests after
requests, but in vain. Ultimately, the officer under inquiry had to approach
the High Court of Judicature with a Writ. The Court ordered that the inquiry
should be conducted speedily, and final orders passed within three months
of the receipt of the judgement from the Court. This was indeed a blow
received by the inquiry officer so much so that he could not any longer delay
the inquiry proceedings.

12. Filing of an O.P. in a High Court meant expenditure to the delinquent.

And it too was a sort of punishment. Most unfortunately, the enquiry was
not completed-not even begun-within the stipulated time by the High Court
and consequently, the High Court had to further extend the period to three
more months. This is to say that the whole proceedings continued more than
20 months after placing the delinquent under suspension.

13. The memo of charges/statement of allegations enumerated four

prosecution documents to establish the charge(s). The actual enquiry
 (formal) commenced after 16 months after the date on which the delinquent
was suspended. Along with the notice served on the accused officer, no
notice was sent to the prosecution witnesses. The procedure was against the
rule under the Manual For Disciplinary Proceedings. On the date of the
formal inquiry, the inquiry-officer produced the photocopies of the
prosecution documents and wanted to mark them as prosecution evidence.
The delinquent raised objections to the marking of photocopies as
prosecution documents, but in vain. Stating that the original of the
documents were not forthcoming, the inquiry-officer marked them as
prosecution documents. As an inspector general of police, he certainly knew
that the photocopies should not be marked as prosecution documents. But,
because of his overenthusiasm to see that the delinquent was punished, he
did not care for the objections filed. The procedure in fact vitiated the
enquiry.

14. Following this, a serious of incriminating questions were asked to the

accused and the questioning session continued, for several hours upto 6 O’
clock in the evening and until the delinquent fell sick. The questioning was
under coercion causing mental tension and psychological trauma. The law
does not allow the inquiry officer to resort to this strange, extraordinary and
persecuting step during an inquiry; yet he did. By this procedure, the inquiry
officer was trying to prove some prosecution documents by showing the
photocopies and by asking incriminating questions to the accused in the
inquiry. The inspector general of police-who is supposed to have sufficient
information in law and procedure-ought to prove the prosecution documents
through competent prosecution witnesses and he ought not to have tried to
get them proved through the accused officer. The procedure was irregular
and against law and therefore vitiated the inquiry. The delinquent was at his
wit’s end and he did not know how to tackle the situation.

15. The questioning procedure by coercion adopted by the enquiry officer-

that too before the prosecution witnesses were examined-have of course
vitiated the inquiry at that state of the questioning procedure. Making
attempts to question the accused officer before letting him know the entire
prosecution evidence against him was incriminating. There is no law of
procedure which permitted the inquiry officer to resort to such illegal step
which was detrimental to the interest of the innocent accused. But, before
the mammoth inquiring authority the delinquent became helpless and
fragile.
16. The incriminating evidence, if the inquiry officer was able to elicit from
the accused, by prolonged questioning by coercion at that stage of the
inquiry, has to be included either in the category of prosecution
documents/evidence or in the category of defence documents/evidence. The
result was that there came a situation then that the inquiry officer could not
include the answers to the incriminating questions taken at that stage of the
inquiry proceedings either in the prosecution documents or in the defence
documents. The inquiry was vitiated.

17. A circle inspector was a prosecution witness. He was purported to have

received a letter written by the accused. The inquiry officer had only the
photocopy of the said letter. The circle inspector was examined and then he
was not shown the photocopy of the letter purported to have been received
by him. The inquiry officer ought to have shown the letter to him and prove
the same. It was not done and it meant that the inquiry officer proved the
said document only by asking incriminating questions to the accused in the
inquiry. This had vitiated the inquiry.

18. Altogether, there were four prosecution documents on the basis of

which the memo of charges/statement of allegations got prepared. This
inquiry officer did not mark the other documents as prosecution evidence
during the course of the inquiry. Resultantly, the said documents could not
be relied on to reach conclusions and it showed the flimsy and flippant
grounds on which the prosecution prepared its memo of charges/statement
of allegations.

19. The Manual For Disciplinary Proceedings stipulates that the

delinquent should be asked some mandatory questions and the answers to
them should be recorded in the oral inquiry file. The inquiry officer refused
to ask these questions and thus denied to the delinquent reasonable
opportunity to defend his case before the prosecution witnesses were
examined. The delinquent wanted to answer the mandatory questions and he
expressed his desire to do the same. But, his request was mercilessly denied.

20. The accused officer wanted to get 33 documents and he was given only
7 and thus he was forced to prepare his defence, cross-examine the
prosecution witnesses and submit his final statement of defence only with
limited number of documents. This handicapped him from presenting his
defence as he wanted to. The procedure surely showed that the accused was
denied of reasonable opportunity and natural justice. All the documents the
 accused wanted, according to him, were having bearing on the charges or
were relied upon by the inquiry officer or were necessary for him to cross-
examine the witnesses and the denial of them meant violation of the
principles of natural justice.

21. In this case, the inquiry officer was an inspector general of police-a
senor member of the Indian Police Service. He knew the law, procedure and
art of examination and cross-examination. He had theoretical and practical
knowledge in prosecution work. The accused was a civilian and was not
exposed to the practical aspects of prosecution, collection of evidence or
cross-examination of witnesses. On the strength of valid case-laws, he
wanted to get the services of a legal practitioner. Many police officers,
appreciating the spirit of the case-law, who conducted departmental
enquiries were found to allow the services of legal practitioners to defend the
cases. In this case, the request was turned down and thereby denied natural
justice and reasonable opportunity to the delinquent.

22. The inquiry officer, initially, conducted the formal inquiry with the
assistance of people who had no locus standi in disciplinary proceedings.
They were later known to be the office staff who were dealing with the file.
They were in that way experts in disciplinary inquiries and the inquiry officer
was found to consult with them on many points that might creep into during
the conduct of the inquiry. There were undue interferences, consultations
and discussions which contaminated the whole atmosphere of the Domestic
Tribunal. The crowd around the inquiry officer caused mental torture,
hindrances and embarrassment to the delinquent and he objected to it. He
raised his protest in the recordings done by people other than the inquiry
officer. Though the inquiry officer turned down the protest initially and
permitted others to record the evidence, later he yielded to the prayer of the
accused. The recordings contained numerous mistakes and distortion of
statements. On scrutiny of the procedure, it could be seen that the entire
procedure so far conducted was vitiated. The case law was well settled in
Parthasarathi V. State of Andhra Pradesh (A.I.R. 1973 S.C. 270) which read:
“If an enquiry officer adoptes a procedure which is contrary to the rules of
natural justice, the ultimate decision based on his report of inquiry, is liable
to be quashed”.

23. In the meantime, the inspector general of police who was conducting
the inquiry till then got promoted as additional director general of police.
Simultaneously, another inspector general of police was appointed to
 succeed him in office. The newly promoted additional director general of
police, instead of leaving the inquiry file at his earlier office and entrusting
the same to his successor in office, he carried the inquiry file as personal file
and started operating on it from his new office. He issued a notice to the
accused to appear before him on a specified date without making any
mention about the place where the inquiry was proposed to be resumed. The
accused filed objections and stated that the additional director general had
nothing to do with the oral inquiry as the Government order and the
direction from the High Court had entrusted the conduct of the inquiry to
the inspector general of police and not to the additional director general of
police. The fact that the additional director general of police took the inquiry
file when he was transferred out suggested that his intentions were not just
or honest or at best doubtful.

24. Immediately after filing the objection, the additional director general of
police rushed to the Government and he could manage to get a new order
issued in his favour to continue with the inquiry. The earlier order entrusting
the inquiry to the inspector general of police by designation was thus
converted into an order entrusting the inquiry to be conducted by the
additional director general of police by name. The development made matters
more bitter and suspicious further. Immediately, the delinquent officer filed
an objection stating that he had no confidence in the inquiry officer and he
established his reasons for the same in the objection-petition thus filed. The
petitions were sent to the home secretary, head of the department, to the
inquiry officer and so on. He emphatically stated that he would get only
injustice if the inquiry was conducted by the additional director of police.
The delinquent honestly thought that his prayer on genuine grounds would
be heard. But, no order was issued either rejecting or admitting his prayer. It
appeared to all that the additional director general of police was bent upon
holding the inquiry against the accused government employee. On the day,
the inquiry was resumed, the accused filed vehement protest in holding the
inquiry by the additional director general of police, but was no use. Hence,
he participated with the inquiry under full and total protest.

25. The inquiry was to prove the following issues-namely.

a. Whether Mr. A was driving the police jeep at the time when the accident
took place?
 b. Whether Mr. A had the authority to use departmental vehicle for learning
motor vehicle driving?

c. Whether Mr. A misrepresented facts in the Motor Accident Claims

Tribunal and got his name deleted from the array of the respondents.
d. Whether Mr. A caused loss to the Government.

The prosecution cited three witnesses and four documents in the memo
or charges to prove the charges against the accused. However, at the time
of inquiry, they could produce only the photocopies of two documents.
Other documents cited in the memo of charges were not produced and
marked as prosecution documents. Hence they were not proved.

26. There were true, final and absolute court judgements proving that Mr.
A was not driving the vehicle at the time of accident. The prosecution
witnesses themselves proved the second issue and established that Mr. A
had the required authority to learn motor vehicle driving. The third issue was
something which the Tribunal had to decide and the department had
nothing to do in the matter. Moreover, there was no attempt made to prove
misrepresentation before the Tribunal as no witnesses or documents
produced towards that end. The amount of compensation paid to the
dependents of the deceased and the injured was as ordered by the Tribunal
and Mr. A had nothing to do with the decision of the Tribunal. It was further
noted that the amount of compensation was not a loss, but a social and
statutory obligation placed on the owner of the vehicle. Mr. A was not the
cause of it.

The questions then were: ‘Why was Mr. A suspended?’ Why was he detained
under suspension for nearly 10 long months? Why was he harassed and
victimized? The High Court in its order gave directions to the inquiry officer
to probe into these aspects as well. For this purpose, a deputy inspector
general of police (Mr. F) was examined. Mr. F. was the deputy inspector
general of police who was the supervisor of the superintendent of police (Mr.
E.) when he started to victimize Mr. A

27. Mr. F. the deputy inspector general of police deposed that the
suspension, harassment, humiliation and victimization of Mr. A were the
result of conspiracy between the director general of police and the
superintendent of police. He proved that the ‘memo epidemic’, withdrawal of
privileges, disciplinary action etc. were the offsprings of the above said
 conspiracy. To quote the wordings of the deputy inspector general of
police-“While Mr. A was cut to size consequent to a diabolical scheme,
formulated by the then director general of police for implementation by the
most obliging subordinate, the superintendent of police, I myself was cut to
size because I had flatly refused to co-operate with the conspiracy to
humiliate, harass, harm and hurt Mr. A p0hysically, mentally, financially,
intellectually and socially etc.”

Thus, one may see from this case study that it was most unfortunate and
shocking to the conscience that the might of the office of the director general of
police should have been so ruthlessly misused through an obliging subordinate to
attempt to blot out the career of a civilian subordinate who had selflessly and
distinguishingly served the department with nearly 2 1/2 decades of unblemished
service.

EVALUATION

1. The inquiry was ordered at a belated time to victimize a subordinate: The

objective of disciplinary justice was harassment, humiliation and causing of
mental injury and financial crisis.

2. The suspension was ordered without any justifiable reasons or reasonable

grounds. The aim was to cause trouble and damage to the suspended.

3. The inquiry was entrusted to a favourite office having susceptibility to the

desires of the disciplinary authority. There was conspiracy and coercion at
the top level of administration. One finds misuse of authority.

4. The suspension and inquiry were prolonged and the intention was malafide.
It could cause only further damage to the accused.

5. None of the representations made to the authorities was timely or properly

attended to. The accused then had to helplessly cry for help from many
quarters including the High Court of Judicature. It involved expenditure and
other miseries to the accused.

6. The inquiry officer was ignorant of the law and procedure. He was holding
the inquiry in the way he wanted-and often denying the principles of natural
justice and reasonable opportunity to the delinquent. The inquiry officer was
 of questionable integrity and character-who was bent after conducting the
inquiry.

7. The inquiry officer lacked sense of justice and self-respect. He had no shame
to continue with the inquiry when his own integrity was questioned. When
distrust was expressed, he ought to have left the work, but was found to be
adamant to hold the enquiry. His sincerity and fair-mindedness were at best
suspicious.

8. The inquiry officer did not know the case laws and leading decisions. There
were procedural irregularities at many stages of inquiry. He was ignorant
about the way an enquiry should be conducted. He wanted to mark
prosecution documents and for it he was trying to prove the documents by
putting incriminating questions to the accused even at the initial stage of the
inquiry. He did not know that the prosecution documents ought to be proved
by competent prosecution witnesses and not by the accused.

9. The inquiry officer did not produce the prosecution documents at any time
during the conduct of the enquiry. It meant that the memo of charges was
framed on flimsy and flippant grounds. As a result he could not rely on those
documents for arriving at conclusions. He could get only photocopies of the
prosecution documents and he marked them as prosecution documents
knowing fully well that the photocopies had no evideneiary value in
disciplinary proceedings. The intention of the inquiry officer was at best
suspicious.

10. The inquiry officer wanted to conduct the inquiry on issues which were
already decided by competent courts of law. He wanted to establish perjury
in the Tribunal. This was nothing but unsurpation into injudicial decisions.
Although this was intended in the memo f charges, no attempt was made to
prove it during the inquiry. The intention of the inquiry officer at the time of
preparing the memo of charges was of questionable character.

11. The inquiry officer held discussions and consultations with the office
staff during the conduct of the inquiry. It once again showed his lack of
confidence and knowledge in holding the inquiry by himself. He did not make
available many of the documents which the delinquent requested. As a
result, the delinquent could not present his defence in the way he wanted. In
every sense, reasonable opportunity was denied.
12. The inquiry officer purposefully wanted the delay the proceedings and
ultimately the High Court had to intervene to fix time limit for the completion
of the inquiry. Even then, he requested further extension of time.

13. The defence could prove that the entire inquiry was initiated just to
victimize the delinquent and it was the result of high level conspiracy. To
conclude, one could see that the inquiry could administer only miscarriage of
justice to a government servant.
 APPENDIX – II
CASE LAWS ON
DISCIPLINARY PROCEEDINGS
FROM HIGH COURTS AND
THE SUPREME COURT OF
INDIA
STATE OF MYSORE V. SHIVBASAPPA, AIR 1963 SC 375

“The fact that the statements of witnesses taken at the preliminary stage of the
enquiry were used at4 the time of formal enquiry does not vitiate the enquiry if
those statements were made available to the delinquent officer and he was given
opportunity to cross-examine the witnesses in respect of those statements”.

E.S. THITHYARAMAN V. THE COMMISSIONER, AIR 1971, MADRAS, 170

“Departmental officer, on framing charges against the delinquent called upon

him to submit explanation and on receiving explanation again asked him whether
he desired oral enquiry or only to be heard in person. That letter was acknowledged
but not replied by the delinquent. Thereupon, the enquiry officer went through the
files and explanations and, without conducting actual enquiry held that the
charges were established and proposed punishment. ‘Meanwhile delinquent was
promoted to higher post and final order of reversion was passed after lapse of
about seven years from framing of charges.

Held that the failure to hold actual enquiry, orders regarding delinquent’s
promotion and long lapse of period in passing final order, were circumstances from
which reasonable inference could be drawn that delinquent’s explanation was
accepted and proceedings were dropped. The order of reversion, in the
circumstances, could not be sustained”.

ANDREWS V. DISTRICT EDUCATION OFFICER, 1968 LAB IC 756

(MYSORE)

“Certain charges were framed against the Government servant concerned in the
year 1961 to which the petitioner sent his explanation. Thereafter, in 1964,
charges were again framed against the petitioner, these charges were substantially
the same as those that were framed against him in 1961.”

If after the production of this explanation, the disciplinary proceedings was not
continued, what should reasonably follow is that the disciplinary authority was
satisfied with the explanation and dropped the charges. The strength of that
inference receives reinforcement from the fact that it was only after a period of 3
years that the charges were once again revived. The great and inordinate delay in
the revival of those charges and the antecedent discontinuance of the earlier
disciplinary proceedings over long tract of time can have no other meaning than
that the disciplinary authority was satisfied with the explanation offered by the
petitioner on October 24, 1961 and that in consequence the proceedings against
him were discontinued and abandoned. If that was how the earlier disciplinary
proceedings terminated, it was not within the competence of the disciplinary
authority to exhume these charges and make them the subject matter of another
disciplinary proceedings, as late as in the year 1964.

KESAVAN NAMBOODIRI V. STATE OF KERALA, 1982 KLT 512

“The disciplinary authority cannot wipe out the inquiry already conducted and
direct a de novo enquiry. Where the findings of the inquiry authority are adverse to
the delinquent officer, it is open to the disciplinary authority to consider the
material and evidence, come to a different conclusion and exonerate him from
charges. If, on the other hand, the inquiring authority holds that the charges are
not proved, it is open to the disciplinary authority to take a different view and
record findings. Where the disciplinary authority is satisfied that some evidence
which would have been available was not collected by the inquiring authority, it
may even direct the inquiring authority to proceed further with the inquiry in the
interests of justice. There is no provision in the rules to order a de novo inquiry in
the interests of justice. There is no provision in the rules to order a de novo inquiry
after wiping out the inquiry already conducted.

K. BABU V. UNION BANK OF INDIA, 1986 KLT 706

“Where an employee is fully and honourably acquitted by a criminal court, it

would not be expedient or proper to continue departmental proceedings against
him on the same charges and on the same evidence because usually the decision
of a Court, trained in examining and answering questions of law and facts should
receive the utmost respect and should be placed on a higher pedestal than the
conclusion reached by an inquiry officer, who may also be honest and impartial,
but is still not so trained and not bound by rules of evidence or set legal
principles”.

S. PARTHASARATHI V. STATE OF ANDHRA PRADESH, AIR 1973 SC

2701

“The continuance of inquiry by biased officer, ceasing to officiate as officer

appointed to inquiry was bad in law. The subsequent authorization by Government
by name did not validate the inquiry proceedings and the order of punishment
passed on the basis of such inquiry was illegal, invalid and inoperative.”

METROPOLITAN PROPERTIES CO. LTD., V. LANNON (1968) 3 ILR 694

“If right minded persons would think that there is likelihood of bias on the part
of an inquiring officer, he must not conduct an inquiry, nevertheless, there must
be real likelihood of bias. Surmise or conjecture would not be enough. There must
exist circumstances from which reasonable men would think it probable or likely
that the inquiring officer will be prejudicial against the delinquent. The court will
not enquire whether he was really prejudiced. If a reasonable man would think on
the basis of the existing circumstances that he is likely to be prejudiced, that is
sufficient to quash the decision”.
ALIAS V. STATE OF KERALA 1988 (1) KLT 73

The rule “precludes the initiation of disciplinary proceedings after the decision
of the criminal court and does not preclude continuation of the disciplinary
proceedings initiated before the criminal court took cognizance of the offence in
respect of the same allegations”.

“If on a full consideration of the same fact, a criminal court has arrived at a
definite decision, which is neither reversed nor modified in appeal, the department
shall not take any further proceedings on the basis that the proceedings in
criminal court were misconceived or that the judgement was errorneous.

If, however, certain facts which call for departmental action are not relevant to
the charges before the criminal court and as such, were not placed before the
court, there shall be no objection to departmental action being taken on such
facts”.

A.P. AUGUSTINE V. SUPERINTENDENT OF POST OFFICES, 1984, KLT

226

“The fact that even after two and a half years the enquiry has not commenced
shows that the respondents had no intention of taking any immediate steps in that
direction when the petitioner was ordered to be kept off duty. To put an employee
off duty without any enquiry and payment of salary or allowances for an unduly
long period was a malafide and unauthorized act.”

No fair and effective enquiry can be conducted unless it commences within a

reasonable time after the incident. To call upon an employee to defend himself at
this distance of time is probably to put him at considerable disadvantage and thus
deny him the benefits of natural justice.

MADHYA PRADESH V. BANI SINGH, AIR 1990 SC 1308

“The appeal against the order dated 16-12-1987 has been filed on the ground
that the Tribunal should not have quashed the proceedings merely on the ground
of delay and leaches and should have allowed the enquiry to go on to decide the
matter on merits. We are unable to agree with this contention of the learned
counsel. The irregularities, which were the subject-matter of the enquiry is said to
have taken place between the years 1975-77. It is not the case of the department
that they were not aware of the said irregularities, if any, and came to know it only
in 1987. According to them even in April 1977, there was doubt about the
involvement of the officer in the said irregularities and the investigations were
going on since then. If that is so, it is unreasonable to think that they would have
taken more than 12 years to initiate the disciplinary proceedings as stated by the
Tribunal. There is no satisfactory explanation for the inordinate delay in issuing
the charge memo and we are also of the view that it will be unfair to permit the
departmental enquiry to be proceeded with at this stage. In any case, there are no
grounds to interfere with the Tribunal’s order and accordingly, we dismiss this
appeal.”

KUSHESHWAR DUBEY V. M/S BHARAT COKING COAL LTD., AIR 1988

SC 2118

“While there could be no legal bar for simultaneous proceedings being taken
against the delinquent employee against whom disciplinary proceedings were
initiated, yet there may be cases where it would be appropriate to defer disciplinary
proceedings awaiting disposal of the criminal case. In the latter class of cases, it
would be open to the delinquent-employee to seek such an order of stay or
injunction from the court”.

RAMANKUTTY WARRIER V. STATE OF KERALA, 1983 KLT 245

The findings entered in the impugned orders in violation of the principles of

natural justice cannot be allowed to stand merely for the reason that the
punishment imposed is minor penalty under the Rules which does not prescribe
an elaborate enquiry for the imposition of a minor penalty. The offence found
against the petitioner is one for which a major punishment can be imposed, after
detailed enquiry as contemplated by the Rules. The imposition of a minor penalty
cannot be expedient to dispense with a detailed enquiry under the Rules before a
government servant is found guilty of a grave offence involving moral turpitude.

SURENDRA SEN V. DIRECTOR OF S & L RECORDS, 1975 KLT 582

 “When once the disciplinary authority informs the delinquent of its intention to
impose a major punishment, it necessary to follow the procedure laid down for
such an enquiry. If, after the final enquiry, the disciplinary authority feels that in
the circumstances of the cases, a major punishment is not necessary, the
disciplinary authority is perfectly at liberty to after the original proposal of
imposing a major penalty into a minor one”.

NARAYANAN NAIR V. STATE OF KERALA, 1970 KLT 1069

“It is not permissible for the disciplinary authority to shift over from one
procedure to the other at the stage of passing the final order so as to deprive the
government servant concerned of an effective opportunity of showing cause against
the action proposed to be taken against him which is guaranteed to him even
under the rule”.

ENOS JEEVAKUMAR V. STATE OF KERALA, 1977 KLT 733

“When the statutory rule has prescribed a particular procedure as the one to be
followed in the matter of taking a particular action, there is not scope for the
application of any general principles of natural justice. As had been pointed out in
many a decision of the Supreme Court, the rules of natural justice cannot be
strait-jacketed into a rigid formula applicable to all cases and to all circumstances.
What rule of natural justice should govern a case will depend upon its individual
facts and circumstances, and if the case is one covered by a particular statutory
provision prescribing a special procedure, the observance of that procedure would
be deemed to satisfy all the requirements of law thereby excluding the applicability
of the general principles of natural justice”.

MATHEW V. STATE OF KERALA 1989 (1) KLT 88

“The Government are entitled to consider the report and evidence recorded by
the enquiry officer. The Government may agree with the report or may differ either
wholly or partly in so far as the conclusions arrived at by the enquiry officer is
concerned. If the Government disagrees with the findings arrived at by the enquiry
officer and hold that the charges framed against the delinquent officer are prima
facie proved, the Government should provisionally decide as to what punishment
should be imposed on the public servant. Then a notice must be issued to the
delinquent officer regarding the proposed action. Second notice is to enable the
public servant to satisfy the Government that he is innocent of the charges framed
against him-the proposed punishment is unduly severe. No decision that laid down
the proposition that the findings recorded by the enquiry officer conclude the
matter and that the Government which ordered the enquiry is bound by the
findings arrived at by the enquiry officer. Nor has it been said that the findings
arrived at by the enquiry officer are final and cannot be opened by the
Government. The object of the enquiry is to enable the Government to hold an
investigation into the charges framed against a public servant. So, the Government
can consider the evidence adduced and decide whether the said charges are proved
or not. In this view, it is difficult to hold that the findings recorded by the enquiry
officer binds the Government and that the Government cannot deviate from the
conclusions recorded by the enquiry officer in the last paragraph of the report.

BHUPINDER SINGH V. UNION OF INDIA, (1982) 2 SC 53

“The grievance is that by keeping the disciplinary proceedings pending, the

claim to promotion is being passed over and many who are junior to him are
securing promotions while he is not. We think there is substance in the grievance
of the petitioner. We are not inclined to consider the merits of the matter. Of
course, the disciplinary authority will go into the tenability of the charges, but it
cannot keep the proceedings indefinitely pending causing injustice to the
petitioner”.

STATE OF MYSORE V. SHIVABASAPPA SHIVAPPA MAKAPUR, AIR 1963

SC 375 (V 50 C 44)

“In respect of taking of evidence in an inquiry before the domestic tribunal, the
person against whom a charge is made should know the evidence which is given
against him, so that he might be in a position to give his explanation. When the
evidence is oral, normally the examination of the witness will in its entirety, take
place before the party charges, who will have full opportunity of cross-examining
him. The position is the same when a witness is called, the statement given
previously by him behind the back of the party is put to him, and admitted in
evidence, a copy thereof is given to the party, and is given an opportunity to cross-
examine him. To require in that case that the contest of the previous statement
should be repeated by the witness word by word, and sentence by sentence, is to
insist on bare technicalities and rules of natural justice are matters not of form but
of substance. They are sufficiently compiled with when previous statements given
by witnesses are read over to them, marked on their admission, copies thereof
given to the person charged and he is given an opportunity to cross-examine
them”.

Thus, one may find any number of decided cases from the court of law to show
how injustice is perpetuated in the name of administration of disciplinary justice.
One and the same grounds are repeated by courts to establish how the disciplinary
authority/enquiry officer violates the principles of natural justice. The courts, over
and again enumerate the same causes to prove that reasonable opportunity is not
given to the delinquent under inquiry. Procedural irregularities are seen almost in
all cases filed before the courts. There exist visible and invisible causes behind the
proving or not proving the charges framed against the accused. Inter-personal
rivalry, animosity, personality clashes, vindictiveness of the authority may be
found on one side; the helplessness, political orphanhood, financial
handicappedness, lack of courage, knowledge and good-will of the associates/co-
employees etc. may be seen on the other side. As the subordinate, he is fated to be
always the victim of disciplinary proceedings. He suffers and he has to suffer and it
is in this suffering, one may see disciplinary injustice.
 APPENDIX – III
“MEMO OF CHARGES”
Charge against Shri…………………………………………………………………………
(name) …………………………………………….. (post) …………………………………………
(place of appointment etc ………………………………………………………………………)

I. That you, Sri…………………………………………………………………………….

While holding the post of ……………………………………………………
committed (here enter the substance of the offence or offences alleged,
specifying where relevant the date or dates, time and place or places
concerned).

II. You are required to show cause why disciplinary action as contemplated
under the Kerala Civil Services (Classification, Control and Appeal) Rules,
1960, (and/or other rules applicable as may be specified) should not be
taken against you. You are allowed 15 days from the date of receipt of this
communication to submit your written statement of defence. If your
written statement is not received within the specified time, the matter will
be proceeded with on the presumption that you have no explanation to
offer. You are also required to state whether you desire to be heard in
person. You may peruse the relevant records mentioned in the statement
of allegations and take down extracts from them if so desired, in the
presence of ……………………………… on any day prior to the due date for
submission of your written statement of defence on any day which will be
fixed in advance at your request.

III. A statement of allegations on which the above charge(s) is/are based is

hereto attached.
STATEMENT OF ALLEGATIONS

(Here enter the facts containing allegations against the officer)

IV. The following are some of the witnesses who may be examined in this
connection. Others also may be examined if found necessary (here
enumerate the names and addresses of the witnesses who are proposed to
be examined in support of the charge).

(8) The specimen shown below will be adopted for preparing the charge memo
and statement of allegations in an enquiry in which only a minor penalty is liely
to be imposed:-

“MEMO OF CHARGE”

Charge against Shri………………………………………………………………….

(name)………………………………………………….(post)…………………………….……..
(place of appointment etc…………………………………………………………………….)

I. That you, Shri…………………………………………………………… committed

(hereinafter the substance of the offence or offences alleged, along with
the date or dates and place or places concerned).

II. You are required to show cause, if any, why disciplinary action as
contemplated under Kerala Civil Services (Classification, Control and
Appeal) Rules, 1960, (and or other rules applicable as may be specified)
should not be taken against you. You are also allowed 15 days from the
date of receipt of this communication to submit your written statement of
defence. If no such statement is received within the said period the matter
will be proceeded with on the presumption that you have no defence.

III. A statement of allegations on which the above charge is based is attached.

 STATEMENT OF ALLEGATIONS

……………. …………….. …………… …………….. ……………..

……………. …………….. …………… …………….. ……………..

……………. …………….. …………… …………….. ……………..

……………. …………….. …………… …………….. ……………..

……………. …………….. …………… …………….. ……………..

NOTE

(i) See also instructions in sub-paragraph (9) below:-

(ii) This communication makes no reference to the examination of any

witness or to the opportunity for the perusal of any record. If, however,
any request for these is received by the Disciplinary or Inquiring
Authority, the Disciplinary Authorities shall dispose of the request
according to the merits of the case and communicate the decision to the
delinquent Government servant.

NOTE

The specimen is taken from the Manual For Disciplinary Proceedings applicable
to the State of Kerala.