Sunday, 22 April 2018

Plea Bargaining - HOTA Committee recommendations

Plea Bargaining - HOTA Committee recommendations

Plea Bargaining - HOTA Committee recommendations

64. We have received a suggestion that to reduce the pendency of the large number of Disciplinary Inquiries, it would be expedient in the public interest to introduce the concept of “plea bargaining” by delinquent Government Servants. Under the proposed scheme of “plea bargaining”, such Government Servants on whom Articles of Charge have been served, may be informed that if he opts for presenting a plea in this regard and admits the Articles of Charge, he would be given a comparatively lenient penalty. We clarify that if plea bargain is accepted the Disciplinary Authority need not appoint an Inquiry Officer to inquire into the charges. 

65. “Plea bargaining” started in Criminal Courts in USA. Following the recommendation of the Malimath Committee, the Government of India accepted “plea bargaining” in criminal trials and in the year 2005 has amended the Code of Criminal Procedure 1973 to introduce “plea bargaining” for offences where the maximum punishment is imprisonment upto seven years only. We could not have access to reliable data as to how “plea bargaining” has worked in practice in criminal trials in India. It does not, however, appear as if “plea bargaining” has resulted in drastic reduction of the huge backlog of 65 pending criminal cases in trial courts in the country. We are, however, conscious that criminal cases pending in Courts of India are far too many and the backlog of pendency of such cases in Courts is rather colossal. Pendency/backlog in Disciplinary Inquiries may not be as heavy or colossal. Taking an overall view of the matter, we recommend introduction of “plea bargaining” provided in no case will it be made available to a delinquent Government Servant charged with lack of integrity or corrupt practice. A delinquent Government Servant facing charge of misconduct for lack ofintegrity and corrupt practice, if held as proved, should be either removed or dismissed from service as per the existing instructions and weeded out of the system, where he has been as lethal as a cancerous growth. Removal of corrupt Government Servants has also been recommended in State of Rajasthan versus B.R.Meena(AIR 1997 SC 13), where the Supreme Court held that the administrative machinery should be kept unsullied by removing 66 corrupt officials through appropriate proceedings under the law. We have also mentioned elsewhere in this Report that as per the Notification of the Department of Personnel & Training, Government of India of October, 2000, in proven cases of lack of integrity or corrupt practice by a Government Servant, the penalty must be either dismissal or removal from service. 

66. “Plea bargaining” can be introduced in Disciplinary Inquiries except for charges of lack of integrity or corrupt practice through appropriate Executive Instructions and amendment of the Service Rules is not required to introduce the scheme. Further, to eliminate any possibility of error of judgement in matters of ‘plea bargaining’, the Disciplinary Authority may be suitably advised by a Committee of senior officers of appropriate rank before a ‘plea‐bargain’ of a delinquent Government Servant is accepted by the Disciplinary Authority. 

67. Under this arrangement of “plea bargaining”, a delinquent Government Servant on whom Articles of Charge for major penalty Inquiry have been served could be given the opportunity to admit the charges on the understanding that if he admits the Articles of Charge, a penalty other than any major penalty would be imposed on him. Certain other features of this system of plea bargaining need to be spelt out as follows: (a) The delinquent Government Servant would have to admit the charges entirely, categorically and unconditionally, clarifying also that he cannot and will not go back on this admission subsequently. (b) All cases where a request for a plea bargain is received should be examined by a panel of three officers constituted by the Head of Department or the Secretary to the Government of India concerned. This mechanism seems desirable in order that a single officer is not hesitant about dealing with a plea bargain, apart from ruling out instances of alleged or actual collusion.

Abuse of power by the Disciplinary Authority

120. While we are concerned that delinquency on the part of Government Servants should be dealt with effectively and quickly, we are also aware of the danger of abuse of the process by Disciplinary Authorities to punish subordinates who stand up against wrong action by the superiors. We may argue that such cases of abuse of power by the Disciplinary Authority are rather rare but, in our experience, cannot be completely ruled out. While rendering the first stage advice, if the CVC considers or has reason to believe that the proposal to initiate a Disciplinary Inquiry is totally baseless, he may advise punitive action against the Disciplinary Authority. This would ensure that there is responsible exercise of power by the Disciplinary Authority and witch‐hunting of honest Government Servants would be prevented.

-- (Posted in academic interest to equip our comrades--- NS)


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