Conduct & Disciplinary Rules - 61 to 66 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C
Conduct & Disciplinary Rules - 61 to 66 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
1. REVIEW OF INSPECTION REPORTS OF HPOS/SOS AND BRANCH OFFICES-REGARDING
In recent times several frauds involving huge amounts in Savings Bank and Cash certificates have come to light. The total amounts involved in these frauds were huge in comparison to the amount involved in the total number of fraud cases. Out of the total number of 3943 fraud cases of 1995-96, involving an amount of Rs. 492.51 lakhs, the number of fraud cases in SB and Cash certificates alone was 745 involving an amount of Rs. 139.14 lakhs which is 28% of total amount involved in the frauds. The matter was recently reviewed by the Secretary (Posts) to see whether the scrutiny of inspection reports of HPOs, Sub Post Offices and Branch Post Offices are being carried out as per the instructions and also whether the question relating to the Saving Bank and Cash certificates are being properly attended to by all inspecting offices.
2. An Inspection report reflects a clear picture of the working of an office and the aim of inspection should be result oriented. Directorate's instructions contained in No. 29-2/85-Inspn. dated 18.8.1988 and No. 17-3/92-Inspn. dated 2.7.1992 for review of the inspection reports by a higher authority. The inspection Head Post Office is carried out by the Divisional Supdt., and these reports are available in the Regional Office or Circle Office and are to be reviewed by the DPS/PMG/CPMG. Similar Inspection reports of the SOs and BOs are available in the Divisional Office because are to be reviewed by SSPOs/DySPOs. Inspection reports are also required to be reviewed at the time of annual inspection by the Inspecting Authority.
3. It is noticed that inspite of the prescribed reviews as above, cases of misappropriation are being noticed as a result of supervisory lapses at all levels. With a view to arrest this situation, Secretary (P) has ordered that:
i. Officers from the Directorate such as Members of the Board, Sr, DDG (Vig.)/DDG (PG) and Sr. DDG (Inspn.) may review paras relating to SB/Cash certificates reflected in the inspection reports of HO's/GPO's, whenever they happen to visit Regional/Circle Offices. They may submit their review report to the next higher authority
ii. Similarly CPMG/PMG/DPS on their visits to divisional offices/HOs should also scrutinize paras relating to SB/Cash certificates attempted in the inspection reports of the SOs/BOs. This check will be in addition to the routine check prescribed during annual inspection.
4. It is requested that the above instructions may be noted by all concerned for compliance.
[DG(P) letter No. 17-4/96-Inspn. dt 8/1/97]
2. OFFENCES UNDER VARIOUS ACTS AND CODE
Indian Post Office Act
1. Misconduct of person employed to carry or deliver mail bags or postal article in course of transmission by post is
In a state of intoxication when so employed or is guilty of carelessness or other misconduct, whereby the safety of any such mail bag or postal article is endangered, or loiters or makes delay in conveyance or delivery of any such mail bag or postal article or does not use due care and diligence safely to convey or deliver any such mail bag or postal article. Section 49
2. Voluntary withdrawal from duty without permission or notice of person employed to carry or deliver mail bags or postal articles. Section 50
3. Making false entry in the register kept by person employed to carry deliver postal articles. Section 51
4. Theft, dishonest misappropriation, Secretion, destruction or throwing away of Postal articles. Section 52
5. Opening, detaining or delaying Postal articles. Section 53
6. Fraud in connection with official marks and for receipt of excess postage. Section 54
7. Fraudulently preparing, altering Secreting or destroying Post Office documents Section 55
8. Fraudulently sending unpaid postal articles. Section 56
9. Defiling or injuring post office letter boxes. Section 62
10. Making false declaration. Section 64
11. Detaining mails or opening mail bags. Section 65
12. Retaining Postal articles wrongly delivered. Section 68
13. Unlawfully diverting letters. Section 69
Indian Telegraph Act
1. Establishing, maintaining or working un- authorised Telegraph. Section 20
2. Unlawfully attempting to learn contents of message. Section 25
3. Telegraph officer fraudulently sending messages without payment. Section 27
4. Telegraph Officer is guilty of an act of drunkenness, carelessness or other misconduct whereby correct transmission or delivering message is impeded or delayed. Section 28
5. Retaining message delivered by mistake. Section 30
Indian Penal Code
1. Abetment of a thing. Section 107
2. Public servant taking gratification other than legal remuneration in respect of official act. Section 161
3. Taking gratification in order by corrupt or illegal means to influence public servants. Section 162
4. Wearing garb or carrying token used by public servant with fraudulent intent. Section 171.
5. Absconding to avoid service of summons or other proceedings. Section 172
6. Obstructing public servant in discharge of public functions. Section 186
7. Using as genuine a Govt. stamp known to be counterfeit. Section 260
8. Effacing writing from substance bearing Govt. stamp or removing from documents a stamp used for it with intent to cause loss to Govt. Section 261
9. Using Govt. stamp known to have been used. Section 262
10. Erasure of mark denoting that stamp has Section-263 been used. Section 263
11. A Prohibition of fictitious stamps. Section 263A
12. Voluntarily causing hurt to deter public servant from his duty. Section 331
13. Theft. Section 378
14. Robbery Section 390
15. Dacoity. Section-391
16. Dishonest misappropriation of property. Section-403
17. Criminal breach of trust. Section-405
18. Criminal breach of trust by public servant, or banker merchant or Agent. Section-409
19. Dishonestly receiving stolen property. Section-411
20. Cheating. Section-415
21. Cheating by personation. Section-416
22. Cheating and dishonestly inducing delivery of property Section-420
23. Mischief. Section-425
24. Criminal Trespass. . Section-441
25. Forgery Section-463
26. Making a false document. Section-464
27. Forgery of valuable security, will etc. Section-467
28. Forgery for purpose of cheating. Section-468
29. Forged document. Section-470
30. Having possession of document described in Section-466 or 467, knowing it to be forged and intending to use it as genuine. Section-474
31. Falsification of accounts. - Section-477A
The Prevention of Corruption Act, 1988
1. Public servant taking gratification other than legal remuneration in respect of an official act. Section- 7
2. Criminal misconduct by public servant. Section-13
3. Person authorised to investigate. Section-17
4. Power to inspect Banker’s book. Section-18
Note: The Sections cited above are not exhaustive.
Conduct & Disciplinary Rules – 63
I. CCS (CCA) Rules 1965 – Principle of natural justice - Introduction
Every Government servant is expected to conduct himself as becoming of a Government servant as stipulated in Conduct Rules. Accordingly, any misconduct on his/her conduct is liable for penalty. The various procedures to be adopted before awarding punishment for misconduct are enumerated under CCS (CCA) Rules 1965. The lawmakers have embodied adequate protection to the workforce to ensure that innocent and honest errors in judgment are not penalized.
i) Principle of Natural Justice
The procedure for Departmental Inquiries is based on the principles of Natural Justice. The principles of natural justice have been evolved by courts of law through judicial pronouncements.
They are: -
(i) No one shall be condemned unheard.
(ii) No one shall be a judge in his own cause.
(iii) Justice should not only be done, but should manifestly appear to have been done.
(iv) A clear speaking order.
ii). Essence of Government Service:
The essence of Government service is the sense of Discipline to which all Government employees are subjected and the privileges to which they are entitled. The Government has evolved two sets of rules covering these two aspects, which mainly related to the employees 'Code of Conduct' and 'Discipline'. These are the "CCS (Conduct) Rules 1964 and CCS (CCA) Rules 1965, as far as Gramin Dak Sevak's are concerned "The Department of Posts Gramin Dak Sevaks (Conduct and Engagement)' Rules 2020, substituted for both the above said two set of rules. This superseded the P&T ED Agents (Conduct and Service) Rules, 1964,2001 &2011.
iii). Constitutional Safe Guards
Article 311 (1) Provides the protection that nobody subordinate to the appointing authority can dismiss or remove and employee from service.
Article 311 (2) Provides protection that no employee shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.
With a view to ensuring strict adherence to these constitutional safeguards specific rules and procedure have been framed by the Government in the Form of CCS (CCA) Rules, 1965, no procedural defects in dealing with disciplinary cases is therefore expected from the different authorities while acting under these rules.
Disciplinary proceedings - Why, When and How?
The code of conduct is made applicable to Government servants, in the form of CCS (Conduct) Rules. Similarly, different kinds of rules to regulate the performance of employees in each organization under the Government are evolved by the Government Department/organization. Disciplinary rules are invoked when there is a violation of these rules. In other words, committing an offence in contravention of the rules of conduct is the reason for initiating disciplinary proceedings against a Government Servant. It will be initiated only when the appropriate disciplinary authority decides. It is also necessary that the disciplinary authority should follow the prescribed procedure in CCS (CCA) Rules, 1965 scrupulously while initiating, conducting and concluding such proceedings.
Conduct & Disciplinary Rules – 64
CCS Rules & Principles of Natural justice
I. Extract from the Constitution of India
ARTICLE 311 Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
(2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided that where it is proposed after such inquiry, to impose upon him any such penalty, such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed:
Provided further that this clause shall not apply –
(a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry ; or
(c) where the President or the Governor, as the case may be, is satisfied that in the interest of the security of the State it is not expedient to hold such inquiry.
(3) If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause (2), the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.”
II. CONSTITUTIONAL SAFEGUARDS TO CIVIL SERVANTS AND NATURAL JUSTICE
Article 311, which has been called as "unique in world constitutionalism" places two restrictions on the prerogative of dismissal at pleasure. It reads thus;
Art. 311 : Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or State :
1. No person who is a member of a civil service of the Union or an All India Service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
2. No such person as aforesaid shall be dismissed or removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.....
A bare reading of the above provisions makes it clear that -
(i) Persons employed in civil capacities under the Union or the State shall not be dismissed or removed by an authority subordinate to that by which he was appointed; and
(ii) No such person shall be dismissed or removed or reduced in rank except after an enquiry as provided in clause (2)
In order to enjoy these constitutional protections, there must exist a master-servant relation between the State and the person said to be holding a post under it.
The provisions of Article 311 are applicable both to permanent and temporary servants but has no application -
(a) to persons in military service
(b) to persons who do not serve under Union or a State but under a statutory corporation, such as Life Insurance Corporation etc.
Conduct & Disciplinary Rules – 65
CCS Rules & Principles of Natural justice
I. PRINCIPLES OF NATURAL JUSTICE
What are all may be stated as the Principles of Natural Justice?
(a) No one can be condemned unheard
(b) No one can be a judge in his own case
(c) Justice should not only be done but should manifestly appear to have been done
(d) Final order must be speaking order
What is Audi Alteram Pattern? And what is the protection granted under the principle of natural justice?
Audi Alteram Pattern is basically a protection against arbitrary administrative action comprises within itself a number of rights. This rule implies that the accused has a right to
(a) know the charge
(b) inspect documents
(c) know the evidence
(d) cross examine witnesses
(e) lead evidence
In essence, the protections granted under Article 311 (2) of the Constitution as well the CCA Rules are codification of the above principle of natural justice.
II. Rule of Bias
What are all the important rule of bias in the disciplinary cases?
Generally, three kinds of bias are considered as important:
a) Personal Bias – One may be personally interested in the outcome of the case. If one is required to act as the complainant as well as the decision-making authority, the outcome is likely to be biased
b) Pecuniary bias – A person who has a monetary interest in an issue should not deal with the case. If one is a share holder in a company, it would be improper for him/her to decide whether a contract should be given to that company or some other company.
c) Bias of subject matter – One who has certain strong notions/ views about certain subjects might not be suitable for deciding issues relating to that subject. For example, one having strong male chauvinistic views, may not be suitable for dealing with issues relating to harassment of women employee
Whether the Rule of bias must be taken in consideration at all stages?
The Rule of bias should be borne in mind at the time of appointment of Inquiry Officer and dealing with the request of the Charged Officer for change of Inquiry officer.
What are all the exemptions in the rule of bias?
It is well established that the rule of bias has the following exemptions:
❖ Waiver - Where the party concerned has waived its right to question the proceedings for violation of the rule of bias, the issue cannot be raised subsequently.
❖ Necessity - there may be situation when a person may not be able to withdraw from the decision-making process due to reasons of necessity (like connected or close relative of the any one related to the enquiry)
❖ Statutory Power - No other person can be substituted in his place. And it may sometimes happen that no other member is available to take the place and functioning.
Notwithstanding the above exemptions, it is essential that no person having any stake in the outcome of the disciplinary proceedings act as the Inquiry Authority nor exercise the powers of Disciplinary Authority. Justice should manifestly appear to have been done
What is the principle of natural justice requiring in the process of disciplinary proceedings by issuing speaking orders?
The following orders issued in the course of disciplinary proceedings, must be speaking orders:
❖ Orders disposing of the allegations of bias on the part of Inquiry Authority and requesting for change
❖ Orders dealing with the request for appointment of a Legal Practioner as a Defence Assistant
❖ Orders dealing with the request for appointment of a person from outstation as a Defence Assistant
❖ Orders rejecting the request for defence documents/witnesses
❖ Orders deciding on request for adjournment
❖ Final orders imposing penalty
❖ Orders of the Appellate, Revisionary or Reviewing authority
Conduct & Disciplinary Rules – 66
CCS Rules & Principles of Natural justice
I. JUDICIAL PRONOUNCEMENTS
1. No Removal By Subordinate Authority
i. 'Subordinate' means subordination in rank and not in respect of function. Where the order of dismissal is made by an authority subordinate to the appointing authority, the unconstitutionality is not cured by the fact that the order of dismissal is confirmed, on appeal by the proper authority.
[Suraj Narain Anand v. North West Frontier Province, AIR 1942 FC 3]
ii. The power to dismiss cannot be delegated
The appointing authority cannot delegate his power of dismissal or removal to a subordinate authority, so as to destroy the protection afforded by the Constitution unless the Constitution itself authorises such delegation by other provisions.
[Ramchandra v. DIG, AIR 1957 MP 126]
iii. It is not required that dismissal or removal must be ordered by the very same authority who made the appointment or by his direct superior. There is a compliance with the clause if the dismissing authority is not lower in rank or grade than the appointing authority.
iv. As held in Venkateswarrao v. State of Madras, AIR 1954 Madras 1043 the dismissal by an authority superior to the appointing authority is not bad. There have been judicial pronouncements to the effect that clause (i) of Art. 311 has no application where the punishment is of reduction in rank. Since Art. 311 (1) does not refer to reduction in rank, the authority to impose such punishment need not be the appointing authority as held in Babaji Charan Rout v. State of Orissa, 1982 Lab IC 603 (Ori) and Const. Nyadar Singh v. Union of India, AIR 1988 SC.
v. Since the clause (1) of Art. 311 does not apply to any other punishment, the question of laws or rules or administrative instructions regarding other punishments or disciplinary action in relation to such punishment being violative of Art. 311 (1) cannot arise - although such actions are liable to be tested against Arts 14 and 16 of the Constitution.
2. Reasonable Opportunity to defend
i. In relation to the three major punishments of dismissal, removal and reduction in rank, Clause (2) of Art 311 mandates the compliance of natural justice. It provides the procedural essentials to be followed before the dismissal, removal or reduction in rank of an employee. An opportunity to defend has to be given to the civil servant at the stage of enquiring of charges against him. This opportunity to defend himself, does not, it will be noted, apply to all cases of termination of service by the Government. The protection under Article 311 (2) can be available only where dismissal, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
ii. The inquiry contemplated by Art 311 (2) is what is generally known as a departmental enquiry and the constitutional requirements for a proper inquiry within the meaning of Art 311 (2) are two fold :
(a) The civil servant must be informed of the charges against him.
(b) He must be afforded a reasonable opportunity of being heard in respect of those charges.
→
0 comments:
Post a Comment