Tuesday, 8 February 2022

Conduct & Disciplinary Rules – 104 : (Compiled By Com Kayveeyes)

 Conduct & Disciplinary Rules – 104 : (Compiled By Com Kayveeyes) 


34. Traditional elements of fair hearing lies in the principle of natural justice – book on “New Jurisprudence”.

(i)           One cannot be a judge in this own cause, and the judge cannot be prosecutor – this is maxim of neutrality.

(ii)          No one is to be condemned unheared – this is maxim of opportunity to represent one’s case.

(iii)        Notice must fairly disclose the charges a person has to meet and that reasonable time must be given to him to make his defence. This is “maxim of notice”

(iv)        No one should be taken by surprise and there should be therefore full disclosure of all evidence and documents on which a decision is to be taken against a person. This is “maxim of rule against surprise”.

(v)          Claim to be represented by lawyers (defence assistant). This is rules of adequate legal representation.

(vi)        A right to cross examine evidence and challenge facts. This is “rule of tested evidence”.

(vii) The incidental right to call evidence, oral and documentary and the necessary facility to have subpoena for the same for compulsory testimony. This is the “rule of facility”, for evidence and presentation of facts.

(viii)                   A right to full judgment which should disclose the reasons for the order and not the order merely. This is the “rule of reasoned decision” and finally.

(ix)   The right to appeal for further and higher judgments. This is rule of balancing variable human judgments”. 

35. Sanction under the Prevention of Corruption Act, 1988 necessary for Prosecution:

The question of sanction is of paramount importance for protecting a public servant who has acted in good faith while performing his duty. In order that the public servant may not be unnecessarily harassed on a complaint of an unscrupulous person, it is obligatory on the part of the executive authority to protect him... If the law requires sanction, and the court proceeds against a public servant without sanction, the public servant has a right to raise the issue of jurisdiction as the entire action may be rendered void ab-initio.


36. Charge and Punishment for Passing Wrong Order in Adjudication Proceedings:

An error in interpretation of law cannot be a ground for misconduct unless it is deliberate and actuated by mala fides. If an error of law would constitute misconduct, it would be difficult to independently function for a quasi judicial officer. Such an action could always be corrected in appeal.

[Zunjarrao Bhikaji Nagarkar vs. Union of India and others - 2002-TIOL-130-SC-CX]

37. Disciplinary proceedings could be initiated against a government servant concerned with regard to exercise of quasi judicial powers, if the act or omission is such as to reflect on the reputation of the government servant for his integrity or good faith or devotion to duty; there is a prima facie material manifesting recklessness or misconduct in discharge of the official duty; the officer had failed to act honestly or in good faith or had omitted to observe the prescribed conditions which are essential for the exercise of statutory power.

[Union of India and others vs. Shri K.K. Dhawan - 2002-TIOL-441-SC-MISC-LB]

38. While performing judicial or quasi judicial functions, if the authority acted negligently or omitted essential conditions prescribed for exercise of such power, disciplinary proceedings could be initiated.

[Union of India and others vs. Duli Chand - 2006-TIOL-78-SC-MISC-LB]

 39. Natural Justice – Nemo judex in causa sua – Bias.

Thomas Pothen v. Sr. Suptd. Of Post Offices, (1987) 3 ATC 876 (Mad)


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