REPORT OF THE COMMITTEE OF EXPERTS ON DISCIPLINARY & VIGILANCE INQUIRIES
The Committee of Experts headed by Sri. P. C. Hota appointed by DOPT on 12.05.2010 to review the procedure of Disciplinary/vigilance Inquires and recommend measures for their expeditious disposal has submitted its report on 14.07.2010.
The most part of the report advocates fighting against corruption at higher level and the need to curb corruption even by interpretating Article 31 (b) of the constitution to remove them without any enquiry. Whole report is available in the DOPT website.
Some excerpts of the report which are essential for the consumption of our readers are furnished hereunder. Please read and send your comments to the CHQ.
* The Act of 1972 be amended to authorize any inquiry Officer to exercise powers of enforcement of attendance of witnesses and production of documents during pendency of any Disciplinary Inquiry. In the alternative, the feasibility of achieving the same objective through a suitable provision in the relevant Service Rules may also be examined and, if found feasible, put into effect.
(Para 31)
* Fixing the maximum number of adjournments in the course of a hearing of a Disciplinary Inquiry will put an unnecessary fetter on the bonafide exercise of power by any Inquiry Officer to grant adjournment of hearing in suitable cases. We reiterate that an Inquiry Officer – though appointed by a Disciplinary Authority – must act fairly lest his orders be set aside as being arbitrary and in violation of Article 14 of the Constitution.
(Para 33)
* We recommend that to make up the shortage of competent Inquiry Officers, every Head of Office/Head of the Department may have a list of names and addresses of retired officers who have a reputation for integrity and who are well versed with the service Rules and the instructions in regard to Disciplinary Inquiries. Once the panel of Inquiry Officers is finalized, the Disciplinary Authority may appoint any one out of the panel of names of retired officers as the Inquiry Officer. It must be ensured that a retired officer appointed as an Inquiry officer should have been in a higher grade, when he retired on superannuation, than the delinquent Government Servant facing the Disciplinary Inquiry.
(Para 34)
* As far as practicable, an Inquiry Officer should conduct the hearing on a day-to-day basis to complete the Inquiry expeditiously. Each Inquiry Officer should be required to maintain an order sheet to record proceedings of the Inquiry on the day of Inquiry and other relevant matters. If the Inquiry cannot be conducted on a day-to day basis, the inquiry Officer should record in the order sheet the reasons why the Inquiry could not be held on a day to day basis.
(Para 35)
* We are of the view that the fees paid to the Inquiry Officers, as at present, are not adequate compensation for the arduous nature of work in a Disciplinary Inquiry. We recommend that if a serving officer is appointed as an Inquiry Officer he may be granted an honorarium ranging from Rupees Five Thousand to Rupees Ten Thousand per case. At present a serving officer gets only an honorarium of Rs.3000/- per case if he works as an Inquiry Officer in addition to his duties.
[Para 37 (a)]
* In case of a retired officer appointed as an Inquiry Officer, the honorarium may vary from Rupees Fifteen Thousand to Rupees Seventy Five Thousand per case.
[Para 37 (b)]
* A retired officer who is appointed as an Inquiry Officer may also get a consolidated transport allowance of Rupees Fifteen Thousand to Rupees Forty Thousand per case so that he is not out‐of‐pocket. In cases where assistance of a steno‐typist is not given to a retired officer appointed as an Inquiry officer, the Disciplinary Authority may sanction upto Rs.30,000 as an allowance per case for stenographic assistance depending on the volume of paper work in the case. If either a serving or a retired officer does not complete the Disciplinary Inquiry within the time‐frame recommended by us, the Disciplinary Authority may reduce the amount of honorarium and allowances as per his discretion.
[Para 37 (d)]
* We recommend that in the matter of payment of honorarium and allowances to serving and retired officers appointed as Inquiry Officers, the decision of the Disciplinary Authority shall be final and he need not seek any other approval for payment of honorarium once the scale of honorarium is fixed by the Department of Personnel and Training, Government of India.
[Para 37 (e)]
* In all other cases involving payment of the expenses to witnesses who are retired Government Servants, these would be borne by the Department that appointed the Inquiry Officer, ensuring that, as far as possible, the payment is made upon completion of the testimony and not delayed unduly.
[Para 38 (d)]
* We also reiterate that the panels thus prepared should desirably comprise officers of varying levels of seniority in order that inquiries pertaining to different grades of delinquent Government Servants could be entrusted to them.
[Para 39 (c)]
* We also recommend an honorarium of Rupees Five Thousand to Rupees Ten Thousand for a Serving Officer who is a Presenting Officer for each case of Disciplinary Inquiry. If a retired officer is appointed as the Presenting Officer, he may be granted an honorarium ranging from 15,000/‐ to 25,000/‐ per Disciplinary Inquiry. Appointment of competent retired officers as Presenting Officers is recommended by us as far as possible since serving officers are sometimes transferred during pendency of a Disciplinary Inquiry, causing a lot of dislocation and delay in the Inquiry.
(Para 42)
* In our opinion, there should be no embargo on the number of cases in which a serving or retired officer can be an Inquiry Officer or a Presenting Officer and the matter be best left to the discretion of the Disciplinary Authority. As the entire exercise in a Disciplinary Inquiry is to achieve expeditious disposal, the Disciplinary Authority should be given full powers to appoint anyone in the panel of names as an Inquiry Officer or a Presenting Officer and to fix the honorarium and other allowances within the limits recommended by us. We may, however, observe that it would be difficult for a retired officer to be the Inquiry Officer or a Presenting Officer in more than three Disciplinary Inquiries at a time.
(Para 44)
* We recommend that if the Disciplinary Authority decides to impose a minor penalty, he can do so in a minor penalty Disciplinary Inquiry on the basis of explanation of the delinquent Government Servant to the Articles of Charge and no elaborate Inquiry, envisaged in the Service Rules as at present, should be necessary.
(Para 45)
* In our view, a minor penalty Disciplinary Inquiry can be concluded within a maximum period of sixty days from the date of service of the Articles of Charge. In our opinion, a minor penalty swiftly but judiciously imposed by a Disciplinary Authority is much more effective than a major penalty imposed after years spent on a protracted Inquiry.
(Para 46)
* We feel that until such time as Statutory Vigilance Commissions on the lines of the CVC come into existence in all the States, the dispensation proposed by us, viz., prior consultation with the UPSC before imposition of a minor penalty on officers belonging to the All‐India Services and serving in connection with affairs of a State should continue to operate.
[Para 47 (b)]
* For major penalty Inquiries as envisaged in Article 311(2) of the Constitution, where the Inquiry Officer has to do a detailed inquiry into the Articles of Charge by examination of witnesses both of the Presenting Officer and of the delinquent Government Servant and where relevant documents have to be examined/exhibited for a just decision in the case, the maximum time could be twelve months from the date of service of the Articles of Charge before the case records are referred to the UPSC for advice under Article 320(3)(c) of the Constitution. Hopefully, if the UPSC takes a maximum period of five to six months to give its considered advice, the Disciplinary Inquiry for a major penalty can be concluded within a maximum period of eighteen months.
(Para 48)
* We recommend that the CVC need be consulted for the first stage advice only and need not be consulted for the second stage advice.
(Para 54)
* We do not recommend dispensing with second stage advice of the CVC in cases of the Central Public Sector Undertakings and the Nationalized Banks as in such cases reference to the UPSC under Article 320(3)(c) is not a stipulated requirement.
(Para 57)
* We reiterate our recommendation that in disciplinary matters relating to minor penalties prior consultation with the UPSC may not be required under Article 320(3)(c) of the Constitution except for officers of the All‐India Services serving in connection with affairs of a state.
(Para 60)
* 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.
(Para 64)
* 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 of integrity 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.
(Para 65)
* Fixing the maximum number of adjournments in the course of a hearing of a Disciplinary Inquiry will put an unnecessary fetter on the bonafide exercise of power by any Inquiry Officer to grant adjournment of hearing in suitable cases. We reiterate that an Inquiry Officer – though appointed by a Disciplinary Authority – must act fairly lest his orders be set aside as being arbitrary and in violation of Article 14 of the Constitution.
(Para 33)
* We recommend that to make up the shortage of competent Inquiry Officers, every Head of Office/Head of the Department may have a list of names and addresses of retired officers who have a reputation for integrity and who are well versed with the service Rules and the instructions in regard to Disciplinary Inquiries. Once the panel of Inquiry Officers is finalized, the Disciplinary Authority may appoint any one out of the panel of names of retired officers as the Inquiry Officer. It must be ensured that a retired officer appointed as an Inquiry officer should have been in a higher grade, when he retired on superannuation, than the delinquent Government Servant facing the Disciplinary Inquiry.
(Para 34)
* As far as practicable, an Inquiry Officer should conduct the hearing on a day-to-day basis to complete the Inquiry expeditiously. Each Inquiry Officer should be required to maintain an order sheet to record proceedings of the Inquiry on the day of Inquiry and other relevant matters. If the Inquiry cannot be conducted on a day-to day basis, the inquiry Officer should record in the order sheet the reasons why the Inquiry could not be held on a day to day basis.
(Para 35)
* We are of the view that the fees paid to the Inquiry Officers, as at present, are not adequate compensation for the arduous nature of work in a Disciplinary Inquiry. We recommend that if a serving officer is appointed as an Inquiry Officer he may be granted an honorarium ranging from Rupees Five Thousand to Rupees Ten Thousand per case. At present a serving officer gets only an honorarium of Rs.3000/- per case if he works as an Inquiry Officer in addition to his duties.
[Para 37 (a)]
* In case of a retired officer appointed as an Inquiry Officer, the honorarium may vary from Rupees Fifteen Thousand to Rupees Seventy Five Thousand per case.
[Para 37 (b)]
* A retired officer who is appointed as an Inquiry Officer may also get a consolidated transport allowance of Rupees Fifteen Thousand to Rupees Forty Thousand per case so that he is not out‐of‐pocket. In cases where assistance of a steno‐typist is not given to a retired officer appointed as an Inquiry officer, the Disciplinary Authority may sanction upto Rs.30,000 as an allowance per case for stenographic assistance depending on the volume of paper work in the case. If either a serving or a retired officer does not complete the Disciplinary Inquiry within the time‐frame recommended by us, the Disciplinary Authority may reduce the amount of honorarium and allowances as per his discretion.
[Para 37 (d)]
* We recommend that in the matter of payment of honorarium and allowances to serving and retired officers appointed as Inquiry Officers, the decision of the Disciplinary Authority shall be final and he need not seek any other approval for payment of honorarium once the scale of honorarium is fixed by the Department of Personnel and Training, Government of India.
[Para 37 (e)]
* In all other cases involving payment of the expenses to witnesses who are retired Government Servants, these would be borne by the Department that appointed the Inquiry Officer, ensuring that, as far as possible, the payment is made upon completion of the testimony and not delayed unduly.
[Para 38 (d)]
* We also reiterate that the panels thus prepared should desirably comprise officers of varying levels of seniority in order that inquiries pertaining to different grades of delinquent Government Servants could be entrusted to them.
[Para 39 (c)]
* We also recommend an honorarium of Rupees Five Thousand to Rupees Ten Thousand for a Serving Officer who is a Presenting Officer for each case of Disciplinary Inquiry. If a retired officer is appointed as the Presenting Officer, he may be granted an honorarium ranging from 15,000/‐ to 25,000/‐ per Disciplinary Inquiry. Appointment of competent retired officers as Presenting Officers is recommended by us as far as possible since serving officers are sometimes transferred during pendency of a Disciplinary Inquiry, causing a lot of dislocation and delay in the Inquiry.
(Para 42)
* In our opinion, there should be no embargo on the number of cases in which a serving or retired officer can be an Inquiry Officer or a Presenting Officer and the matter be best left to the discretion of the Disciplinary Authority. As the entire exercise in a Disciplinary Inquiry is to achieve expeditious disposal, the Disciplinary Authority should be given full powers to appoint anyone in the panel of names as an Inquiry Officer or a Presenting Officer and to fix the honorarium and other allowances within the limits recommended by us. We may, however, observe that it would be difficult for a retired officer to be the Inquiry Officer or a Presenting Officer in more than three Disciplinary Inquiries at a time.
(Para 44)
* We recommend that if the Disciplinary Authority decides to impose a minor penalty, he can do so in a minor penalty Disciplinary Inquiry on the basis of explanation of the delinquent Government Servant to the Articles of Charge and no elaborate Inquiry, envisaged in the Service Rules as at present, should be necessary.
(Para 45)
* In our view, a minor penalty Disciplinary Inquiry can be concluded within a maximum period of sixty days from the date of service of the Articles of Charge. In our opinion, a minor penalty swiftly but judiciously imposed by a Disciplinary Authority is much more effective than a major penalty imposed after years spent on a protracted Inquiry.
(Para 46)
* We feel that until such time as Statutory Vigilance Commissions on the lines of the CVC come into existence in all the States, the dispensation proposed by us, viz., prior consultation with the UPSC before imposition of a minor penalty on officers belonging to the All‐India Services and serving in connection with affairs of a State should continue to operate.
[Para 47 (b)]
* For major penalty Inquiries as envisaged in Article 311(2) of the Constitution, where the Inquiry Officer has to do a detailed inquiry into the Articles of Charge by examination of witnesses both of the Presenting Officer and of the delinquent Government Servant and where relevant documents have to be examined/exhibited for a just decision in the case, the maximum time could be twelve months from the date of service of the Articles of Charge before the case records are referred to the UPSC for advice under Article 320(3)(c) of the Constitution. Hopefully, if the UPSC takes a maximum period of five to six months to give its considered advice, the Disciplinary Inquiry for a major penalty can be concluded within a maximum period of eighteen months.
(Para 48)
* We recommend that the CVC need be consulted for the first stage advice only and need not be consulted for the second stage advice.
(Para 54)
* We do not recommend dispensing with second stage advice of the CVC in cases of the Central Public Sector Undertakings and the Nationalized Banks as in such cases reference to the UPSC under Article 320(3)(c) is not a stipulated requirement.
(Para 57)
* We reiterate our recommendation that in disciplinary matters relating to minor penalties prior consultation with the UPSC may not be required under Article 320(3)(c) of the Constitution except for officers of the All‐India Services serving in connection with affairs of a state.
(Para 60)
* 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.
(Para 64)
* 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 of integrity 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.
(Para 65)
* “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.
(Para 66)
* 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:
(Para 67)
* 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.
[Para 67 (a)]
* 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.
[Para 67(b)]
* We agree that the major penalty of compulsory retirement from service, as it exists at present in the Service Rules, may not be a stiff penalty in view of the admissibility of full post‐retirement benefits. If the penalty were to be suitably modified to include not only compulsory retirement but also, in appropriate cases, forfeiture of gratuity and a cut in monthly pension subject to a minimum of 10% and a maximum of 50%, the penalty will acquire a lot of teeth. We, therefore, recommend that compulsory retirement as a major penalty be retained in the existing list of major penalties with a cut in pension and forfeiture of gratuity as recommended by us.
(Para 69)
* We suggest necessary modification in this minor penalty following the recommendation of the Sixth Central Pay Commission for introduction of a pay band with grade pay.
[Para 70 (iv)]
* This major penalty is also required to be modified suitably pursuant to introduction of pay band with grade pay for a post
[Para 70 (v)]
* The language of this major penalty will also undergo modification pursuant to introduction of pay band and grade pay for a post after acceptance of recommendations of the Sixth Central Pay Commission
[Para 70 (vi)]
* We have proposed retention of this major penalty (compulsory retirement) with a minimum of 10% and maximum of 50% cut in pension and admissible gratuity in appropriate cases.
[Para 70 (viii)]
* We have observations to make on some of the minor penalties such as (iii)(a) above introduced by a Notification on 23 August 2004, which is as follows:
“reduction to a lower post or time‐scale or to a lower stage in timescale of pay by one stage for a period not exceeding three years without cumulative effect and not affecting his pension.”
(Para 72)
(Para 66)
* 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:
(Para 67)
* 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.
[Para 67 (a)]
* 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.
[Para 67(b)]
* We agree that the major penalty of compulsory retirement from service, as it exists at present in the Service Rules, may not be a stiff penalty in view of the admissibility of full post‐retirement benefits. If the penalty were to be suitably modified to include not only compulsory retirement but also, in appropriate cases, forfeiture of gratuity and a cut in monthly pension subject to a minimum of 10% and a maximum of 50%, the penalty will acquire a lot of teeth. We, therefore, recommend that compulsory retirement as a major penalty be retained in the existing list of major penalties with a cut in pension and forfeiture of gratuity as recommended by us.
(Para 69)
* We suggest necessary modification in this minor penalty following the recommendation of the Sixth Central Pay Commission for introduction of a pay band with grade pay.
[Para 70 (iv)]
* This major penalty is also required to be modified suitably pursuant to introduction of pay band with grade pay for a post
[Para 70 (v)]
* The language of this major penalty will also undergo modification pursuant to introduction of pay band and grade pay for a post after acceptance of recommendations of the Sixth Central Pay Commission
[Para 70 (vi)]
* We have proposed retention of this major penalty (compulsory retirement) with a minimum of 10% and maximum of 50% cut in pension and admissible gratuity in appropriate cases.
[Para 70 (viii)]
* We have observations to make on some of the minor penalties such as (iii)(a) above introduced by a Notification on 23 August 2004, which is as follows:
“reduction to a lower post or time‐scale or to a lower stage in timescale of pay by one stage for a period not exceeding three years without cumulative effect and not affecting his pension.”
(Para 72)
* The Constitution provides in Article 311 that reduction in rank is one of the three penalties – the two other being removal or dismissal from service ‐ which can be imposed only after an Inquiry as envisaged under Article 311(2). In the relevant Service Rules, dismissal or removal from service and reduction in rank are called major penalties.
(Para 73)
* In view of the clear constitutional stipulation as aforesaid, the minor penalty at (iii)(a) introduced in August 2004, may not be able to stand judicial scrutiny as a minor penalty. It is relevant to mention that reduction in rank can occur even if a Govt. servant is reduced one lower stage in the time scale of pay for a period not exceeding three years as in the minor penalty at iii (a) above.
(Para 74)
* In view of the ticklish legal implication of a minor penalty as in (iii)(a) above, Government may like to consider and decide whether the aforesaid penalty can be retained as a minor penalty. In our opinion, (iii)(a) above cannot be retained as a minor penalty as it has the attributes of the major penalty of reduction in rank.
(Para 75)
* We recommend that the minor penalty of withholding of promotion can be imposed at any stage of the delinquent Government Servant’s career. It will, however, take effect from the date the Government Servant next below to the delinquent Government Servant in seniority is promoted on regular basis to the higher post.
(Para 77)
* As the penalty of withholding of his promotion for a long period is likely to demotivate an officer in the performance of his duties with dedication and sincerity, we recommend that, in suitable cases, the minor penalty of withholding of promotion can be imposed for a maximum period of four years.
(Para 78)
We recommend that a minor penalty Disciplinary Inquiry, if not concluded before the Government Servant retires on superannuation, would be deemed to continue as a minor penalty proceeding even after retirement of the delinquent Government Servant from service on superannuation with the stipulation that in such deemed proceedings, not more than 20 per cent cut can be made in monthly pension and not more than 20 per cent forfeiture can be made in the admissible gratuity. Even though the minor penalty recommended by us would affect monthly pension/admissible gratuity, prior approval of the President should not be necessary for imposition of such a minor penalty. We have recommended such a measure because, when a delinquent Government Servant is close to the age of superannuation, theDisciplinary Authority realises that no minor penalty except the minor penalty of “Censure” can be imposed as any other minor penalty would have an adverse effect on the pension of the delinquent Government Servant.
(Para 81)
* We recommend that the penalty of censure may have a currency of one year only from the date of imposition.
(Para 84)
* We have recommended that major penalties of dismissal, removal from service, compulsory retirement and reduction in rank would act as a disqualification for delinquent Government Servants for further employment under either the Government of India or Government of a State. If our recommendation is accepted, no useful purpose would be served by retaining removal from service as one of the major penalties which, under the existing Service Rules, is not a disqualification for further employment under the Government. We recommend that removal from service may be deleted from the list of major penalties under the Service Rules.
[Para 85 (a)]
(Para 73)
* In view of the clear constitutional stipulation as aforesaid, the minor penalty at (iii)(a) introduced in August 2004, may not be able to stand judicial scrutiny as a minor penalty. It is relevant to mention that reduction in rank can occur even if a Govt. servant is reduced one lower stage in the time scale of pay for a period not exceeding three years as in the minor penalty at iii (a) above.
(Para 74)
* In view of the ticklish legal implication of a minor penalty as in (iii)(a) above, Government may like to consider and decide whether the aforesaid penalty can be retained as a minor penalty. In our opinion, (iii)(a) above cannot be retained as a minor penalty as it has the attributes of the major penalty of reduction in rank.
(Para 75)
* We recommend that the minor penalty of withholding of promotion can be imposed at any stage of the delinquent Government Servant’s career. It will, however, take effect from the date the Government Servant next below to the delinquent Government Servant in seniority is promoted on regular basis to the higher post.
(Para 77)
* As the penalty of withholding of his promotion for a long period is likely to demotivate an officer in the performance of his duties with dedication and sincerity, we recommend that, in suitable cases, the minor penalty of withholding of promotion can be imposed for a maximum period of four years.
(Para 78)
We recommend that a minor penalty Disciplinary Inquiry, if not concluded before the Government Servant retires on superannuation, would be deemed to continue as a minor penalty proceeding even after retirement of the delinquent Government Servant from service on superannuation with the stipulation that in such deemed proceedings, not more than 20 per cent cut can be made in monthly pension and not more than 20 per cent forfeiture can be made in the admissible gratuity. Even though the minor penalty recommended by us would affect monthly pension/admissible gratuity, prior approval of the President should not be necessary for imposition of such a minor penalty. We have recommended such a measure because, when a delinquent Government Servant is close to the age of superannuation, theDisciplinary Authority realises that no minor penalty except the minor penalty of “Censure” can be imposed as any other minor penalty would have an adverse effect on the pension of the delinquent Government Servant.
(Para 81)
* We recommend that the penalty of censure may have a currency of one year only from the date of imposition.
(Para 84)
* We have recommended that major penalties of dismissal, removal from service, compulsory retirement and reduction in rank would act as a disqualification for delinquent Government Servants for further employment under either the Government of India or Government of a State. If our recommendation is accepted, no useful purpose would be served by retaining removal from service as one of the major penalties which, under the existing Service Rules, is not a disqualification for further employment under the Government. We recommend that removal from service may be deleted from the list of major penalties under the Service Rules.
[Para 85 (a)]
* We have noted that in spite of stiff penalties under different Service Rules, including removal or dismissal from service for grave misconduct involving lack of integrity or corrupt practice, the common perception is that corruption among Government Servants has been steadily growing. In the Corruption Perception Index published by the Transparency International, India is adversely placed, which, sadly, is not consistent with its aspirations to become a super‐economic power. The situation is rather grim as, in recent years, a number of officers of the All‐India Services, i.e. the Indian Administrative Service, the Indian Police Service and the Indian Forest Service have been either facing trial or have been convicted for corrupt practice. Though different Agencies such as the Central Bureau of Investigation(CBI), the Vigilance Directorates and the Anti‐Corruption Bureaux(ACBs) have been trying their best to check corruption, the effect has not been very remarkable. It is common experience that criminal trials of corrupt Government Servants take such a long time that when they are convicted and sentenced, the impact of such conviction and sentence is either lost or dissipated. Moreover, often the corrupt Government Servant goes on appeal to higher courts, which take their own time to dispose of the matter. The net result is growing cynicism in the country that for a corrupt government servant, corruption is a low‐risk venture.
(Para 86)
* Against such a backdrop of pronouncements by the Supreme Court and the urgency to get rid of allegedly corrupt Government Servants, we propose an amendment to Article 311 of the Constitution to embody this principle of post‐decisional hearing after a delinquent Government Servant’s dismissal from service under the relevant Service Rules. In other words, the proposed amendment to Article 311 will provide that if a charge sheet under Section 173 of the Code of Criminal Procedure is submitted against a Government Servant for an offence under the Prevention of Corruption Act 1988 and the Court frames charge against the Government Servant as an accused and the President or the Governor, as the case may be, is satisfied that urgent action in the public interest is necessary, the President or the Governor, as the case may be, shall pass an order dismissing the delinquent Government Servant from service under the relevant Service Rules pending the criminal trial.
(Para 95)
* We recommend a further safeguard to the Government Servants from motivated and hasty or ill‐considered charges before the Courts in the form of an independent Advisory Board which would scrutinize the charge‐sheet, the evidence gathered by the investigating agency and representation of the Government Servant against the charge‐sheet and advise the President/Governor through the CVC as to whether there is a prima facie case against the Government Servant. The sanction of prosecution would be based on such advice by the independent Advisory Board. If the Advisory Board considers that the evidence presented by the investigating agency does not merit a charge‐sheet in a criminal trial, it may advise the CVC that a major penalty Disciplinary Inquiry against the Government Servant is warranted in the case. The Advisory Board, in such a contingency, may also advise whether the evidence against the Government Servant, even if it does not merit a criminal case, is adequate to warrant dismissal/removal by the Disciplinary Authority followed by a post‐decisional hearing. The CVC, after due consideration of such advice of the Advisory Board, would render its advice to the Disciplinary Authority on the dismissal and prosecution of the Government Servant or for initiation of major penalty Inquiry against him for a post decisional hearing after he is dismissed from service pending the hearing.
[Para 96 (b)]
* The composition of the Advisory Boards to advise the CVC and the Government of a State would be different. They may comprise retired Judges of the Supreme Court and retired Judges of the High Courts, retired District Judges(who had tried CBI cases against Government Servants) and retired Secretaries/retired Additional Secretaries/retired Joint Secretaries to the Government of India or officers of equivalent ranks. The Advisory Boards would be constituted with the stipulation that only a former Judge of the Supreme Court would be the Chairman of the Advisory Board in respect of the CVC and a former Judge of a High Court would be the Chairman of the Advisory Board in case of officers of a State Government of Class I or Class II (other than officers of the All‐India Services Service serving in connection with affairs of a State). (b) The modalities of appointment of Chairman/Members of the Advisory Board for the CVC will be decided by the Department of Personnel and Training, Government of India in consultation with the Chief Justice of India. The General Administration Department/the Appointment Department/the Personnel Department in the State Governments may similarly decide the modalities of the appointments of Chairman and Members of the Advisory Boards for State Government Servants of Class I and Class II in consultation with the Chief Justice of the High Court having jurisdiction. The Advisory Boards will have a tenure of a minimum period of two years from the date of their constitution. In appropriate cases, the Department of Personnel and Training, Government of India or the concerned Department of the State Government can change the incumbents of the Advisory Boards for reasons to be recorded in writing after concurrence of the Chief Justice of India or the Chief Justice of the High Court, as the case may be. The Chairman and Members of the Advisory Boards will have the same salary and perquisites admissible to them when they were holding office as Judges of the Supreme Court/High Courts.
[Para 97 (a)]
* It is expected that the Advisory Boards would act in a time‐bound manner and advise the CVC/State Governments in specific cases within a maximum period of three weeks of receipt of the representation of the delinquent Government Servant to the copy of the charge sheet sent to him by the Advisory Board. In our view, constitution of Advisory Boards with high ranking functionaries is likely to eliminate any possibility of wrong prosecution by the CBI/the Vigilance Directorate/the ACB and Government Servants will have a greater sense of protection. In our view, corruption among Government Servants can be adequately checked if the genuinely corrupt are penalized swiftly and the genuinely honest do not face harassment only because they took bold decisions in the public interest and did not follow the Rule Book scrupulously.
[Para 97 (c)]
* We recommend that the Government of India/a State Government may consider payment of compassionate monthly allowance at par with monthly subsistence allowance during suspension from service. We have noted that under the existing Pension rules, there is a provision for payment of compassionate monthly allowance even to a dismissed Government Servant. Such monthly compassionate allowance is not less than the monthly subsistence allowance payable to a Government Servant during suspension from service.
(Para 102)
* We are of the view that the amendment to Article 311 of the Constitution proposed by us will be welcomed by the media, the Political Executive, the honest Government Servants and also by the vast mass of common people of the country who at present see no light at the end of the tunnel of increasing corrupt practice.
(Para 103)
* We suggest that the Departments/Ministries should dispose of by 30 November 2010 all pending cases after recording speaking orders in each case. In the event of any case for sanction of prosecution not getting disposed of by the Department/Ministry by the aforesaid deadline of 30 November 2010, a Committee chaired by the Secretary, Department of Personnel & Training, Government of India as provided for in the Office Memorandum of the Department of Personnel & Training dated 06 November 2006 may meet and finalize the issue of sanction of prosecution through a speaking order after obtaining the order of the Prime Minister as the Minister‐in‐charge.
(Para 108)
* We could not have access to data as to how many officers in Government of India are at present denied deputation/promotion because of criminal cases under investigation, because of pendency of Disciplinary Inquiries or because criminal cases against them are sub‐judice.
(Para 112)
(Para 86)
* Against such a backdrop of pronouncements by the Supreme Court and the urgency to get rid of allegedly corrupt Government Servants, we propose an amendment to Article 311 of the Constitution to embody this principle of post‐decisional hearing after a delinquent Government Servant’s dismissal from service under the relevant Service Rules. In other words, the proposed amendment to Article 311 will provide that if a charge sheet under Section 173 of the Code of Criminal Procedure is submitted against a Government Servant for an offence under the Prevention of Corruption Act 1988 and the Court frames charge against the Government Servant as an accused and the President or the Governor, as the case may be, is satisfied that urgent action in the public interest is necessary, the President or the Governor, as the case may be, shall pass an order dismissing the delinquent Government Servant from service under the relevant Service Rules pending the criminal trial.
(Para 95)
* We recommend a further safeguard to the Government Servants from motivated and hasty or ill‐considered charges before the Courts in the form of an independent Advisory Board which would scrutinize the charge‐sheet, the evidence gathered by the investigating agency and representation of the Government Servant against the charge‐sheet and advise the President/Governor through the CVC as to whether there is a prima facie case against the Government Servant. The sanction of prosecution would be based on such advice by the independent Advisory Board. If the Advisory Board considers that the evidence presented by the investigating agency does not merit a charge‐sheet in a criminal trial, it may advise the CVC that a major penalty Disciplinary Inquiry against the Government Servant is warranted in the case. The Advisory Board, in such a contingency, may also advise whether the evidence against the Government Servant, even if it does not merit a criminal case, is adequate to warrant dismissal/removal by the Disciplinary Authority followed by a post‐decisional hearing. The CVC, after due consideration of such advice of the Advisory Board, would render its advice to the Disciplinary Authority on the dismissal and prosecution of the Government Servant or for initiation of major penalty Inquiry against him for a post decisional hearing after he is dismissed from service pending the hearing.
[Para 96 (b)]
* The composition of the Advisory Boards to advise the CVC and the Government of a State would be different. They may comprise retired Judges of the Supreme Court and retired Judges of the High Courts, retired District Judges(who had tried CBI cases against Government Servants) and retired Secretaries/retired Additional Secretaries/retired Joint Secretaries to the Government of India or officers of equivalent ranks. The Advisory Boards would be constituted with the stipulation that only a former Judge of the Supreme Court would be the Chairman of the Advisory Board in respect of the CVC and a former Judge of a High Court would be the Chairman of the Advisory Board in case of officers of a State Government of Class I or Class II (other than officers of the All‐India Services Service serving in connection with affairs of a State). (b) The modalities of appointment of Chairman/Members of the Advisory Board for the CVC will be decided by the Department of Personnel and Training, Government of India in consultation with the Chief Justice of India. The General Administration Department/the Appointment Department/the Personnel Department in the State Governments may similarly decide the modalities of the appointments of Chairman and Members of the Advisory Boards for State Government Servants of Class I and Class II in consultation with the Chief Justice of the High Court having jurisdiction. The Advisory Boards will have a tenure of a minimum period of two years from the date of their constitution. In appropriate cases, the Department of Personnel and Training, Government of India or the concerned Department of the State Government can change the incumbents of the Advisory Boards for reasons to be recorded in writing after concurrence of the Chief Justice of India or the Chief Justice of the High Court, as the case may be. The Chairman and Members of the Advisory Boards will have the same salary and perquisites admissible to them when they were holding office as Judges of the Supreme Court/High Courts.
[Para 97 (a)]
* It is expected that the Advisory Boards would act in a time‐bound manner and advise the CVC/State Governments in specific cases within a maximum period of three weeks of receipt of the representation of the delinquent Government Servant to the copy of the charge sheet sent to him by the Advisory Board. In our view, constitution of Advisory Boards with high ranking functionaries is likely to eliminate any possibility of wrong prosecution by the CBI/the Vigilance Directorate/the ACB and Government Servants will have a greater sense of protection. In our view, corruption among Government Servants can be adequately checked if the genuinely corrupt are penalized swiftly and the genuinely honest do not face harassment only because they took bold decisions in the public interest and did not follow the Rule Book scrupulously.
[Para 97 (c)]
* We recommend that the Government of India/a State Government may consider payment of compassionate monthly allowance at par with monthly subsistence allowance during suspension from service. We have noted that under the existing Pension rules, there is a provision for payment of compassionate monthly allowance even to a dismissed Government Servant. Such monthly compassionate allowance is not less than the monthly subsistence allowance payable to a Government Servant during suspension from service.
(Para 102)
* We are of the view that the amendment to Article 311 of the Constitution proposed by us will be welcomed by the media, the Political Executive, the honest Government Servants and also by the vast mass of common people of the country who at present see no light at the end of the tunnel of increasing corrupt practice.
(Para 103)
* We suggest that the Departments/Ministries should dispose of by 30 November 2010 all pending cases after recording speaking orders in each case. In the event of any case for sanction of prosecution not getting disposed of by the Department/Ministry by the aforesaid deadline of 30 November 2010, a Committee chaired by the Secretary, Department of Personnel & Training, Government of India as provided for in the Office Memorandum of the Department of Personnel & Training dated 06 November 2006 may meet and finalize the issue of sanction of prosecution through a speaking order after obtaining the order of the Prime Minister as the Minister‐in‐charge.
(Para 108)
* We could not have access to data as to how many officers in Government of India are at present denied deputation/promotion because of criminal cases under investigation, because of pendency of Disciplinary Inquiries or because criminal cases against them are sub‐judice.
(Para 112)
* In our view, the Government of India, which is a model employer, should review the present instructions regarding denial of deputation or promotion to such officers even though there is a “Sealed Cover” procedure for such officers as approved in the judgment of the Supreme Court in Union of India versus K. V. Janakiraman(AIR 1991 SC 2010).
(Para 113)
* An important point to be noted is that the aforesaid judgment in Janakiraman’s case(supra) stipulates that “sealed cover” procedure is to be adopted after submission of charge sheet and not before it. The existing instructions of the Government of India are, however, different. Even when a criminal case is pending investigation or a Disciplinary Inquiry is contemplated against a Government Servant he does not get the “integrity certificate” from the Department/Ministry and consequently he cannot be considered for promotion – a situation not envisaged by the Supreme Court in Janakiraman’s case (supra).
(Para 114)
* Whereas we whole‐heartedly endorse the action of the Government to penalize and punish delinquent Government Servants, it may be considered whether an appropriate mechanism can be put in place in the following cases by modification of the existing instructions.
(Para 115)
* We recommend that if the investigation gets delayed beyond one year from the date of the FIR, the case may be reviewed again at periodic intervals of six months to decide whether to give him clearance for deputation/promotion.
[Para 115 (i)]
* A similar course of action may be taken if a pending Disciplinary Inquiry is not over within eighteen months of the date of service of Articles of Charge on a delinquent officer in a major penalty Disciplinary Inquiry or within two months of the date of service of Articles of Charge in a minor penalty Disciplinary Inquiry.
[Para 115 (ii)]
* We recommend that the officer should not be considered for deputation/promotion until the final disposal of the pending criminal case against him under the Prevention of Corruption Act 1988 or the final disposal of a pending minor/major penalty Disciplinary Inquiry against him if the Articles of Charge have been served on him and the stipulated period of two months or eighteen months, as aforesaid, or any other extended period, is not over.
[Para 115 (iii)]
* We recommend that in all such cases as of now, where Disciplinary Inquiry has been under contemplation for more than one year, the Disciplinary Authority should take a final decision by 31 December 2010, whether he would like to go ahead with the Disciplinary Inquiry or close the Inquiry under contemplation. If the Disciplinary Authority wants to go ahead with the Disciplinary Inquiry, the Articles of Charge in such pending cases must be served on the delinquent Government Servant not later than 31 January 2011. In appropriate cases, if the Disciplinary Inquiry under contemplation is not initiated, the matter should be closed on the orders of the Disciplinary Authority by 31 October 2010.
[Para 116 (b)]
* We recommend that a panel of names of retired Secretaries to the Government of India or officers of equivalent rank be prepared by the Department of Personnel and Training, and any major penalty inquiry against a high‐ranking delinquent Central Government Servant/delinquent officer of the All‐India Services serving under the Central Government or in connection with affairs of a state, be entrusted to a member of such a panel to facilitate fast track disposal.
(Para 117)
(Para 113)
* An important point to be noted is that the aforesaid judgment in Janakiraman’s case(supra) stipulates that “sealed cover” procedure is to be adopted after submission of charge sheet and not before it. The existing instructions of the Government of India are, however, different. Even when a criminal case is pending investigation or a Disciplinary Inquiry is contemplated against a Government Servant he does not get the “integrity certificate” from the Department/Ministry and consequently he cannot be considered for promotion – a situation not envisaged by the Supreme Court in Janakiraman’s case (supra).
(Para 114)
* Whereas we whole‐heartedly endorse the action of the Government to penalize and punish delinquent Government Servants, it may be considered whether an appropriate mechanism can be put in place in the following cases by modification of the existing instructions.
(Para 115)
* We recommend that if the investigation gets delayed beyond one year from the date of the FIR, the case may be reviewed again at periodic intervals of six months to decide whether to give him clearance for deputation/promotion.
[Para 115 (i)]
* A similar course of action may be taken if a pending Disciplinary Inquiry is not over within eighteen months of the date of service of Articles of Charge on a delinquent officer in a major penalty Disciplinary Inquiry or within two months of the date of service of Articles of Charge in a minor penalty Disciplinary Inquiry.
[Para 115 (ii)]
* We recommend that the officer should not be considered for deputation/promotion until the final disposal of the pending criminal case against him under the Prevention of Corruption Act 1988 or the final disposal of a pending minor/major penalty Disciplinary Inquiry against him if the Articles of Charge have been served on him and the stipulated period of two months or eighteen months, as aforesaid, or any other extended period, is not over.
[Para 115 (iii)]
* We recommend that in all such cases as of now, where Disciplinary Inquiry has been under contemplation for more than one year, the Disciplinary Authority should take a final decision by 31 December 2010, whether he would like to go ahead with the Disciplinary Inquiry or close the Inquiry under contemplation. If the Disciplinary Authority wants to go ahead with the Disciplinary Inquiry, the Articles of Charge in such pending cases must be served on the delinquent Government Servant not later than 31 January 2011. In appropriate cases, if the Disciplinary Inquiry under contemplation is not initiated, the matter should be closed on the orders of the Disciplinary Authority by 31 October 2010.
[Para 116 (b)]
* We recommend that a panel of names of retired Secretaries to the Government of India or officers of equivalent rank be prepared by the Department of Personnel and Training, and any major penalty inquiry against a high‐ranking delinquent Central Government Servant/delinquent officer of the All‐India Services serving under the Central Government or in connection with affairs of a state, be entrusted to a member of such a panel to facilitate fast track disposal.
(Para 117)
* 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.
(Para 120)
* We understand the CVC is formulating a Standard Operating Procedure (SOP) governing preliminary investigation by the Vigilance Agencies which would not only simplify and expedite a Disciplinary Inquiry but also make it objective, fair and just. The allegedly delinquent official in this procedure will be given ample opportunity to peruse the documents being relied upon against him as also to explain his point of view. This will also ensure that no honest official is harassed, for extraneous reasons, by baseless disciplinary action. We hope the proposed SOP will be brought into force soon by the CVC.
(Para 121)
* The other trend that has attracted our attention is the increasing number of instances where members of the All‐India Services are found in possession of mind‐boggling sums of money and of equally mind‐boggling assets totally disproportionate to their known sources of income. While this unfortunate situation is commonly perceived to be the result of an unholy alliance between the unscrupulous and powerful political elements in the State Government on the one hand and, on the other, of similar elements within the All‐India Services, it would not be untrue to aver that the delays that occur in bringing such delinquent officials to justice contribute significantly to a somewhat alarming state of affairs.
(Para 126)
* We now propose to deal with a suitable Monitoring Agency to ensure that our recommendation regarding time limit of disposal of different categories of Disciplinary Inquiries is adhered to. We have noted that at present no consolidated database of pending Disciplinary Inquiries exists in the Central Government and no apex Monitoring Agency is in place to review the progress of disposal of Disciplinary Inquiries in all Departments/Ministries.
(Para 129)
* We also recommend that for each Department/Ministry, there could be a Monitoring Cell to review the progress of all Disciplinary Inquiries. The Secretary of the Department/Ministry may take such steps as deemed fit to galvanise the Disciplinary Authorities under him to dispose of the Disciplinary Inquiries within the time frame recommended by us.
(Para 131)
* We recommend that a separate column may be incorporated in the Annual Performance Appraisal Report (APAR) regarding the number of inquiries handled by an officer reported upon and the number of Inquiries in which an officer has acted as the Presenting Officer. In the self‐assessment report, the officers reported upon will indicate his performance – both in terms of quantity and quality – in disposal of Disciplinary Inquiry cases or his role as a Presenting Officer in such cases. The Reporting and Reviewing Officers will comment on this particular aspect of self‐appraisal.
(Para 132)
* We recommend that the Institute of Secretariat Training and Management (ISTM) under the Department of Personnel and Training, Government of India will bring out an updated Handbook incorporating the latest Service Laws, the statutory notifications and the Executive Instructions.
(Para 137)
THE ABOVE ARE NOT EXHAUSTIVE. PLEASE GO THROUGH THE FULL REPORT CONTAINS VARIOUS INFORMATIONS
(Para 120)
* We understand the CVC is formulating a Standard Operating Procedure (SOP) governing preliminary investigation by the Vigilance Agencies which would not only simplify and expedite a Disciplinary Inquiry but also make it objective, fair and just. The allegedly delinquent official in this procedure will be given ample opportunity to peruse the documents being relied upon against him as also to explain his point of view. This will also ensure that no honest official is harassed, for extraneous reasons, by baseless disciplinary action. We hope the proposed SOP will be brought into force soon by the CVC.
(Para 121)
* The other trend that has attracted our attention is the increasing number of instances where members of the All‐India Services are found in possession of mind‐boggling sums of money and of equally mind‐boggling assets totally disproportionate to their known sources of income. While this unfortunate situation is commonly perceived to be the result of an unholy alliance between the unscrupulous and powerful political elements in the State Government on the one hand and, on the other, of similar elements within the All‐India Services, it would not be untrue to aver that the delays that occur in bringing such delinquent officials to justice contribute significantly to a somewhat alarming state of affairs.
(Para 126)
* We now propose to deal with a suitable Monitoring Agency to ensure that our recommendation regarding time limit of disposal of different categories of Disciplinary Inquiries is adhered to. We have noted that at present no consolidated database of pending Disciplinary Inquiries exists in the Central Government and no apex Monitoring Agency is in place to review the progress of disposal of Disciplinary Inquiries in all Departments/Ministries.
(Para 129)
* We also recommend that for each Department/Ministry, there could be a Monitoring Cell to review the progress of all Disciplinary Inquiries. The Secretary of the Department/Ministry may take such steps as deemed fit to galvanise the Disciplinary Authorities under him to dispose of the Disciplinary Inquiries within the time frame recommended by us.
(Para 131)
* We recommend that a separate column may be incorporated in the Annual Performance Appraisal Report (APAR) regarding the number of inquiries handled by an officer reported upon and the number of Inquiries in which an officer has acted as the Presenting Officer. In the self‐assessment report, the officers reported upon will indicate his performance – both in terms of quantity and quality – in disposal of Disciplinary Inquiry cases or his role as a Presenting Officer in such cases. The Reporting and Reviewing Officers will comment on this particular aspect of self‐appraisal.
(Para 132)
* We recommend that the Institute of Secretariat Training and Management (ISTM) under the Department of Personnel and Training, Government of India will bring out an updated Handbook incorporating the latest Service Laws, the statutory notifications and the Executive Instructions.
(Para 137)
THE ABOVE ARE NOT EXHAUSTIVE. PLEASE GO THROUGH THE FULL REPORT CONTAINS VARIOUS INFORMATIONS
- Kayveeyes, General Secretary, P3
Dated – 09.09.2010
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