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DISCIPLINE/MISCONDUCT- CONCEPT, MEANING, CONNOTATION & DEFINITION

1. The word discipline has been defined in Websters Third New International Dictionary to mean-behaviour in

accordance with the rules (as of an organization)-orderly conduct-a rule or system of rules governing conduct or action-a body of laws relating to conduct-an orderly or regular pattern of behaviour. The word disciplinary, inter alia, has been defined to mean relating to discipline. Discipline in one form or the other is an element of all organized activity. Its function is to maintain order by setting limits to individual behaviour which may jeopardize the interests of the organized establishment.

2. The dictionary meanings of the word misconduct are: improper behaviour; intentional wrong doing or deliberate

violation of a rule or standard of behaviour. In State of Punjab Vs. Ram Singh (1992 Lab. I.C. 2391 (2394) (S.C.), after noticing the etymological definition for the expression misconduct, K. Ramaswamy, J. observed that though this expression is not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; the forbidden act, a transgression of established and definite rule of action or code of conduct; the act complained of, bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the rule and the purpose it seeks to serve.

Pre-amble of the Constitution


WE, THE PEOPLE OF INDIA, HAVING SOLEMNLY

RESOLVED TO CONSTITUTE INDIA INTO A SOVEREIGN SECULAR DEMOCRATING REPUBLIC AND TO SECURE TO ALL ITS CITIZENS: JUSTICE, SOCIAL, ECONOMIC AND POLITICAL; LIBERTY OF THOUGHT, EXPRESSION, BELIEF, FAITH AND WORSHIP; EQUALITY OF STATUS AND OF OPPORTUNITY AND TO PROMOTE AMONG THEM ALL; FRATERNITY ASSURING THE DIGNITY OF THE

INDIVIDUAL AND THE UNITY AND INTEGRITY OF THE NATION; IN OUR CONSTITUENT ASSEMBLY THIS TWENTY-SIXTH DAY OF NOVEMBER, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

The preamble gives the guidelines, the object and is the guiding star towards the realization of the society with the above objectives.

PRINCIPLES OF NATURAL JUSTICE


1. Audi, alterem, partem-Hear the other party. 2. Nemo debet esse judex in propria causa-No one shall be judge in his own cause. 3. Justice should not only be done but should manifestly appear to have been done.
4.

The final order must be a speaking order.

Constitutional Safeguards

1. Article 311(1)-No person who is a member of 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. Article 311 (2)-No such person as aforesaid shall be dismissed, 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 or 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 practicably 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 or the State, it is not expedient to hold such inquiry. 3. Satisfaction of the Disc. Authority as to whether it is reasonably practicable to hold an inquiry is final (see Art. 311 (3). But is is open to the employee to seek an inquiry at the appellate stage on the ground that the circumstances which warranted the satisfaction of the Disciplinary Authority have ceased to exit and on that basis seek a detailed inquiry. (See Satyavir Singh vs. Union of India (AIR 1986 SC 555)

CONDUCT OF PROCEEDINGS
There are important stages in the conduct of a disciplinary proceeding. These are: a) Preliminary investigations b) Framing of Charges, c) Conduct of Formal Inquiry Proceedings, d) Ex-Parte Inquiry e) Passing of Final Orders f) Common & Simultaneous Proceedings a) preliminary Investigation : 1. The purpose of holding a preliminary investigation or a preliminary inquiry as it is sometimes referred to as, is to find out whether there is a prima facie case for initiating a formal disciplinary proceeding against an employee for violation of the code of conduct application to him. Thus, the role of an investigation officer in the P.E. is to look for evidence of the commission of the alleged misconduct, obtain all documentary evidence available and to seek and obtain statements from witnesses whose evidence would be relevant to the case and on the basis of an evaluation of the evidence so obtained, submit a report to the Disciplinary Authority as to whether there is any prima facie

evidence to show that an act of misconduct has been committed by an employee.The report submitted by an investigating officer

(Preliminary Investigation Report) is only a document which assists the Disciplinary Authority in a case in coming to a conclusion as to whether formal proceeding are warranted against an employee on the basis of the evidence gathered during the preliminary investigation. Therefore, the contents of the preliminary investigation report have no relevance in any formal department inquiry proceedings against an employee unless the same is expressly made a part of the memorandum of charge-sheet by the Disciplinery Authority. Similarly, in cases where the Central Vigilance Commission is consulted before inititaation of disciplinary proceedings against an employee, the first stage advice given by the commission is merely a device which enables the Disciplinary Authority to come to a conclusion as to esistence of a prima facie case justifying disciplinary action against an employee. In view of this, it is not absolutely necessary to supply a copy of the first stage advice of the CVC to the charged employee.

b) Framing of charge :
2. The issuance of a formal memorandum of charge (Chage Sheet) to an employee is the first requirement in a Disciplinary Proceeding. The Apex Court has observed in Union of India vs. K.V. Janakiraman (Air 1991 SC 2010) that a disciplinary proceeding against an employee (or a criminal proceeding) is said to be initiated only from the stage when the charge-memo (or charge sheet in a criminal case) is issued to him not at any earlier stage. The pendency of any preliminary investigation or the pendency of the matter with the Disciplinary Authority or with any other authority before the actual issuance of a charge sheet, cannot be construed as the pendency of disciplinary proceedings against an employee. 3. A very important question which has to be decided by a Disciplinary Authority while framing charges against an employee is about the natre of the misconduct at the part

of the employee and the type of punishment/penalty which it may invite, if sustained. If the prima evidence placed before him indicate misconduct of a serious nature (lack of integrity, acts involving moral turpitude, etc.) he may decide to initiate proceedings for a major penalty (such as dismissal, removal, compulsory retirement or reduction in rank/scale). In other cases, he may decide to initiate proceedings for a minor penalty (such as censure, recovery of financial loss occasioned to the employer by the misconduct, withholding of promotion, etc.) It has to be kept in mind that major penalty prodeedings against an employee consume considerable time and energy of the employer and the employee and, therefore, proceedings for major penalties should not be ordered as a matter of routine. It is only where the misconduct is really serious and the evidence on record is very strong that major penalty proceedings should be resorted to. In a vast majority of cases, it may be expedient to inititate minor penalty proceedings which can be decided merely by

calling for the written statement of defence of the employee and then passing appropriate final orders on the basis of the evidence on record, without an inquiry (unless the employee insists on a formal inquiry). 4. A memorandum of charge-sheet is the first formal communication to an employee about the charge against him with a view to giving him a reasonable opportunity as envisaged in Art. 311 (2) of the Constitution. The charge memorandum has to, specifically and in definite terms, inform the employee about the charge against him. 5. In case where proceedings are taken for imposition of major penalty, please ensure that the following conditions, amongst others, are invariably complied with:a) see that the chargesheet has been initiated by the appropriate Authority. PVS Shastry and Ors vs. CAG and others (1993 (1) SCC 419) b) statement of articles of charge,

c)

statement of imputations of misconduct/misbehavior in support of the Articles of charge,

d)

list of documents on the basic of which the charges are proposed to be sustained, and

e)

list of witnesses through whom the charges are proposed to

be sustained. Articles of Charges : 5. charge is the essence of an allegation setting out the nature of the accusation against an employee in general terms. The primary requirement of the charge memo is that each charge contained in it should be expressed in clear and precise terms; there can be no ambiguity of vagueness about the charges.

Guidelines for framing Articles of Charge


i) there should be a separate charge for each separate transaction. ii) If one and same transaction amount to more than one misconduct, then all the misconduct should be mentioned in the same article of charge. iii) If the same transactions can constitute alternavie charge, the articles of charge can be in the alternative. iv) There should be no expression of opinion or recording of value judgement in the articles of charge. v) An article of charge should not relate to a matter which had already been a subject matter of another inquiry or criminal proceedings resulting in exoneration/acquittal of the employee unless such exoneration/acquittal is only on technical grounds. vi) There should be no reference to the preliminary investivagion report in the article of charge. As already

noticed, the purpose of a preliminary investigation being just to enable the Disc. Authority to appreciate whether there was a prima facie case for initiation of formal proceedings, the inclusion of the contents of the preliminary inquiry report is absolutely not necessary in the articles of charge. vii) There should not be any clerical errors of factual mistakes/inaccuracies in the articles of chargeThese may cause difficulties later, during the proceedings.

viii) When a charge sheet has been served as a result of malafides, a clear allegation of malafides against a particular officer must be made State of Punjab and ors vs. Chaman Lal Goyal 1995 (2) SLJ 126 (SC)=1995(2) SCC570) Statement of Imputation of Misconduct/Misbehaviour : 1. This is the statement which contains the complete facts

relating to the commission of the alleged misconduct or the violation committed by the employee. The statement should be separate for each article of charge. It should contain full and precise recitation of the specific acts of commission or omission on the part of the employee. It should contain details of the evidence available in respect of the commissions and omission of the employee including admission or confession on the part of the employee about such acts or omissions.

List of Document :
2. The list of the document should be complied very carefully with attention to minor details. As the genuineness of the documents is an important factor which will determine the admissibility of a document in the inquiry proceedings, care should be taken to include only such document as are genuine and the originals of which are available in the custody of the Disciplinary Authority. The charged employee has a right to inspect the originals of these documents. List of Witnesses : 3. Persons whose evidence in the course of the inquiry will held in sustaining the articles of charge should be listed as witness. All persons whose statements were obtained during preliminary investigations and whose written statements are being listed as relied upon documents, should be listed as

witnesses. It is not necessary to list a complainant as a witness unless he is a material witness for proving the charge. If, in any case, an investigation has followed a private complaint wherein evidence has been collected against the employee, the name of the complainant need not be given in the charge sheet nor is it necessary to reveal the fact that investigations had commenced on the complaint of a particular person.

Appintment of Inquiry Officer/Presenting Officer :


4.

When a memorandum of charge-sheet is issued to an

employee, he may accept the charges against him, in which case, the Disciplinary Authority can staightaway record his findings on the charges on the basis of the evidence before him, including the admission of the charges by the employee and pass appropriate final orders. If the employee denies the charges against him, the Disciplinary Authrity may either himself conduct the inquiry into the charges or appoint an inquiry officer for the purpose. As a matter of general prudence, however, the Disc. Authority should avoid being the Inquiry Officer himself, with a view to avoiding allegations of prejudice. He should also appoint a Presenting Officer to present the case before the Inquiry Authority on his behalf.

Conduct of Formal Inquiry Proceedings : 1. When an Inquiring Authority as appointed to inquire into charges of misconduct on the part of an employee, the Disciplinary Authority should forward to such Inquiring Authority the following documents :a) Memorandum of charge sheet accompanied by the Statement of Articles of Charge and the statement of Imputations of Misconduct/misbehaviour; b) List of documents by which the charges are proposed to be sustained. This would also include the written statements of witnesses recorded during the investigations; c) List of witnesses by whom the charges are proposed to be sustained; d) Proof of service of the memorandum of charge sheet and its accompaniments and the reply, if any, received from the employee in response to the memorandum of charge sheet or a confirmation that no reply has been received from the employee in response to the charge sheet;

e) Order appointing the IO/PO. 2. It is also advisable to send to the Inquiring Authority a complete bio-date of the employee concerned giving his official and postal address, post presently held by the employee, post held by him at the time of alleged commission of the misconduct, service to which he belongs etc. 3. Upon receipt of the documents from the Disciplinary Authority, the Inquiring Authority should first satisfy himself that he has been correctly appointed to hold the inquiry and upon so being satisfied, send a notice to the employee asking him to present himself before the Inquiring Authority for a preliminary hearing at a place and on a date and time appointed by him for the purpose (generally within 10 days), to intimate the name of his defence assistant and also to produce a latter of permission from the Disciplinary Authority in case the defence assistant is a legal practitioner. He will also issue notice to the Presenting Officer about the preliminary hearing with instructions to bring copies of the listed documents and statements of witness with him. a) Ex-Parte Inquiry : 4. If the charged officer does not submit his written defence within the time specified or does not appear before the Inquiry Officer or otherwise fails or refuses to comply with the provision of the rules, the Inquiry Officer may hold the inquiry ex parte, recording reasons for doing so.

5. Ex-parte proceedings, however, do not mean that findings should be given without investigation. Inqiry is still necessary, although it would be in the absence of the charged officer. It has to be borne in mind that the Inquiry Officers job is not at all affected by the absence of the charged officer. He is charged with the scrutiny of the evidence, both verbal and recorded, and the come to a finding respecting each article of charge. The only difference is that, the employee has denied himself the opportunity of cross-examining of prosecution witnesses and production and examining his own witnesses. The absence of the charged officer does make it a little complicated for the Inqiry Officer to come to a conclusion in the absence of the explanation of the charged officer. The Inquiry Officer has to examine the records and witnesses to enable him to come to a valid conclusion as to the culpability of the charged officer based on the evidence led before him. If the Inquiry Officer has done all this, the charged officer cannot later on plead that he was not given reasonable opportunity.

Even in ex parte enquiry, the Inquiry Officer has to fix a date of hearing and intimate the same to the defendant. It he absents himself from the inquiry at one stage, it does not take away his right to attend to inquiry at any other subsequent stage. The charged officer should be allowed to participate in the inquiry at any stage he likes. However, if he does, the ground already covered will not be repeated. All that the Inquiry Officer has to ensure is that, he comes to a finding solely on the basis of evidence, both oral and documentary, produced before him.

6. A teacher of Kendriya Vidyalya was absconding from duty and not responding to the latter sent by the School. The authority invoked rule 19 (ii) and terminated the services without holding and inquiry. The issue was whether the termination of services without holding the inquiry was valid and proper. The Hon. Supreme Court held that for application of rule 19 (ii) a conclusion has to be recorded that it was not reasonably practicable to hold the enquiry proceedings. Since such a finding had not been recorded by the authorities, the termination was illegal and the administrative tribunal and the high court were correct in questioning the termination order. However, it was open to the management to initiate disciplinary proceedings within two months and such proceedings should be completed within six months from the date of judgement
Kendriya Vidyalaya Sangathan and Anr Vs. S.C. Sharma, JT 2005(I) SC 336

f) Passing Final Orders : 7. Immediately on receipt of the Inquiry Report, please examine it carefully to see whether the inquiry has proceeded strictly in accordance with the rules and the procedural safeguards have been followed as per the relevant statutory prescriptions. In case you find that there are defects in the conduct of the inquiry, you can remit the case back to the Inquiring Authority for further inquiry and report. However, this would require recording of reasons in writing by the Disciplinary Authority. 8. In case you find the Inquiry Report free from any such prodedural defects, the next step is to forward a copy of such Inquiry Report to the charged employee (whether the inquiry report is favourable to him or not) and to give him an oporotunity of making a representation against the findings of the Inquiring Authority as contained in the report.

9. On the need to supply a copy of the Inquiry Report to the charged official three important case laws need mention : i) ii) B.C. Chaturvedy vs UOI, (JT 1995(8)SC65) State of Tamil Nadu vs T.K.V. Perimal & Ors (JT 1996 (6)SC604) iii) S.K. Singh vs Central Bank of India (1996(6) SCC415)

10. In case the Disciplinary Authority disagrees with the finding of the Inquiring Authority on any article of charge, he shall record his reasons for such disagreement. The same should also be communicated to the charged employee for his

representation, if any, against it before the Disciplinary Authority takes a final decision in the matter. In case the Disciplinary Authority has consulted the Union Public Service Commission and/or the Central Vigilance Commission (for its second stage advice), it is mandatory to supply a copy of the advice of the UPSC as also the second stage advice of the CVC to the charged employee and his representation against the same will also have to be considered by the Disciplinary

Authority. These requirements have been prescribed as necessary safeguards by repeated judicial pronouncements for compliance with the requirements of natural justice, even though the government rules did not contain-and in some cases even now do not contain-any provisions in this regard (Please see Union of India vs. Mohd. Ramzan Khan (1990(2)Scale 1094 : JT 1990(4)SC456) (on supply of copy of Inquiry Report) and Punjab National Bank & other vs. Kunj Behari Misra (JT 1998(5)SC548)

11. Having complied with the procedural requirements of the law as outlined above, the Disciplinary Authority has to make an assessment of the whole case, the nature of the charges, the evidence on record, the finding of the Inquiring Authority, the assessment of evidence by the Inquiring Authority, the explanations offered by the employee in respects of disagreement, if any, recorded by the Disciplinary Authority, the overall picture which emerges out of consideration of all these factors-whether the employee is guilty of any or all of the charges leveled against him?

12. The Disciplinary Authority should pass a speaking order. Such an order should possess the attributes of judicial orders. It is obligatory to record full reasons in support of a decision by a quasi-judicial authority as it ensures that the decision is reached according to law and is not a result of caprice, whim or fancy or reached on ground of policy or expediency (See Mahavir Prasad vs. State of U.P. (AIR 1970 SC 1302). In case

the employee is found to be guilty of any the charges, the Disciplinary Authority should carefully assess the gravity of each miscounduct on the part of the employee, the circumstances under which, he had committed the misconduct, the motive behind the misconduct/misdemeanour, the loss occurred of Government due to the misconduct/misdemeanour or negligence on the part of the employee, etc. It is only with reference to the gravity of the misconduct established during the inquiry, the Disciplinary Authority has to decide upon the penalty to be imposed upon an employee. It is only in extreme cases of moral turpitude or where the employee has rendered himself totally unemployable, that the extreme penalties of dismissal, removal or compulsory retirement are to be resorted to. In a vast majority of cases, any one of the other penalties may be found to be adequate to meet the ends of justice.

Proportionality of Punishment

13. The

prerogative

of

deciding

an

appropriate

penalty/punishment in a Disciplinary Proceeding is mainly that of the concerned Disciplinary Authority.Courts of India have consistently held that the power to impose a penalty on a delinquent officer is conferred on the competent authority either by legislation or under rules made under the proviso to Article 309 of the Consitution. If there has been an inquiry consistent with the rules and in accordance with the principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If any penalty can be lawfully imposed and is imposed on proved misconduct, the Tribunal has no power to substitute its own discretion for that of the Disciplinary Authority. The adequacy or proportionality of the penalty, unless it is mala fide, is certainly not a matter for judicial review. In fact, the Tribunal cannot interfere with the

penalty. In fact, the Tribunal cannot interfere with the penalty if the conclusion of the authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter (See Union of India vs. Parmananda (AIR 1989 SC 1185). Thus, it is settled law that the High court/Tribunal while exercising the power of judicial review, cannot Normally substitute its own conclusions on the question of penalty and impose some other punishment. If the punishment or penalty imposed by the Disciplinary/Appellate Authority shocks the judicial conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the

disciplinary/appellate authority to reconsider the penalty imposed or to shorten litigation, in exceptional and rare case, it may itself impose an appropriate punishment with cogent reasons in support thereof. (See B.C. Chaturvedi vs. Union of India (JT 1995 (8) SC 65) 14. It needs to be emphasized that the Court or Tribunal while dealing with the quantum of punishment has to record reasons

as to why it is felt that the punishment does not commensurate with the proved charges. Failure to give reasons amount to denial of justice. Regional Manager, UPSRTC, Etawah &Ors. Vs. Hoti Lal and Anr. (JT2003(2) SC27=2003(3) SCC605)

15. when a Court feels that punishment is shockingly disproportionate, it must record the reason for coming to such a conclusion. Mere expression that the punishment is shocking disproportionate would not meet the requirements of law. Damoh Panna Sagar Rural Regional Bank &Anr vs.M.L. Jain

16. In the case of Pritam Singh vs. UOI & Ors JT2004(7)SC576, no material on record was placed before the disciplinary authority, administrative authority, tribunal and honorable High Court to reasonably form an opinion that compulsory retirement was in public interest. The case on hand is not a

case of doubtful integrity. The impugned order of compulsory retirement has been termed as arbitrary in the sense that no reasonable person could have come to the conclusion that the appellant has utility as a member of the railway service and had become a deadwood which had to be chopped off.

Common and Simultaneous proceedings :


17. Where two or more Government servants are concerned

in any case, the President or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding. 18. Where there is delay in the disposal of a proceedings

case the Departmental Proceedings can be proceeded with simultaneously. The idea is to take advantage of the conclusion that can be arrived at the earlier date. If ultimately the employee is found not guilty, his honour can be vindicated and in case he is found guilty the employer may get rid of him earlier. Hindustan Petroleum Company vs. Sarvesh Berry JT 2004(10)SC392

Appeal, Revision and Review


19. A Government servant,including a person who has

ceased to be in Government service, may prefer an appeal to the Authority specified in this behalf in the Schedule to the CCS (CCA) Rules, against order of the Disciplinary Authority, in case he is not satisfied with the decision of that authority. 20. Where no such authority is specified, the appeal of a

Group A or Group B officer shall lie to the Appointing Authority, where the order appealed against is mady by an authority subordinate to it; and to the President where such order is mady by any other authority. An appeal from a Group C or Group D Government Servant will lie to he authority to which the authority making the order appealed against is immediately subordinate. 21. In the case of all those belonging to Central Civil

Services, Group A, the President is the Appointment

Authority and also the Disciplinary Authority. This means that once the Disciplinary Authority, that is the President, has exercised his powers, no appeal can lie to authority, because there is none superior to the President. But memorials and mercy petitions can, no doubt, be submitted, praying for remission of penalty or pardon.

22 . An appeal should be preferred within a period of forty-five days from the date on which a copy of the order appealed against is delivered to the government servant. It should be complete in all respects and contain all material statements and arguments on which reliance is placed. It should not contain any disrespectful or improper language. The Appellate Authority is empowered to entertain appeal preferred after the expiry of the said period, if it is satisfied that the Government servant had sufficient cause for not preferring the same in time. There is no provision in the rules for whitholding of an appeal on any ground.

23.

The Apellate Authority to whom the appeal is

addressed direct, on receipt of the relevant documents of the disciplinary proceedings complete in all respects,should consider the same to see: i) whether the procedure laid down in the rules has been complied with, and if not, whether such non-compliance had resulted in the violation of any provisions of the Constitution or in the failure of justice; ii) whether the finding of the Disciplinary Authority are warranted by the evidence on the record of the case; and iv) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe. 24. The rules thus cast a duty on the Appellate Authority to

consider the relevant factors set forth above. It is not the requirement of Article 311(2) or of the rules of natural justice that in every case the Appellate Authority should, in its order, state its own reasons except where it disagrees with the finding of the Disciplinary Authority. It is, however,

necessary that all the points raised by the appellant are summarized in the order and are also logically discussed to show how they are tenable/acceptable or otherwise. 25. The appellate order should discuss thoroughly the

following points: i) the procedural aspects as well as the justness of the findings of the Disciplinary Authority with reference to the admissible evidence; ii) a proper discussion of the points reaised in the appeal;and iii) any objective assessment of the lapse on the part of

punished official with a view of coming to a decision that the charge(s) had been established and that the penalty is appropriate/adequate and does not require to be either toned down or enhanced. 26. The principle of rights of personal hearing applicable to

a judicial trail or proceedings even at the appellate stage is not applicable to departmental enquiries, in which a decision of the Appellate Authority can generally be taken on the

basis of the record before it. However, where the appeal is against an order imposing a major penalty, the Authority may, after considering all the relevant circumstances of the case, allow the appellant, at its discretion, the personal hearing taking the assistance of Defence Assistant. 30. In the light of its findings the Appellate Authority has to pass an orderi) confirming, ehancing, reducing or setting aside the penalty; or ii) remitting the case to that authority which imposed or enhanced the penalty or to any authority with such direction as it may deem fit in the circumstances of the case. 28. No order imposing an enhanced penalty can be made in a case unless the Government servant has been given a reasonable opportunity of making a representation against such enhanced penalty. When the Appellate Authority proposes to impose one of the

major penalties and if no enquiry as laid down in the rules had been held already, it should itself hold such an enquiry or direct such enquiry to be held and pass orders thereafter on a consideration of the proceedings of such enquiry.

Revision
29. After the Appellate Authority has passed its judgment

and if the Government servant is not satisfied with it, he has an opportunity to seek the indulgence of an authority higher than that the Appellat-the revising authority. The power of revision is vested with the President, the Comptroller and Auditor-General, the Member Board, the (Administration) Head of a

Postal/Telecommunications

Department, the relevant Appelate Authority or any other authority specified in this behalf. 30. No time-limit has been prescribe for the revision,

except in the case of the Appellate Authority, where the revised order has to be passed within six months of the date of the order proposed to be revised. This power can be invoked irrespective of the fact whether an appeal/revision petition has been submitted to such authority.

31.

No proceeding for revision should be commenced until

after the expiry of the period of limitation or appeal or, the disposal of the appeal, where any such appeal has been preferred. An application for revision should be dealt with in the same manner as if it were an appeal under the rules.

Review
32. The President has power to review any order passed

earlier, including an order passed in revision, when any new fact or material which has the effect of changing the nature of the case, comes to his notice.

33.Areas of Common Mistakes in Disciplinary Proceedings-

1. Review of suspension allowances-refusals/delays thereof. 2. Fesh/Denoro Enquiry. 3. Recovery of payment or with holding of payments. 4. Misuse of CCS/CCA Rules under Section 19 (ii) and 56 (J). None of the two to be resorted to as short cut to Disciplinary proceedings. 5. Preparing chart sheets where allegation of malafides are involved. 6. Mistakes as regards competent authority for issue of charge memo and orders of dismissal/removal. 7. Disagreement by Disciplinary Authority with orders of Enquiry Officer. 8. Determination of witnesses and documentations for

establishment of charge memos. 9. Withdrawl of pensionary benefits on the plea of

contemplated major penalty charge sheets.

10.

Charge proceedings memos after 4 yrs of super

annuation. 11. Issues like appointment of IO and Defence Asstts. 12. Non-supply copy of advise of UPSC when such an advise has been obtained. 13. Evidence should directly relate to charges intended to

be proved. Otherwise, it is no evidence. 14. Every ground of appeal should be dealt with by recording the reasons in writing.

SUSPENSION (1) The Appointment Authority or any authority to which it is subordinate or the Disciplinary Authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension(a) where a disciplinary proceeding against him is

contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the state; or (b) where a case against him in respect of any criminal

offence is under investigation, inquiry or trial:

(2)

A Government servant shall be deemed to have been placed

under suspension by an order of Appointing Authority(a) with effect from the date of his detention, if he is

detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours; (b) with effect from the date of his conviction, if, in the

event of a conviction for an offence, he is sentenced to a term of imprisonment exceeding forty-eight hours and is not forthwith dismissed or removed or compulsory retired consequent to such convincion. EXPLANATION : The period of forty-eight hours referred to in clause (c)of this sub-rule shall be computed from the commencement of the imprisionment after the convinction and for this purpose, intermitent periods of imprisonment, if any, shall be taken into account.

(3) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant under suspension is set aside in appeal or on review under these rule and the case is remitted for further inquiry or action or with any other directions, the order of his suspension shall be deemed to have coutinued in force, on and from the date of the original order of dismissal, removal or compulsory retirement and shall remain in force until further orders.

(4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence of or by a decision of a Court of Law and the Disciplinary Authority, on a consideration of the circumstances of the case, decides to hold a further inquiry against him on the allegations on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the Government servant shall be deemed to have been placed under suspension by the Appointment Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders:

1 Provided that no such further inquiry shall be ordered unless it is intended to meet a situation where the Court has passed an order purely on technical grounds without going into the merits of the case.

2 (5) (a) Subject to the provision contained in sub-rule (7), any order of suspension made or deemed to have been made under this rule shall continue to remain in force until it is modified or revoked by the authority competent to do so.

(c)Where a Government servant is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceeding or otherwise), and any other disciplinary proceeding is commenced against him during the continuance of that suspension, the authority competent to place him under suspension may, for reason to be recorded by him in writing, direct that the Government servant shall continue to be under

suspension until the termination of all or any of such proceedings. 3. (6) An order of suspension made or deemed to have been made under this rule shall be reviewed by the authority which is competent to modify or revoke the suspension (before expiry of ninety days from the effective date of suspension) on the recommendation of the Review Committee constituted for the purpose and pass orders either extending or revoking the suspension. Subsequent reviews shall be made before expiry of the extended period of suspension. Extension of suspension shall not be for a period exceeding one hundred and eighty days at a time.)

2 (7) An order of suspension made or deemed to have been made under sub rule (1) or (2) of this rule shall not be valid

after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days.

Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whicherve is later.

PENALTIES AND DISCIPLINARY AUTHORITIES The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely:Minor Penalities(i) (ii) Censure; Withholding of his promotion;

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to be Government by negligence or breach of orders; (iii) (a) reduction to a lower stage in the time-scale of pay one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension. (iv) withholding of increaments of pay;

Major Penalties(v) Save as provided for in Clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction will or will not have the effect of postponing the future increments of his pay ; (vi) Reduction to lower time-scale of pay, post or service which shall ordinarily be as bar to the promotion of the Government servant to the time-scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or Service ; (vii) Compulsory retirement;

(viii) removal from service which shall not be a disqualification for future employment under the Government. (ix) dismissal from Service which shall ordinarily be a disqualification for future employment under the Government. 2 Provided that, in every case in which 3(the charge of possession of assets disproportionate to known sources of income or the charge of acceptance) from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mentioned in Clause (vii) or Clause (ix) shall be imposed: Provided further that in any exceptional case and for special reasons recorded in writing, any other penalty may be imposed.

EXPLANATION,- The following shall not amount to a penalty within the meaning of this rule, namely :(i) Withholding of increment of a Government servant for his failure to pass any departmental examination in accordance with the rules or orders governing the service to which he belongs or post which he holds or the tearms of his appointment; (ii) Stoppage of a Government servant at the Efficiency bar in the time-scale of pay on the ground of his unfitness to cross the Bar; (iii) Non-promotion of a Government servant, whether in a substantive or officiate capacity, after consideration of his case, in Service grade or post for promotion to which he is eligible; (iv) Reversion of a Government servant officiating in higher service, grade or post to a lower service, grade or post, on the ground that he is considered to be unsuitable for such higher

Service, grade or, post or on any administrative ground unconnected with his conduct; (v) reversion of a Government servant appointed on probation to any other service, grade or post, to his permanent Service, grade of post during or at the end of the period of probation in accordance with the terms of his appointment or the rules and orders governing such probation; (vi) replacement of the Service of a Government servant, whose Services had been borrowed from a State Government or any authority under the control of a State Government, at the disposal of the State Government or the authority from which the services of such Government servant had been borrowed; (vii) compulsory retirement of a Government servant in accordance with the provisions relating to his superannuation or retirement;

(viii) termination of the service(a) of a Government servant appointed on probation, during or at the end of the period of his probation, in accordance with the terms of his appointment or the rules and orders governing such probation, or (b) of a temporary Government servant in accordance with the provisions of sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, or. (c) of a Government servant, employed under an agreement, in accordance with the terms of such agreement.

Unauthorized Absence
FR 17 A- Without prejudice to the provisions of Rule 27 of the Central Civil Service (Pension) Rules,1972, a period of an unauthorized absence(i) in the case of employees working in industrial Disputes Act, 1947, or any other law for the time being in force; (ii) in the case of other employees as a result of acting in combination or in concerted manner, such as during a strike, without any authority from, or valid reason to the satisfaction of, the competent authority, and (iii) in the case of an individual employee, remaining absent unauthorized or deserting the post: shall be deemed to cause an interruption or break in the service of the employee, unless otherwise decided the competent authority for the purpose of leave travel concession, quasipermanency and eligibility for appearing in departmental

examinations, for which as minimum period of continuous service is required. EXPLANATION 1.- For purposes of this rule, Strike includes as general, token, sympathetic or any similar strike, and also a participation in a bandh or in similar activities. EXPLANATION 2.- In this rule, the term competent authority means the Appointing Authority. For interpretation of what constitutes a strike a reference may made to instruction below Rule7 of CCS (Conduct) Rules.