Brochure on Reservation

The Government of India has recently brought out a Brochure on Reservation. The said brochure brings out the Consttitutional and legal provisions in regard to Reservation.It also describes in details as to how the scheme of Reservation was evolved and also the Institutional safeguards and impact of  Reservation Policy. It would be of great help to Government servants if they go through the said broachure  so that  they understand all the issues connected with Reservation.

The above said Brochure is made avilable on this blog. Those interested can get  itdownloaded.

Disciplinary Proceedings and Natural Justice

Natural Justice is not defined anywhere. Justice Krishna Iyer has defined Natural Justice in case of Deaprtmental Inquiry as ," Vocate, Interogate and then adjudicate.It is cardinal principle of Law that no person can be held to be guilty unless chrages are informed to him and he is given reasonable  opportunity to defend himself. The  said principle finds a place in Article 311 of the Consttution. The Courts and the Tribunals interfere in case there is violation of principles of Natural Justice while conducting a departmental Inquiry and the imposing penalty on the basis of findings of the Inquiry officer.

Non supply of relevant documents, Not allowing the assistance of Defence Assistant, no opportunity to cross the witnesses of  disciplinary authority, not allowing the employee to examnine the witnesses are obvious examples of Violation of principles of Natural justice. However non observance every aspect procedure prescribed does not amount to  violation of principles of natural justice. In case of procdural violation , the employee has to show what prejudice is caused to him because of non obsevance of procdure by the inquiry and disciplinary authority. It depends upon the facts and circumstances in each case.

The Superme Court in well known case of  State Bank of Patiala v/s  S. K. Sharma , AIR 1996 SC 1669 has  explained in detail  the concept of natural Justice vis-a vis Disciplinary Inquiry. The said judgement is available on this blog at S.N. 1 in the list of judgments, under " Disciplinary Proceedings - Judgements ". It is suggested the senior officers who are the disciplinary authorities, the Inquiry Officers and the advocates dealing with the cases of disciplinary proceedings may get the said judgement downloaded for their study and use. 

Promotion a fundamnetal Right- Suprme Court

The supreme Court in it's recent judgement in case of Major General H.M.Singh v/s Union of India deilivered on 9 th January 2014 has held that the non-consideration of the claim of the employee/ appellant eligible and found fit for promotion would violate the fundamental rights vested in him under Articles 14 and 16 of the Constitution of India. subject to the condition, that the employers / respondents were desirous of filling the vacancy of the promotional post .

The above said judgement is available on this blog under the Title of " Disciplinary Proceedings- Judgements- Important judgments. Those desirous can get it downloaded.

Advice of the Union Public Service Commission (UPSC) to be communicated to the delinquent Government servant along with the final order of penalty - Amendment – regarding

No. 11012/8/2011-Estt.(A)

Government of India

Ministry of Personnel, PG & Pensions

Department of Personnel & Training

North Block, New Delhi

January 6, 2014

OFFICE MEMORANDUM

Subject : Rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 – Advice of the Union Public Service Commission (UPSC) to be communicated to the delinquent Government servant along with the final order of penalty - Amendment – regarding

The undersigned is directed to refer to the provisions of the Rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and to say that the nature of consultation with the Union Public Service Commission (UPSC) and the manner of communication of the advice of the UPSC to the delinquent Government servant have been subject matter of litigation in some cases in CAT/High Courts etc. The Hon’ble Supreme Court in the T. V. Patel case, delivered on 19.04.2007, held that the Disciplinary Authority is not required to furnish a copy of the advice tendered by the Union Public Service Commission to the Charged Officer before the final order of penalty is passed. Accordingly, vide Office Memorandum No. 11012/10/2007- Estt.(A) dated 07.01.2008, the Ministries/ Departments/ Offices were requested to comply with the existing provisions of CCS(CCA) Rules, 1965 and bring the contents of the O.M. to the notice of all concerned for adopting a uniform stand.

2. Now, the Hon’ble Supreme Court in its judgment on 16.03.2011, while dismissing the Civil Appeal No. 5341 of 2006 in the matter of Union of India & Ors. vs S. K. Kapoor, has held that it is a settled principle of natural justice that if any material is to be relied upon in departmental proceedings, a copy of the same must be supplied in advance to the charge sheeted employee so that he may have a chance to rebut the same. The Hon’ble Court also observed that there may be a case where the report of the Union Public Service Commission is not relied upon by the disciplinary authority and in that case it is certainly not necessary to supply a copy of the same to the concerned employee. However, if it is relied upon, then a copy of the same must be supplied in advance to the concerned employee, otherwise, there will be violation of the principles of natural justice.

3. The matter has been examined in consultation with Department of Legal Affairs and it has been decided that in compliance of the judgement of the Hon’ble Supreme Court in S.K. Kapoor case, a copy of the advice of UPSC, in all cases where the Commission is consulted, may be provided to the Charged Officer, not withstanding the provisions of Rule 17 and Rule 32 of CCS (CCA) Rules, 1965 before a final decision is taken by the Disciplinary Authority (DA).

4.Accordingly. it has been decided that in all disciplinary cases where the Commission is to be consulted, the following procedure may be adopted:

(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission’s report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.

5.A flow chart indicating the present and revised procedure is annexed for ready reference.

6. All Ministries/ Departments/Offices are requested to bring the above guidelines to the notice of all Disciplinary Authorities under their control. All cases, where final orders have not been issued may be processed as per these guidelines.

7. Formal amendment to CCS (CCA) Rules will follow.

8.Hindi version will follow.

sd/-

(J.A.Vaidyanathan)

Director (E)

Dismissal of Govt. employee due to conviction by Court- Files appeal against the conviction- High court grants stay to the sentence & releases him on bail- Employee applies for pensionary benefits - Is he entitled ?-

Talathi was convicted for a criminal offence and sentenced for one year's imprisonment. He was dismissed due to the said conviction. He files an appeal in the High Court against the conviction. The High court grants stay to his conviction and releases him on bail.In view of the said stay , Talathi applies for grant of pensionary benefits viz.Pension & Gratuity. The query is made to me as to whether the demand for grant of pensionary benefits can be granted. I gave the following reply,

" Talathi was dismissed on account of his conviction by the court. It is true that the High Court has granted the stay to the sentence awarded by the lower court but his conviction is not set aside.He is therefore guilty in the eyes of law.Therefore his dismissal is  still valid .

The service of an employee who is dismissed from service, stands forfeited as provided in Rule 45 of M.C.S.(Pension) Rules 1982 and thefore the said Talathi  is not entitled for pensionary benefits viz. Pension and Gratuity.

A dismissed employee is entitled for refund of  Group Insurance Scheme and Government Providend Fund amount since he has contributed the said amounts. However he will not be entitled for leave encashment. "

The viewers may please note the above reply so that they will be able to take appropriate decision while dealing with the similar cases  their offices.