Discipy Proc May 2012

7/27/2019 Discipy Proc May 2012

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DISCIPLINARY PROCEEDINGS:

Disciplinary proceedings, also called as Departmental Proceedings are

the proceedings conducted against a Government Servant on allegation

which may lead to the imposition of a punishment on him/ her.

The procedure to be followed in disciplinary cases against a

Government Servant is laid down in various rules pertaining to different

categories of Government Servants. The rules having the widest

applicability are The Tamil Nadu Civil Services (Discipline and Appeal)

Rules which have been framed in conformity with the provisions of Article

311 of the Constitution of India. Any failure to observe the proper

procedure, as laid down in The Tamil Nadu Civil Services (Discipline and

Appeal) Rules and the various instructions issued thereunder by the

Government, either wilfully or due to gross negligence or lack of

knowledge, is liable to vitiate the entire disciplinary proceedings

rendering them null and void.

Tamil Nadu Civil Services (D&A) Rules shall apply to all the

members of the State and Subordinate Services and to the holders of

the Civil Post under the State, whether temporary or permanent.

According to the Explanation thereunder, these rules shall also apply to a

Government Servant who is working on deputation [Rule 2].

The penalties enumerated in Rule 8 can be imposed on a

Government Servant for good and sufficient reason. But what is

good and sufficient reason has not been defined in the rules.Corruption, Misconduct, Failure to perform duties properly and Personal

Immorality are some of the principal matters which are considered as

providing good and sufficient reason. The penalties enumerated in

Rule 8 are classified as Minor penalties and Major penalties. They are

as below:


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MINOR PENALTIES : Censure, Fine, Withholding of Increments,

Withholding of Promotion, Recovery from Pay of any pecuniary

loss caused to the Government by negligence or breach of orders

and Suspension.MAJOR PENALTIES : Reduction to a lower rank in the seniority list ,

Reduction to a lower post, Compulsory Retirement, Removal from

the Service and Dismissal from the Service.

According to the Explanation II under Rule 8, withholding of increments

for the failure to pass the Departmental Examination is not a penalty within the

meaning of TNCS (D&A) Rules and according to the Explanation III thereunder,

the dismissal of a Government Servant from the service shall disqualify

him/her for future employment; but the removal from the service shall not

disqualify him/her for future employment.

According to Rule 9(c)(2) , the authority competent to impose the Minor

penalties (except Suspension) may institute Disciplinary Proceedings

against any Government Servant for the imposition of Major penalties though the

such authority is not competent to impose any of the Major penalties. According

to Rule 9A, if more than one Government Servant are jointly involved or whose

cases are interconnected, the authority competent to institute Disciplinary

Proceedings shall be the immediate higher officer in respect of the Government

Servant who holds the highest post among such Government Servants and the

Disciplinary Proceedings against all of them shall be taken together. Where

inquiry is to be conducted in terms of Rule 17 (b), the said authority may either

himself conduct the inquiry or get the inquiry conducted by an Inquiry Officer

appointed by the authority competent to impose a Major penalty in respect of the

Government Servant who holds the highest post among such GovernmentServants. The said authority shall send the Inquiry Report to the authority

competent to impose the penalty in respect of the Government Servant who

holds the highest post among the Government Servants for passing the final

orders. According to Rule 12 (2), the Government in respect of those appointed


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by the Government and the appointing authority in respect of those

appointed by himself may impose the penalties.

Every disciplinary case is mostly preceded by the investigation which

will be conducted either by the Director of Vigilance & Anti Corruption or by the

Department itself. The investigation or inquiry is a purely fact finding inquiry to

determine whether there is a prima facie for a departmental action against a

Government Servant . Rule 17 (a) and Rule 17 (b) provide for the imposition of a

Minor penalty and a Major penalty respectively. These Rules will determine the

procedure to be followed for the further conduct of the proceedings and thus the

choice of the rule is a matter of vital significance.

RULE 17 (a) : If the charges are framed under Rule 17 (a), the disciplinary

authority shall have to inform the accused Government Servant in writing, of the

proposal to take action against him/her giving the details of imputations of

misconduct or misbehaviour for which action is proposed to be taken and

reasonable opportunity to make any representation within a specified period. No

mention shall be made about the quantum of the penalty which the disciplinary

authority wishes to impose. There is no provision in the rule for the

inspection of documents to enable the accused Government Servant to

submit the representation against the action; but the rules of naturaljustice require that wherever a case is based on documentary evidence

and if the accused Government Servant requests for the perusal of

such documents, he/she should be given a reasonable opportunity to

peruse the documents before making his / her representation. The

representation of the accused Government Servant is to be considered

by the Disciplinary Authority before passing the final orders. However,

with reference to the Second Proviso to Rule 17(a), an inquiry in the

manner laid down in Rule 17(b) shall be obligatory in the following

circumstances:

(i) where it is proposed to withhold increments which is likely to affectadversly the amount of pension payable to the GovernmentServant;


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(ii) where it is proposed to withhold increments without cumulative effectfor a period exceeding three years; and

(iii) where it is proposed to withhold increments with cumulative effectfor any period.The Final Orders imposing the penalty should be a Speaking

Order so that the accused official could know the process of reasoning

that led to penal action. The statement your explanation has been

carefully considered and the same has been found to be unsatisfactory

will not satisfy the requirements of a speaking order.

RULE 17 (b) : Article 311 of the constitution enumerates two fundamental

principles upon which the whole procedural law concerning imposition of

Major penalties rests. The first clause of that article contains the

guarantee that no Government Servant shall be dismissed or removedby an authority subordinate to that by which he/she was appointed. The

second clause guarantees to him / her a reasonable opportunity of

defence on the charges framed against him / her. The provisions of this

article are absolute and can not be whittled down by any rule or

administrative instructions. In other words, no rules relating to public

services can trespass the rights guaranteed by article 311. Framing of

charges is most crucial and the disciplinary case depends primarily on

the soundness of the charges. The courts of law repeatedly held that

mere suspicion can never take place of proof of any evidence. The

charge memo which is not based on clear cut evidence will lead to the

failure of the disciplinary case.

If it is proposed to impose on a Government Servant any of the

Major penalties, the grounds on which it is proposed to take action

shall be reduced to the form of a definite charge or charges which shall

be communicated to the accused official together with a statement of the

allegations on which each charge is based and of any other

circumstances that are proposed to be taken into consideration in passing

orders on the case. The accused official shall be required, within a

reasonable time (normally not less than a fortnight and not more than a


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month), to put in a written statement of his /her defence and to state

whether he / she desires an oral enquiry or to be heard in person or

both. The charge memo should be accompanied by a list of witnesses

who are proposed to be produced during the oral enquiry and also a

list of documents which are proposed to be produced in support of the

charges. For the convenience of the accused official, a questionaire

form should be furnished to the accused official asking him to resubmit

the questionaire duly filled in along with statement of defence.

An oral inquiry shall be held if such an inquiry is desired by the

accused official and also in respect of charges which are not admitted

by the accused official even if he/ she does not want an oral inquiry.

Normally the inquiry shall be held at the place where the accused official

was employed at the time of commission or omission of the acts

forming the ground for the disciplinary proceedings. The accused official

can ask for perusal of the documents before submitting written statement

of defence or at the time of oral inquiry. As per the second proviso of

Rule 17(b), the accused Government Servant may take the assistance of

any retired Government Official to present the case on his/her behalf.

The inquiry officer must conduct the inquiry without bias and certainlywithout indecisiveness. The accused official must be given a fair and a

reasonable opportunity to defend himself/ herself.

The right of the accused official to cross examine a witness who has

given evidence against him/her in a departmental proceedings is a safeguard

implicit in the reasonable opportunity to be given to him under article 311(2).

The defence witnesses will also be examined at the end of the

completion of inquiry and the accused official shall state whether he / she

had been given a reasonably opportunity of presenting the case or

he/she has any complaint in this regard. If there is any complaint, the

Inquiry Officer will examine the complaints and get right the matter. The

depositions are to be handed over to the accused officer and get signed by

him/her in token of their having been correctly recorded. The inquiry report


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shall contain a sufficient record of evidence and a statement of findings and

the grounds thereof. The conclusion must be rested only on the evidence

and not on matters outside the record. The inquiry officer has no right

to recommend the nature and quantum of punishments to be inflicted

on the accused officials for the charges held proved.

On receipt of the inquiry report, the disciplinary authority who is

the punishing authority shall examine the report carefully and after

satisfying that the accused official has been given a reasonable

opportunity to defend himself / herself, shall record his findings in

respect of each charge stating whether, in his opinion , it stands proved

or not. The report of the inquiry officer is intended to assist the

disciplinary authority in coming to a conclusion about the guilt of the

Government Servant. Its findings are advisory in character and are not

binding on the disciplinary authority who can disagree with them and

come to his own assessment of the evidence forming part of oral

inquiry. The authority competent to impose the penalty is of the opinion that any

of the penalties should be imposed, it shall, before making on order imposing

such penalty, furnish him/her a copy of the inquiry report and call upon him/her to

submit further representation, if any, within a reasonable time not exceeding 15days. After considering the record of the case, the inquiry report and the

representation submitted by the official, the Disciplinary Authority shall come to

the conclusion as to whether the charges are proved and about the

punishment to be imposed and issue the orders accordingly .The order

must be a speaking order and shall be communicated to the accused

official. Punishment orders shall not take effect retrospectively; shall take

effect from the date of order, if it is so specified or from the date of its

actual receipt by the accused official. The final order should be assigned

only by the competent authority to impose the penalty.

According to Rule 17(e), a Government Servant may be placed under

suspension from service when an into grave charges against him/her

is contemplated or pending and a complaint against him/her of any


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criminal offence is under investigation or trail. A Government Servant

who is detained in custody for a period longer than 48 hours shall be

deemed to have been suspended under this rule.

Discipy Proc May 2012

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Transcript of Discipy Proc May 2012