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Can the Disciplinary Authority himself act as the Inquiry Officer?
The services of the Inquiry Officer is extended to the Disciplinary Authority to lighten the burden placed on him and not to share his powers or functions. Officer Employees regulations empower the disciplinary authority, whenever it is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee-
* to itself inquire into, or
* appoint an inquiry officer to inquire into the truth thereof
The services of the Inquiry officer are thus optionally available to the disciplinary authority and appointment of the IO is not binding on him. IO carries out merely a process and no part of the functions of the disciplinary authority is passed on him or shared by him.
Normally "Unless unavoidable the disciplinary authority should refrain from being Inquiry Officer".
Can Retired Officers act as Inquiry Officer?
The disciplinary authority is empowered to appoint "an authority to inquire into the truth" of the imputations in the charge sheet. It will be in order to appoint a competent person not connected with the organization/department to which the charged officer belongs including a retired Officer.
The Central Vigilance Commission was concerned over the inordinate delay in the completion of inquiry proceedings in disciplinary cases involving vigilance angle under the commission's jurisdiction. In order to streamline the system it issued a number of guidelines, one of which is entrusting inquiries to retired government servants/public servants who
i. shall not engage himself/herself in any other professional work or service, which is likely to interfere with the performance of his/her duties as Inquiry Officer;
ii. shall be appointed as IOs by the Disciplinary authority of the Charged Officer whose case is entrusted to him/her;
iii. will be entrusted with the Inquiries on 'Case-to-case' basis, by the Disciplinary authority;
iv. shall maintain strict secrecy in relation to the documents he/she receives or information/data collected by him/her in connection with the Inquiry and utilise the same only for the purpose of Inquiry in the case entrusted to him/her. No such documents/information or data are to be divulged to any one during the Inquiry or after presentation of the Inquiry Report. The I.O. entrusted with the Inquiries will be required to furnish an undertaking to maintain strict secrecy and confidentiality of all records/documents/ proceedings etc. All the records, reports etc. available with the I.O. shall be duly returned to the authority which appointed him/her as such, at the time of presentation of the Inquiry Report;
Can Retired Officers act as Defence Assisting Officer?
The Government of India through specific guidelines have permitted delinquent officers to avail the services of retired Government servants as Defence Assistants. If the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf would apply
The Government of India had earlier restricted such defence assistance in regard to the period during which retired Government servant can assist a serving Government servant involved in disciplinary proceedings and the number of cases which he may handle at any given time. These have now been totally removed.
Following the example of Government of India some public sector banks have also started permitting retired officers to be nominated as defence assistants by charge sheeted officers, but generally Public Sector banks are still not permitting delinquent officers to engage a retired bank official as Defence Assistant
Whether Disciplinary Authority is competent to initiate disciplinary proceedings, if it had personally conducted the preliminary inquiry?
The process of Disciplinary proceedings from the point of issue of charge sheet up to the disposal of the case after receipt of the report of inquiry officer have to be objective and bonafide. Such objectivity precludes pre-set opinion in the minds of the dealing authority. The roles of the Investigating officer and that of the disciplinary authority necessitate different mind-set. The investigating officer is probing transactions in terms of a reference on a fact-finding mission. His report establishes only prima facie conclusions. These are to be tested for their accuracy in the inquiry by allowing the charged officer full freedom to present his counter-arguments and evidences against the allegations. If the Investigating officer is to act as the disciplinary authority he cannot be considered as unbiased, since having conducted the investigations and arriving at tentative conclusions, his mind-set gets pre-fixed and cannot be considered open and objective. He has in short to adjudicate against his own earlier findings in his report. This results in a role-conflict.
However the CVC guidelines do not prohibit it and thus Technically there can be no bar for the same officer to conduct investigation and also to act as disciplinary authority. The charged officer cannot object to the arrangement unless he is to make out a case that his interests are adversely affected and the dual-role results in miscarriage of justice. Initially he will not be able to make such an plea. But this definitely cannot be considered an ideal situation. If decision of the disciplinary authority on account of the inherent contradictions in the role-conflict turns subjective, and results in getting orders issued by the disciplinary authority reversed in subsequent appeal or judicial review, it does not bring credit to the disciplinary management system. At this stage the Charged officer will use this as a powerful plea. Bonafide inquiry process is a pre-requisite for objective decisions and on this ground the dual role is not recommended
The special feature of a departmental inquiry is that the employer conducts both the prosecution and the adjudication. The inherent weakness of the system is neutralised by
dividing the functions of prosecution and adjudication amongst different officers and when this is combined, it only weakens the process and not add strength to it.
What are the Differences between the Inquiry Procedures for Major and Minor Penalty Cases?
The salient differences are listed below:
i. Major penalties result in withdrawing existing benefits or reducing the same. After a major penalty is inflicted, the delinquent officer cannot continue to enjoy the same benefits that he had earlier before the penalty was inflicted. On the other hand the imposition of a minor penalty does not result in withdrawing existing benefits, but denies one or more of benefits to accrue in future. Reduction of one increment in the existing scale means loss of part of the existing salary. This is a major penalty. The salary that the employee gets after the punishment is less than that he was earlier getting. On the other hand if he is given a punishment of stoppage of one increment (next increment), his present salary is not disturbed, but a future increase is stopped.
ii. Awarding Minor penalties by their nature is generally deemed as an administrative process and most of the facilities available to the delinquent officer with regards to submission of his defence in respect of a major-penalty inquiry are not available to him. In fact Article 311 of the Constitution, providing "reasonable opportunity" to the delinquent officer covers only major-penalty inquiries and does not apply in case minor penalty-enquiries. In particular judicial courts have also held that a delinquent officer awarded the penalty of "censure" by his employer is not eligible to demand provisions of natural justice. This is so because the employer himself has accepted a very lenient view in these proceedings, it is essentially deemed an administrative process, though conducted under statutory regulations. What all is needed is that the prescribed procedure as per DA regulations to be strictly followed and punishments, if any, awarded should be for valid reasons.
iii. An oral inquiry is not compulsory for a minor penalty proceeding, while it is a must when major penalties are to be awarded. When no oral inquiry is conducted for a minor penalty proceeding, no appointment of inquiry officer and presenting officer will be made.
iv. The charge sheet issued for minor penalties need not contain an article of charge and may consist of only a statement of imputations, while in respect of a major penalty inquiry both articles of charge and statement of imputations of misconduct must accompany the memorandum of charge-sheet.
Can Disciplinary Proceedings be Instituted against Retired Officers of PSB?
DA Regulations of PSBs are applicable only in respect of officers while in service. They cease to be applicable once an officer retires from service either on reaching the age of superannuation or otherwise. However Departmental Proceedings can be instituted before retirement (just a few days prior to retirement) by serving the charge sheet and oral inquiry proceedings can be continued and completed after retirement.
Provisions of the prevention of corruption act, 1988 can be invoked by CBI/CVC in the case of officers after their retirement, and they could be prosecuted for detected offences committed by them, provided the alleged offence was committed by them while in service.
Though DA Regulations etc. are not applicable to retired officers, they are governed by respective Pension Rules/Regulations applicable to them. Specific provisions in these Rules/Regulations enable the employer to institute disciplinary proceedings.
Commutation of pension during departmental or judicial proceedings:
An employee against whom departmental or judicial proceedings have been instituted before the date of his retirement or a person against whom such proceedings are instituted after the date of his retirement shall not be eligible to commute a fraction of his provisional pension, or pension, as the case may be, authorized under these regulations during the pendency of such proceedings.
However, recent judgements by Courts have taken the view that Disciplinary Proceedings cannot be initiated against an employee after retirement, but PSBs are yet to fall in line with these judgements.