Conduct & Disciplinary Rules – 37

Case Law on Conduct rules

11. Meaning of 'unbecoming conduct': All the conduct rules, particularly the part relating to unbecomingness is to be judged from a robust commonsense point of view on a reasonable standard. The question what is unbecoming is a relative term. Mere drinking of alcoholic drinks in the company of girls not in a public place cannot be said to be immoral, even if the girls happened to be working as receptionists in a hotel which is no longer a degrading profession for women.

Ghulam Mohiuddin XW.Bengal AIR 1964 Cal. 503H.C

12. Meaning of 'unbecoming conduct': When a magistrate ordered on three different occasions that the woman produced on each such occasion should be taken to his residence and kept the woman at his residence in his company on all these occasions for periods varying from 2 hours to the whole night, it was held that even though there was no positive evidence of any immoral act on his part, still he was found guilty of the charge of the 'conduct unbecoming of a government servant'.

UP XOP Gupta AIR 1970 SC 679.

13. Meaning of 'unbecoming conduct': The appellant government servant stayed in a lodge, had not paid the rent even after the bill was sent to him or claimed HRA from the govt. without paying the rent to the lodge, or had done some favours by virtue of his official position and was expecting that recovery of rent may be waived by the lodge, or that his financial position was so weak that he could never have been expected to pay the rent. They may indicate a conduct unbecoming of a government servant. But, an innocent, indiscreet act on the part of the appellant in not paying the rent in the hope that he can pay the same as soon as the monthly rent is fixed, cannot be characterized as conduct unbecoming of a government servant, especially when a government servant is permitted to have credit facilities with a bonafide trader under Rule 16 of the Conduct Rules. The appellant has received letters of appreciation and encomiums have been showered on him for his abilities. When even a small recognition or verbal appreciation of the work done by subordinate officers has almost become a fare phenomenon in government service it is no mean achievement for the appellant to have received letters of appreciation and encomiums for the good work done from superior officers of different designations and rank and at different points of time. That he had to suffer the agony of pursuing litigation lasting over a period of more than two years is itself a sufficient punishment for the innocent, indiscreet act committed by him. The impugned order removing him from service has, therefore, to be quashed.

R.Srinivasan XUOI (1982) 1 MLJ 381 H.C

14. Unauthorised occupation of Government quarters is not misconduct.

(1994) 27 ATC 704 Calcutta

15. Failure to report acquisition of assets by spouse is not misconduct unless it is out of funds of the Government Servant.

(1992) 19 ATC 17 Bangalore

Conduct & Disciplinary Rules – 36

Case Law on Conduct rules

6. The government servants are entitled to form an association and even if the said association is not recognized by the govt., such an association also has the right to file writ petitions in respect of any common grievance of the members of the association. This can happen only by the persuasion of many, by a few officials who take a leading part. Can such persuasion be characterized as instigation or deceit? Certainly not. But, that is what exactly has been done by the Disciplinary Authority in this case. Having considered the facts and circumstances of this case, I am convinced and I am constrained to hold that the institution of the Disciplinary Proceedings and the imposition of penalty of dismissal against the petitioners was a vindictive action by the Disciplinary Authority against the petitioners, as according to it these two petitioners were instrumental in filing the writ petitions. It is amazing that the Disciplinary Authority failed to realize the impropriety of instituting Disciplinary Proceedings against the petitioners on a charge of the nature set out earlier and spending considerable public time over it and imposing the penalty of dismissal and that the appellate authority confirmed the orders.

A.P.S.K.Sangh (Railways) X UOI AIR 1981 SC 98, V.K.Parameswaran X UOI & others (1982) 1 SLJ 516 Karnataka H.C.

7. Senior officers must exhibit exemplary conduct: Higher the ladder the officer scales in the echelons of service, greater should be the transparency of integrity, honesty, character and dedication to duty... The rights - constitutional or statutory-carry with them corollary duty to maintain efficiency, integrity and dedication to public service.."

K.Kandaswamy X UOI (1995) 6 SCC 162. 67.

8. Meaning of 'unbecoming conduct': Rule 3 (1) (iii) of CCS (Conduct) Rules, 1964 says that every government servant shall at all times do nothing unbecoming of a government servant, does not suffer from any vagueness or indefiniteness and is not constitutionally invalid on that ground. There cannot be an exhaustive list of actions which would be unbecoming of a government servant. Instructions under Rule 3, No. 22 give sufficient guidance in the matter of judging as to what is unbecoming conduct. Each case will have to be decided on the attendant circumstances in the context of norms of conduct of usually accepted standards of morality, decency, decorum and propriety.

Inspecting Asst. Commr. of Income tax X SK Gupta 80 CWN 74, Mahendra Kr. X UOI and anr. (1984) 1 SLJ 34 (AP).

 

9. Meaning of 'unbecoming conduct/misconduct': The rules are not exhaustive in relation to the code of conduct specified in these rules. There exists what is known as an 'unwritten code of conduct which must be observed by every government servant... It is the duty of the government servant to be loyal, diligent, faithful and obedient. The liability to respect and the recognition of a subordinate role on the part of an employee also flows from the nature of the contract. Thus, disobedience, insubordination and acts subversive of discipline are the recognized misconducts because these acts are contrary to the obligations imposed on an employee by the nature of contract itself and can freely be treated as implied. It is for the employer to consider reasonably what conduct should be treated as misconduct. No general rule in this behalf can be laid down.

Agnani X Badridas & others (1969) 1 LLJ 684 (SC).

10. Innocent action on the part of a person cannot be held as misconduct.

UOI XJ.Ahmed AIR 1979 SC 1022.

 No malafide intention and no revenue loss. Cannot be treated as lack of devotion.

SLJ 1992 (3) 28 S.C 

Conduct & Disciplinary Rules – 35

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

I.                DEPARTMENTAL INQUIRY

Departmental inquiry is held:

(a) in the manner laid down in Rules 14 & 15 of the CCS (CCA) Rules for imposing MAJOR penalties;

(b) in the manner laid down in Rule 16 of the CCS (CCA) Rules for imposing MINOR penalties; and

(c) in the manner laid down in Rule 18 of the CCS (CCA) Rules for COMMON proceedings where two or more Government servants are concerned.

What is DEPARTMENTAL INQUIRY

A departmental inquiry is not a Criminal Trial in a Court of Law for imposition of punishment. It is not even lis between two parties which is decided by a third person. It is only a proceeding instituted by the Government in its capacity as the employer against its employee for the satisfaction of the mind of the Government as to whether the employee concerned has committed misconduct deserving imposition of penalty therefor. The inquiry is relevant to the contract of service between the parties, viz., the employer and the employee.

[A.R.R. Deshpande v. Union of India, 1971 (2) SLR 776 (Delhi).]

In cases of both criminal prosecution and departmental proceedings, the views and advice of the U.P.S.C. and the C.B.I. are to be taken into consideration by the Disciplinary Authority.

Before commencement of departmental disciplinary proceedings or criminal prosecution, a Government servant may be placed under suspension in public interest under the provisions of Rule 10 of CCS (CCA) Rules which will be discussed hereinafter.

Case law on Conduct Rules

Dear Comrades

Here some of the judgments related to conduct rules are furnished. Please read everything carefully and note down all these. When you are preparing replies to the charge sheets and explanation, you can make use of it. That’s why all these items are sent to you in word file

I.  CASE LAW ON MISCONDUCT

1. Meaning of misconduct: Misconduct is a generic term and means 'to conduct amiss; to mismanage; wrong or improper conduct; bad behaviour, unlawful behaviour or conduct'. There is a distinction between misconduct and grave misconduct. Misconduct in order to earn the epithet of gravity has to be gross or flagrant. Consequently the degree of misconduct to justify dismissal has to be higher or more serious. In order to gauge gravity of misconduct what matters is not frequency. It cannot, therefore, be contended that a single act of misconduct, howsoever grave, can never result in dismissal. What really matters is the enormity of the misconduct.

Bhagwat Parshad XIGPAIR 1970 Punj. 81.

2. Misconduct committed in private life: It is not correct to contend that a govt. servant is not answerable to govt. for misconduct committed in his private life. Assuming the contention to be correct, the result will be that, however reprehensible or abominable a govt. servant's conduct in his private life be, the govt. will be powerless, to dispense with his services unless and until he commits a criminal offence or commits an act which is specifically apprehended. This would clothe govt. servant with immunity which would place the govt. in a position worse than that of an ordinary employer. Art. 311 of the constitution does not restrict the power of the state to dispense with the services of any govt. servant for conduct which it considers to be unworthy or unbecoming of an official of the state, nor does it fetter the discretion of the state as to what type of conduct it shall consider sufficiently blameworthy to merit dismissal or removal. The state has been invested with absolute discretion in this respect. It can demand a certain standard of conduct from government servants not only when performing their official duty but in their private lives as well.

Laxminarain X Dist. Magistrate AIR 1960 ALL 55.

3. The right to demonstrate to improve prospects in service is a right to visible manifestation of feelings or sentiments of an individual or groups and this communication by one's idea to others to whom it is intended (is not a misconduct).

Balakrishnan Nair X Kerala 1980 KLT 264.

4. A mere technical violation is not misconduct. This means, e.g: a withdrawal form was passed without verifying the signature, but amount was correctly made to the correct party. 1992 (2) SLJ CAT 40 Cuttack

5. Peaceful assembly without any speech or slogans in office premises is not misconduct.

D (1994) 27 ATC 265 Madras.

 

  

Conduct & Disciplinary Rules – 34

 

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

I.                Government of India's instructions

1.      Domestic inquiry permissible where allegations have not been examined by the Court

The point to be taken note of is that one identical set of facts and allegation may be sufficient to constitute a Criminal Offence as well as misconduct not amounting to Criminal Offence, but punishable under the CCS (CCA) Rules. If the facts of allegations had come to be examined by a court of competent jurisdiction and the court has given a finding that the allegations are not true, then it is not permissible to hold a departmental inquiry in respect of the charge based on the same facts of allegations. If, on the other hand, the court has merely expressed a doubt as to the correctness of the allegation, then there may be no objection to hold a departmental inquiry on the same allegations if better proof than what was produced before the court or was then available is forthcoming. Then again if the court has held that the allegations are proved but do not constitute the Criminal Offence with which the Government servant is charged, then also there would be no objection to hold a departmental disciplinary action so also it is permissible to hold a departmental inquiry on the basis of the said allegation if such proved allegations are considered good and sufficient ground for departmental inquiry after the acquittal, in respect of a charge which is not identical with or similar to the charge in the criminal case, and is not based on any allegations which have been negatived by the Criminal Court. Furthermore, if the allegation had not yet been examined by a Court of law but are considered good and sufficient grounds for departmental disciplinary action, there is no bar to taking such action.

[Govt. of India, M.H.A., O.M. No F. 43/57/64-AVD (iii), dated the 29th November, 1966.]

 

Conduct & Disciplinary Rules – 33

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION 

Whether departmental proceedings can be initiated even after the acquittal of an employee by a Criminal Court

Acquittal of an employee cannot operate as res judicata to a disciplinary inquiry into the same charges of which he has been acquitted by the Criminal Court. The Criminal Court and Domestic Tribunal- both operate in different fields. An accused may be acquitted for want of proper evidence or benefit of doubt, but a Domestic Tribunal can rely even on hearsay evidence. Therefore, the decision of the Criminal Court cannot operate as res judicata and certainly not conclusive so far as the disciplinary proceedings is concerned. Accordingly, the initiation of disciplinary proceeding after the acquittal of an employee cannot be violative of any fundamental rights of the employee or cannot be branded as arbitrary or mala fide.

[O.R.T.C. Ltd. v. Loknath Patra 1988 Lab IC 595 (600) (Ori)(D.B.).]

Merely because the accused is acquitted, the power of the authority, to continue the departmental inquiry is not taken away nor its discretion any way fettered

The question whether or not the departmental inquiry pending against the employee involved in the criminal case should be continued even after his acquittal in a criminal case is a matter which is to be decided by the department after considering the nature of the finding given by the Criminal Court. Normally where the accused is acquitted honourably and completely exonerated of the charges, it is not expedient to continue a departmental inquiry on the very same charges or grounds or evidence. However merely because the accused is acquitted, the power of the authority concerned to continue the departmental inquiry is not taken away nor its discretion any way fettered.

[Corporation of City of Nagpur and another v. Ram Chandra G. Modek and another, AIR 1984 S.C. 656.]

 

It is not in dispute that the proposed departmental inquiry is also related to the self same offence under Section 5 (2) of the Prevention of Corruption Act. The judgment acquitting the appellant of the charges under Section 5 (2) became final and it is clearly indicated that it was on merits. Therefore, once the acquittal was on merits, the necessary consequence would be that the delinquent is entitled to reinstatement as if there is no blot on his service and the need for the departmental inquiry is obviated. It is settled law though the delinquent official may get an acquittal on technical grounds, the authorities are entitled to conduct departmental inquiry on the self-same allegations and take appropriate disciplinary action.

[Sulekh Chand and Sulekh Chand v. Commissioner of Police and others 1994 (5) SLR 742.]

There is no bar to hold departmental proceedings in respect of a charge which was not covered by the acquittal order by the court

The respondent was prosecuted for offence under the Prevention of Corruption Act for holding assets disproportionate to his known sources of income. There were also charges relating to his having acquired assets without permission of the Government in violation of the rules. In an application moved before the Andhra Pradesh Administrative Tribunal, the Tribunal held that if the respondent was acquitted in the criminal case, departmental inquiry cannot be held for the very same charge. The respondent was acquited in respect of the charge of acquiring assets disproportionate to his known sources of income. The Tribunal also held that proceedings can be held in regard to other charges. The Government ordered that further action in the criminal case of allegation of disproportionate assets be dropped. A fresh charge memo was issued in regard to violation of the rules by acquiring and disposing of properties without informing and taking permission from the Government. This was also challenged and the said petition was allowed by the Tribunal. This order of the Tribunal was challenged in the Supreme Court. The Supreme Court set aside the order of the Tribunal and held that there was no infirmity in the fresh charge memo. relating to the acquiring or disposing of properties without permission of the Government.

[State of A.P. & another v. C. Muralidhar J.T. 1997 (7) SC 59.] 

Conduct & Disciplinary Rules – 32

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

Law in regard to simultaneous continuance of departmental inquiry and criminal proceedings in respect of a misconduct as laid down by the Supreme Court

Facts:- Bharat Gold Mines Ltd. is a Government undertaking at Colar Gold Fields in Karnataka, where the appellant was appointed as a Security Officer on 31.10.1983. On 2.6.1985, a raid was conducted by the Superintendent of Police at the house of the appellant where a mining sponge of gold ball weighing, 4.5 grams and 1276 grams of "gold bearing sand" were recovered. Thereafter, on the same day, a First Information Report (F.I.R.) was lodged at the police station and a criminal case was registered against the appellant, who was placed under suspension on 3.6.1985. The next day, namely, on 4.6.1985, a charge-sheet was issued proposing a regular departmental inquiry with regard to recovery of the above articles from his house. On 11.6.1985, the appellant made a representation to the Disciplinary Authority denying the allegation made against him in the charge-sheet and pleaded that the entire episode was a concoction. He prayed that the departmental proceedings initiated against him may be dropped or may in the alternative be postponed till the conclusion of the criminal proceedings against him on the basis of the F.I.R. lodged against him at the police station on 2.6.1985. The representation was rejected on 19.6.1985, and the appellant was informed that the disciplinary proceedings would be held against him on 1.7.1985. On 3.2.1987, Judgment in the Criminal case was pronounced and the appellant was acquitted with the categorical finding that the prosecution had failed to establish its case. This judgment was communicated by the appellant to the respondents on 12.2.1987, with a request that he may be reinstated, but the respondents by their letter, dated 3.3.1987 rejected the request on the ground that the appellant had already been dismissed from service on the completion of the departmental inquiry which was conducted independently of the criminal case and, therefore, the judgment passed by the Magistrate was of no consequence. The appellant's departmental appeal against his dismissal was also rejected by the appellate authority by order, dated 22.7.1987.

There is a consensus of judicial opinion on the basic principle that proceedings in criminal case and the departmental proceedings can proceed simultaneously with little exception. Proceedings in a criminal case and the departmental proceedings operate in distinct and different jurisdictional areas. Whereas in the departmental proceedings, where a charge relating to misconduct is being investigated, the factors operating in the mind of the Disciplinary Authority may be many, such as enforcement of discipline or to investigate the level of integrity of the delinquent or the other staff, the standard of proof required in those proceedings is also different than that required in a criminal case. While in the departmental proceedings, the standard of proof is one of preponderance of the probabilities, in a criminal case, the charge has to be proved by the prosecution beyond reasonable doubts. The little exception may be where the departmental proceedings and the criminal case are based on the same set of facts and the evidence in both the proceedings is common without there being a variance.

The conclusions which are deducible from various decisions of the Supreme Court are –

(i)      Departmental proceedings and proceedings in a criminal case can proceed simultaneously as there is no bar in their being conducted simultaneously, though separately.

(ii)    If the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in the criminal case against the delinquent employee is of a grave nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case.

(iii)   Whether the nature of charge in a criminal case is grave and whether complicated questions of fact and law are involved in that case, will depend upon the nature of offence, the nature of the case launched against the employee on the basis of evidence and materials collected against him during investigation or reflected in the charge-sheet.

(iv)   The facts mentioned at (ii) and (iii) above cannot be considered in isolation to stay the departmental proceedings but due regard has to be given to the fact that the departmental proceedings cannot be unduly delayed.

(v)     If the criminal case does not proceed or its disposal is being unduly delayed, the departmental proceedings, even if they were stayed on account of the pendency of the criminal case, can be resumed and proceeded with so as to conclude them at an early date so that if the employee is found not guilty his honour may be vindicated and in case he is found guilty, administration may get rid of him at the earliest.

In the instant case, the Superintendent of Police had raided the residential premises of the appellant and had recovered a mining sponge gold ball weighing 4.5 grams and 1276 grams of "gold bearing sand'. It was on this basis that a criminal case was launched against him. On the same set of facts constituting the raid and recovery, departmental proceedings were initiated against the appellant as the "recovery" was treated to be "misconduct". On the service of the charge-sheet, the appellant raised an objection that the departmental proceedings should be stayed as the basis of these proceedings was the raid conducted in his residence on which basis a criminal case had already been launched against him. He requested that the decision of the criminal case should be awaited, but his request was turned down. The request made for the second time for that purpose also met with the same fate. When the appellant approached the High Court, liberty was given to the respondents to stay the departmental proceedings if they considered it appropriate but they were directed to dispose of the appellant's appeal against the order by which he was placed under suspension. The order of the High Court did not have any effect on the respondents and they decided to continue with the departmental proceedings which could not be attended by the appellant as he informed the Enquiry Officer that he was ill. His request for adjournment of the inquiry proceedings on that ground was not acceded to and the proceedings continued ex-parte against him. He was ultimately found guilty of the charges and was dismissed from service.

In the instant case, the appellant was not paid any subsistence allowance during the period of suspension and the adjournment prayed for by him on account of his illness supported by medical certificates, was refused resulting in ex parte proceedings against him. In the circumstances we are of the opinion that the appellant had been punished in total violation of the principles of natural justice and he was literally not offered any opportunity of hearing. Moreover, as pleaded by the appellant before the High Court as also before us that on account of his penury occasioned by non-payment of subsistence allowance, he could not undertake a journey to attend the disciplinary proceedings, which were held ex parte stand vitiated. There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case and departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant's residence and recovery of incriminating articles therefrom." The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicates that the charges framed against the appellant were sought to be proved by police officers and punch witnesses who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court on the consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, when the appellant is acquitted by a judicial pronouncement with the finding that the raid and recovery at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex parte departmental proceedings to stand. For the reasons stated above, the appeal is allowed, the impugned judgment passed by the Division Bench of the High Court is set aside and that of the learned Single Judge in so far as it purports to allow the writ petition is upheld.

[Capt. M. Paul Anthony v. Bharat Gold Mines Ltd., JT 1999 (2) SC 456; CASES REFERRED TO (1) Delhi Cloth & General Mills Ltd. v. Kushalbhan, AIR 1960 SC 806; (2) Tata Oil Co. Ltd. v. Workmen, AIR 1965 SC 155; (3) Jang Bahadur Singh v. Baij Nath Tewari, AIR 1969 SC 30; (4) Kusheswar Dubey v. M/S Bharat Coking Coal Ltd. AIR 1988 SC 2118; (5) Nelson Motis v. Union of India, AIR 1992 SC 1981; (6) State of Rajasthan v. B.K. Meena (1996) AIR 1997 SC 13; (7) Depot Manager, A.P.S.R.T.C. v. Mohd. Yoursuf Miyan (1997) AIR 1997 SC 2232.]

 

Conduct & Disciplinary Rules – 31

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

I.                Government of India's instructions regarding criminal prosecution  - Prosecution should precede departmental action

The following procedure should normally be adopted in cases of alleged misconduct of Government servant.

2. As soon as sufficient evidence is available for the purpose in the course of investigation in cases of misconduct, whether such investigation is conducted departmentally or through the police (including the Special Police Establishment), action should be taken forthwith. It has been decided that prosecution should be the general rule in all those cases which are found fit to be sent to Court after investigation and in which the offences are of bribery, corruption or other criminal misconduct involving loss of substantial public funds. In such cases, departmental action should not precede prosecution. In other cases involving less serious offences or involving malpractices of a departmental nature, departmental action only should be taken and the question of prosecution should generally not arise. Whenever, however, there is unresolved difference of opinion between the Central Bureau of Investigation and the Administrative Authority concerned as to whether prosecution in Court or departmental action should be resorted to in the first instance, the matter should be referred to the Central Vigilance Commission for advice.

3. Before initiating criminal proceedings advice on evidence should be obtained from Government Counsel, and in more important cases from the Attorney-General or the Solicitor General. Where the conduct of an officer discloses a grave offence of a criminal nature, criminal prosecution should be the rule and not the exception. Where competent authority is satisfied that there is no criminal case which can be reasonably sustained against such officer, criminal prosecution should not, of course, be resorted to; but prosecution should not be avoided merely on the ground that the case might lead to an acquittal.

[Govt. of India, M.H.A., O.M. No. F. 39/30/54-Ests., dated the 7th June, 1955 and No 39/8/64-Ests. (A), dated the 4th September, 1964.]

 

 

 

Conduct & Disciplinary Rules – 30

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

I.                CRIMINAL PROSECUTION

After preliminary investigation, the Disciplinary Authority has to decide whether criminal or departmental proceedings should be initiated.

Criminal proceedings - When

Initiation of criminal proceedings is considered in cases of complaints of bribery, corruption or other criminal misconducts, subject to the condition that sufficient evidence is available to sustain the charges in the criminal prosecution.

Criminal misconduct by a public servant

(1) A public servant is said to commit the offence of criminal misconduct

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in Section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom be knows to have been or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or

(iv) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account for, of pecuniary resources or property disproportionate to his known sources of income. Explanation : (1) For the purposes of this Section "known sources of income means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant."

(2) "Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine" [Section 13 of the Prevention of Corruption Act, 1988.] 

Conduct & Disciplinary Rules – 29

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

(Selective Judgments )

11. It was contended that regard being had to the preliminary proceedings, the accused employee should be taken to have known all about the charges. It was held that whether he knew it or not, he must again be told of the charges which must be specific and all particulars must be stated, without which a man cannot defend himself. It is obvious, therefore, that there was no duty cast upon the accused employee to connect the charge-sheet with any previous proceedings.

[A.R. Mukherjee v. Eastern Rly. (1962) 2 LLJ 537; AIR 1961 Cal. 40.]

12. Confession at the stage of preliminary investigation will not obviate regular inquiry

If any statement is made during preliminary inquiry, then its copy should be supplied to the employee concerned and he should be given a chance to explain or rebut the said evidence. In the absence of any such inquiry it will not be fair to strain the facts and to hold that in view of the admissions the inquiry will not serve any useful purpose.

[Jagdish prasad Saxena v. State of M.B., AIR 1961 SC 1070; (1963) 1 LLJ 325.]

13. Records of the preliminary inquiry/investigation may not be produced during departmental inquiry if the same are not proposed to be relied upon to prove the charges

The evidence recorded during preliminary inquiry is to enable the employer to make up his mind whether to proceed against the delinquent employee or not and if it is not produced during departmental inquiry then there is no defect.

[Indreswar v. Union of India, AIR 1959 ASS 112.]

14. Where the investigating officer's report on the basis of which disciplinary proceedings were started was not made available but there is nothing to indicate that the Inquiry Officer placed any reliance on that report, there is no violation of the principles of natural justice.

[ Nripendra Nath Bagchi v. Government of W.B, (1961) 2 LLJ 312;AIR Cal. 1.]

15. Records of the preliminary inquiry/investigation should be open to inspection by the charged employee if the same are proposed to be relied upon to prove the charges

When copies of statements recorded during preliminary inquiry were not supplied in spite of request and the statements were relied upon by the Inquiry Officer, then principles of natural justice are violated.

[D.S. Nadkarni v. S.K. Sukhtankar, (1973) SLR 615 (Bom. H.C.).]

16. Since statements recorded at preliminary stage do not form part of the formal inquiry proceedings they cannot be utilized at that stage unless they are brought on record and are used either for corroborating or contradicting any witness whose evidence was recorded at preliminary stage. If the Inquiry Officer wants to use them they must be used with the full knowledge of the delinquent employee, otherwise the inquiry will be vitiated.

[Choudhury v. Union of India, AIR 1956, Cal. 662.]

17. The preliminary inquiry report was made the basis of the regular departmental inquiry but the copy of the preliminary inquiry report was not supplied to the charged employee. It was held by the Punjab and Haryana High Court that the employee was prejudiced by non-compliance with the principles of natural justice. It was held that in judicial and quasi judicial inquiry, any material that is used against the accused to his prejudice has to be brought to his notice so that he may have his own say in that regard. Therefore, when the preliminary inquiry report was the basis of the regular departmental inquiry non-supply of copy of such report vitiates the inquiry for violation of the principles of natural justice.

[D.C. Aggrwal v. S.B.I., 1991 Lab IC 1618 (P. & H. High Court).]

18. When the Inquiry Officer has looked to the report of investigating officer and collected information which influenced his determination and when the Investigating Officer himself appeared as a witness during inquiry to explain certain points the refusal to permit inspection of the report resulted in violation of the rules of natural justice.

[Director, P.&T. v. N.G. Majumdar, 1974 Lab IC 1484 (Cal. H.C.).]

Conduct & Disciplinary Rules – 28

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

(Selective Judgments )

1.      The preliminary investigation/enquiry is held when a complaint is received against a particular worker that he has committed a misconduct, but it is doubtful whether the complaint is true or not and it is desired that some investigation should be made to decide whether to proceed with the complaint or to drop the same. Sometimes, even when it is known that some misconduct is committed, it may not be known as to who has committed the same for example, in case of theft, sabotage, damage to property. In such misconducts, it can only be found out after investigation whether any person can be said to be responsible and whether there is sufficient material to proceed against him.

The object of preliminary investigation is not to punish an employee but only to decide whether a regular inquiry proceeding to punish him should be initiated.

[Champaklal v. Union of India, AIR 1964 SC 1584.]

2.      An employee cannot be punished on the basis of preliminary inquiry report

An officer cannot be punished on the findings of a preliminary investigation, without holding a disciplinary action after serving a charge sheet.

[Amalendu Ghosh v. N.E.F. Railway, AIR 1960 SC 992.]

3.      Preliminary inquiry is not quasi-judicial in character

The preliminary inquiry is not governed by the provisions of Article 311(2) of the Constitution.

[A.G.Benjamin v. Union of India, (1967) 1 LLJ 718; (1967) 15 FLR 347 (S.C.)]

4.      Preliminary inquiry may be held behind the back of the accused Government servant (ex parte)

If a confidential inquiry is made of preliminary nature for initiating disciplinary proceedings then the accused employee is not entitled to any show-cause notice.

[R.P. Sinha v. State of Bihar 1983 Lab IC 700 (Patna).]

5.      A preliminary enquiry to frame the charges can be held ex parte

(Nagendra Kumar Roy v. Port Commissioner, Calcutta, AIR 1955 Cal. 56.]

If the Superintendent of Police received an anonymous complaint against one of the subordinates and he wanted to find out before dropping out the matter whether it had any vestige of truth, then he was not bound to hold an inquiry in the presence of the subordinate officer.

[Md. Umar v. I.G. Police, (1957) 2 LLJ 470; AIR 1957 ALL. 767.]

6.    In such inquiries the delinquent has no right to be questioned about any material gathered at this stage. He has also no right to say that he is being condemned behind his back because he is not being condemned at all; but what is being done is that the superior authority is endeavouring for its own satisfaction whether there is any justification for holding a regular inquiry.

[Bhanu Prasad v. State, AIR 1956 Sau.14; Md. Shareef v. Onkar Singh, AIR 1957 All. 217.]

7.      Though it might be necessary in such inquiries to get the explanation of Government servant also, he has no right to be associated with the preliminary inquiry either under the rules or the principles of natural justice.

[Ram Singh v. State of Punjab, 67 FLR 763.]

8.      Since preliminary inquiry can be held ex parte no one is bound to attend preliminary inquiry against him. If he does not attend it, then it can be held ex parte and the person concerned will have to bear the consequences. It cannot, however, be said that he was guilty of wilful. disobedience or of an act subversive of discipline.

[Calcutta Port Commissioner v. Workmen Gaz. of India, Pt. 2.5.3.(ii), dated the 25th January, 1964.]

9.      Preliminary inquiry is not a must

Even though the rules provide for a preliminary inquiry that is of a very informal type to enable the Superintendent to decide whether on the materials before him, any further action is worthwhile, but when the facts are not in dispute, the omission to hold preliminary inquiry will not be fatal to subsequent proceedings. The preliminary inquiry is not in the interest of the delinquent officer but for the satisfaction of the Department.

[A.N. Singh v. Addl. Supdt. of Police, AIR 1960 All. 304]

10.   Preliminary inquiry is no substitute for departmental inquiry

An officer holding a preliminary inquiry may observe the principles of natural justice and permit the charged employee to cross-examine the employer's witnesses and also to produce his defence. Even though full opportunity might have been given to the charged employee at the preliminary stage it does not waive the requirement of affording the said opportunity after a formal charge-sheet is given and it cannot be said to be merely a duplication and is not, therefore, necessary. A formal departmental inquiry becomes unnecessary only if the delinquent employee makes a full confession during preliminary stage, otherwise the formal inquiry cannot be dispensed with.

[J.N. Biswas v. Superintendent of Police, AIR 1954 Cal. 383; Meghraj V. State AIR 1956 Raj. 28 (DB).]

Conduct & Disciplinary Rules – 27

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

COMMENCEMENT OF PENAL ACTION FOR MISCONDUCT

I.                Principal objectives of Preliminary Investigation Committee

The principal objective of a preliminary investigation are to find out

(i)      Who is responsible for the loss or shortage of stores or cash, irregularity, negligence or fraud, etc.;

(ii)     how the loss, storage, etc., occurred;

(iii)   what rule or standing order to prevent or guard against such loss, shortage, etc., were violated;

(iv)   whether there is any defect or lacuna in the extant rules or instructions or the procedure for proper accountable and periodical check and supervision and if so, how such defect or lacuna should be removed.

(v)     Preliminary enquiries may take several forms, depending on the judgment of the vigilance officers and the nature of complaints.

(vi)   The Vigilance Officers may ask for explanations from the concerned employees; they may make physical inspections of work; they may seek evidence from other departmental employee or from persons outside the department (though most serious charges involving outside persons will be referred to other investigating agencies like the Special Police Establishment), they may examine records.

(vii) In some cases, preliminary inquiries may be closed with the examination of the explanations submitted by the accused officers. Very often, however, the veracity of such explanations will be verified with the help of other methods of investigation.

II.              Types of cases that are entrusted to the C.B.I.

(i)      Allegations against a Government servant involving offences under the Prevention of Corruption Act, 1988, like bribery, forgery, cheating, criminal breach of trust, corruption, falsification of records etc.

(ii)     Possession of assets by a Government servant beyond his known sources of income.

(iii)   Allegations which involve inquiries from non-official persons or non-Government records; and

(iv)   Cases of complicated nature which call for expert investigation,

(v)     Once a case is referred to the C.B.I. departmental authorities may not undertake departmental investigation in the matter.

III.            Consultation with the Central Vigilance Commission (C.V.C.)

i.         Advice is tendered by the C.V.C. at two stages, viz. - First Stage Advice -The first stage advice indicates the nature of action to be taken against a public servant involved in cases having vigilance angle.The Commission may advice

(a) closure of the case; or

(b) prosecution; or

(c) major or minor penalty proceedings; or

(d) administrative action, e.g., warning, displeasure, etc. or

(e) procedural improvements or review of existing rules and issue of administrative instructions. Where the advice is for initiating major penalty proceedings, the Commission may recommend the name of a Commissioner for Departmental Inquiries for appointment as the Inquiry Authority by the concerned Disciplinary Authority.

2.  Second Stage Advice- The second stage consultation is necessary before a final decision is taken by the Disciplinary Authority on the report of the Inquiring Authority. The Commission considers the Inquiry Report and advices the Disciplinary Authority on the nature of the penalty to be imposed. The Commission may advice the Disciplinary Authority to impose a major penalty or a minor penalty or even exoneration. However, the advice is not binding on the Disciplinary Authority.

 

Preliminary investigation may end in informal corrective action instead of formal disciplinary proceedings. In some cases, preliminary investigation may disclose doubtful degrees of culpability on the part of officers accused of irregularities. In some others, preliminary investigation may make out a prima facie case for the complaint but the irregularity involved may not be of substantial character. Stray instances of slackness in the performance of official duties, failure to observe the proper administrative channels for official communications are examples of such relatively minor official lapses. These are the cases where the officers accused of irregularities cannot be exonerated from the allegation and yet full-dressed disciplinary proceedings under the Service Rules for the further testing of the complaint may be considered by the disciplinary authority as unnecessary under the circumstances. In such situations, the disciplinary authority would rather like to adopt a via media course by closing the complaint with an informal corrective action administered on the concerned officer than to take up the complaint to the further state of formal disciplinary proceedings.

Conduct & Disciplinary Rules – 26

C.C.S. (C.C.A.) RULES, 1965 – PRELIMINARY INVESTIGATION

COMMENCEMENT OF PENAL ACTION FOR MISCONDUCT

I.                Preliminary investigation - Purpose

1.    Whenever a report or complaint is received against the conduct of a Government servant, a preliminary investigation is conducted to find out whether an offence has taken place and, if so, whether the Government servant concerned is prima facie involved in it.

2.    During the course of such investigation, all available evidences and relevant documents are collected. Written statements are also obtained from the witnesses. Such an investigation may be held ex parte, i.e., in the absence of the officer against whom the complaint has been received.

3.    However, depending on circumstances, he may be given an opportunity to explain his position, which may render the regular inquiry proceedings unnecessary.

4.     Sources of information about misconduct, corruption, etc.

Complaints are the main source of information about corruption, misconduct, etc. They may be received from

(i)      Members of public;

(ii)     Public Association/Organization;

(iii)   Members of Parliament/ Legislative Assembly;

(iv)   Government servants,

(v)     Press Reports, etc.

Anonymous or pseudonymous complaints are not ordinarily acted upon.

5.    The preliminary enquiry is in the nature of a "fact-finding enquiry". The investigation report along with the preliminary evidences collected is examined by the appropriate authority to come to a decision whether a prima facie case exists for instituting criminal prosecution or formal disciplinary proceedings.

6.    At that stage, the question to be decided is not whether the Government servant complained against is guilty or not of the allegation. It has to be considered whether a prima facie case exists of the reported offence/misconduct/misdemeanor/dereliction of duty.

7.    The main purpose is to find out whether an offence has actually taken place, and, so, whether the Government servant is prima facie involved in it. If there is prima facie evidence of commission of criminal offence beyond reasonable doubt, initiation of criminal prosecution is to be considered.

8.    In other cases, involving less serious offences or involving malpractices of a departmental nature, departmental disciplinary proceedings should be resorted to.

9.    Proceedings can be initiated not only for the violation of the provisions of CCS (Conduct) Rules, but also for the misconduct which falls outside the Government servant's official functions if it reflects on his reputation for good faith, honesty, integrity and devotion to duty.

10. Appropriate disciplinary action may be called for even in cases where there is no loss of public funds, but the Government servant's conduct speaks of bad conduct. Cases of shortage or loss due to theft, fraud, negligence, financial irregularity –