1000 TIT BITS ON DISCIPLINE -123
481. Full-fledged inquiry is essential in minor penalty proceedings
It is obligatory for the disciplinary authority to apply its mind to the question on the basis of the circumstances appearing in the charge sheet and the grounds furnished by the delinquent employee in his representation, if any, whether or not the holding of a full-fledged inquiry is necessary. The record of the case must disclose such application of mind. In the absence of such a material it will be presumed that the discretion has been exercised arbitrarily and the onus will be on the disciplinary authority to prove that in the circumstances of the case the holding of inquiry was indeed not necessary [G. Pentaiah v. Union of India, (1983) SLR 529]. The final decision must contain reasons for the conclusion reached.
482. Imposition of a Minor Penalty cannot be expedient to dispense with a detailed Inquiry
Where the misconduct is serious enough to warrant a major penalty, action cannot be converted into a minor one just to obviate the necessity to hold a detailed inquiry into the matter (C.R. Warrier v. State of Kerala, (1983)1 SLR (Kerala)
483. The important points coming out from these as well as some High Court judgments are given below :
(i) Even the imposition of a minor penalty is a quasi-judicial function requiring a judicial approach [M.L. Gera v. Chief Engineer, SLR (1973)1 Pb. & Hr. 1076).
(ii) The Principles of Natural Justice are applicable (Shadi Lal Gupta v. State of Punjab, AIR 1973 SC 1224].
(iii) Before a minor punishment is imposed, the employee has to be given an opportunity of making a representation in respect of the charge against him. The opportunity should be real and not merely illusory (Shadi Lal Gupta v. State of Punjab, AIR 1973 SC 1224]. The requirement can be met by :
(a) the employee concerned is informed of the allegations against him with full particularity relating to the alleged misconduct. All necessary details must be given so that he can understand them and make an effective reply.
(b) In case the employee makes a request for inspection of some official records before submitting his reply, he should be allowed access to the relevant official records for taking extracts as he likes [Shadi Lal Gupta v. State of Punjab, AIR 1973 SC 1224]. He should also be given suitable extension of time to submit a reply.
(c) The reply, if any, submitted by the employee should be considered objectively.
(iv) The disciplinary authority must act with an open mind and should neither take the decision mechanically nor allow its decision to be influenced by extraneous matters, like directions or comments of others, however highly placed be those persons [M.L. Gera v. Chief Engineer, SLR (1973)1 Pb.&Hr. 1076; Hem Raj v. Delhi Admn., SLR (1973)1 Delhi 349].
(v) The punishment should not be pre-determined and indicated in the show cause notice [M.L. Gera case, supra).
(vi) The final order must be a speaking order. The reason is that it is subject to judicial review [Food Corpn. of India v. A. Prahalada Rao, 2000 AIR SCW 3857].
(vii) In a case where two increments were withheld without cumulative effect after the charges were communicated to the person concerned and his explanation was considered by the competent authority, the Supreme Court held that the procedure had been correctly followed [IDL Chemicals Ltd. v. 7. Gattaiah, (1995) Supp. 3 SCC 573, para 4].
484. REDUCTION IN RANK
In departmental rules, the penalty of 'Reduction in Rank' can be imposed in two shapes – (i) Reduction to a lower stage in the same time-scale; and (ii) Reduction to a lower grade, post, service or time-scale of pay. Some disciplinary rules, for instance, the CCS (CCA) Rules, 1965, mention them as two separate penalties. Both of them are categorized as ‘Major Penalties'.
However, since July 13, 1990, a new minor penalty has been carved out of the major penalty of ‘Reduction to a lower stage in the time scale of pay'. This penalty as modified by DOP&T Notification No. 11012/5/2003-Estt. (A), dated 23.8.2004, in its present form, reads as :
“Reduction to lower stage in the time scale of pay by one stage for a period not exceeding three years, without cumulative effect and not adversely affecting his pension.”
Thus, to be a major penalty, the reduction should by more than one stage or with cumulative effect or for a period exceeding three years or adversely affecting his pension.
484. REDUCTION IN RANK SC Observations
The Supreme Court has held that, "reduction to a lower stage in the same time scale' does not come within the folds of the term 'Reduction in rank’, as used in Art. 311(2) of the Constitution (State of Punjab v. Kishandas, AIR 1971 SC 766]. In this case, the Hon'ble Court observed -
“The expression ‘reduction in rank’ in Art. 311(2), therefore, means reduction from a higher to a lower rank or post when imposed as a penalty. Therefore, an order forfeiting the past service which has earned a government servant increments in the post or rank he holds, however, adverse it is to him, affecting his seniority within the rank to which he belongs or his future chances of promotion, does not attract the article."
485. The reason is that ‘reduction in rank’ must be in physical sense, to some post lower in rank in the hierarchy of the service according to the rules governing the classification of the posts and services. In High Court of Calcutta v. Amal Kumar Roy, AIR 1962 SC 1704, the Supreme Court observed - “The word ‘rank’ can be and has been used in different senses in different contexts. The expression frank’ in Art. 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs.”
Post a Comment