125. Knowledge Spectrum – Discipline Charge Sheet - 41
112. Can the authority who is competent only to impose minor penalty, initiate proceedings for imposition of major penalty?
Yes. Rule 13 (2) of the CCA Rules provides that an authority who is competent only to impose minor penalties can institute proceedings for imposition of major penalties also.
Government of India Department of Telecom Letter No. 68/7/89-Vig.II dated 28 Jul 1987 further provides that if at the end of the proceedings, the above authority reaches the conclusion that imposition of minor penalty will make the ends of justice meet, such authority may impose the penalty without referring the case to the higher authority who is competent to impose major penalty.
Needless to add that if at the end of the proceedings, it is felt that major penalty is to be imposed, the case will be submitted to the authority who is competent to impose major penalty.
113. At what level the decision to initiate the proceedings is taken in respect of the cases wherein the President is the Disciplinary Authority?
As clarified in Ministry of Home Affairs Memo No. F/30/1/6-Ests(A) dated 16 Apr 1969, having regard to the Transaction of Business Rules, decision in such cases are to be taken by the Minister concerned.
114. Can proceedings under CCA Rules be initiated when a criminal case is in progress?
There is no hard and fast rule in this regard. Every case needs to be decided on its own merits. If the criminal case is about a misconduct relating to employment such as acceptance of illegal gratification, corruption, etc. there might not be any bar on initiating departmental proceedings pending criminal prosecution. When the criminal case is complex in nature and involves questions of fact and law, it may not be capable of being handled departmentally. However, there is no bar on simultaneous departmental proceedings.
Normally the employee concerned would object to the departmental proceedings on the plea that by participating in the departmental proceedings, the delinquent would be compelled to disclose his/her defence in advance and the same would seriously prejudice defence in the criminal case. Consequences of staying the departmental proceedings are too well known to need any recapitulation. The reason cited by the delinquent cannot be accepted as a blanket sanction for stay of departmental proceedings as stated in State of Rajasthan v. B.K. Meena and Ors. [(1997)ILLJ746SC] in the following terms:
"The only ground suggested in the decisions of the Supreme Court as constituting a valid ground for staying the disciplinary proceedings is that "the defence of the employee in the criminal case may not be prejudiced". This ground has, however, been hedged in by providing further that this may be done in cases of grave nature involving questions of fact and law. It means that not only the charges must be grave but that the case must involve complicated questions of law and fact. Moreover, 'advisability', desirability', or propriety, as the case may be, of staying the departmental enquiry has to be determined in each case taking into consideration all the facts and circumstances of the case. Stay of disciplinary proceedings cannot be, and should not be, a matter of course. All the relevant factors, for and against, should be weighed and a decision taken keeping in view the various principles laid down in the Supreme Court's decisions."
As pointed out in Kendriya Vidyalaya Sangathan and Ors. Vs. T. Srinivas [JT2004(6) SC 292, (2004)75CC442], the general rule is that parallel proceedings are permissible:
"9. A reading of M. Paul Anthony's case (supra) it is noted that there is consensus of judicial opinion on the basic principle that proceedings in a criminal case and departmental proceedings can go on simultaneously, however this court noticed that certain exceptions have been carved out to the said basic principle."
If however, the employee obtains a stay order from the court against parallel proceedings, departmental proceedings must be stayed forthwith and legal advice sought regarding the possibility of getting the stay vacated.
Post a Comment