133. Knowledge Spectrum – Discipline APPOINTMENT OF INQUIRING AUTHORITY AND PRESENTING OFFICER - 49
136. Who can be appointed as IO?
The rules do not prescribe any qualification for appointment as IO. However, principles of natural justice require that the person appointed as IO has no bias and had no occasion to express an opinion in the earlier stages of the case. Besides, there are a number of Government Instructions on the subject. IO should be senior in rank to the officer inquired against Terms and conditions for appointment of retired officers as IO
137. Whether the appointment of a retired officer is legally sustainable?
There remained some confusion for some time as to whether the retired officer can be appointed as a Inquiring Authority. The issue has since been set at rest by the Hon'ble Supreme Court vide its judgment in Civil Appeal No. 6743 of 2010 in Union of India & Ors. Vs P.C. Ramakrishnayya -
It is, thus, to be seen that the only difference between rule 14 (2) of CCS (CCA) Rules and rule 9 (3) of Railway Servants (Discipline and Appeal) Rules is that in the former the words "a Board of Inquiry or" are not there. But that is of no significance for the issue in hand.
In Alok Kumar this Court considered in great detail, the meaning of the word "authority" occurring in Rule 9(3) and came to find and hold that a retired officer could also be vested with the delegated authority of the Disciplinary Authority (see paragraphs 26-62) to hold the inquiry. It may also be noted that in Alok Kumar, this Court also considered the decision in Ravi Malik vs. National Film Development Corporation Ltd. (2004) 13 SCC 427 and distinguished it by pointing out that it was in the context of Rule 23 (b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. In paragraph 45 of the judgment, the Court observed as follows:
"45. Reliance placed by the respondents upon the judgment of this Court in Ravi Malik is hardly of any assistance to them. Firstly, the facts and the rules falling for consideration before this Court in that case were entirely different. Secondly, the Court was concerned with the expression "public servant" appearing in Rule 23(b) of the Service Rules and Regulations, 1982 of the National Film Development Corporation. The Court expressed the view that "public servant" should be understood in its common parlance and a retired officer would not fall within the meaning of "public servant", as by virtue of his retirement he loses the characteristics of being a public servant. That is not the expression with which we are concerned in the present case. Rule 9(2) as well as Section 3 of the Act have used a very different expression i.e. "other authority" and "person/persons". In other words, the absence of the words "public servant" of the Government are conspicuous by their very presence. Thus, both these expressions, even as per the dictum of the Court should be interpreted as understood in the common parlance."
In the light of the discussions made above, we are satisfied that the judgments of the Tribunal and the High Court are contrary to the correct legal position and therefore cannot be sustained. We, therefore, set aside the judgment of the Tribunal and the High Court and dismiss the respondent's OA no.531 of 2004 filed before the Tribunal. The appeal is allowed.
138. Who can be appointed as PO?
Rule 14(5) (C) provides that either a Government servant or a Legal Practioner may be appointed as Presenting Officer. Thus the choice is limited to either one of the two explicitly stated categories.
Para 24.1 of Chapter X of the Vigilance Manual (1991 Ed) provides that An officer who made the preliminary investigation or inquiry into the case should not be appointed as Presenting Officer.
[The Group of Ministers which considered the recommendations in the Hota Committee Report has made the following recommendations in this regard:
"10. After comprehensive discussions, the GOM decided that the Departments Ministries should primarily use serving officers as IOs & POs and in important cases, they may request CVC to appoint their CDI as 10. The CVC may also maintain a panel of los/POs from amongst retired officers after due process of screening and empanelment. These officers could also be engaged on advice of the CVC. The remuneration etc. for these los and POs may be fixed, keeping in mind the recommendations of the Hota Committee."
Formal instructions in this matter are yet to be issued at the time of publication of this handbook]
139. When are the IO and PO appointed?
IO and PO are to be appointed if there is a need to inquire into the charges. The need will emerge only when the Charged Officer denies the charges or does not respond to the charge sheet. Thus the appointment of IO PO will arise only after the charge sheet is issued and the charged officer either does not respond to it or denies the charge without convincing the Disciplinary Authority.
140. What is the remuneration payable to the IO and PO?
Honorarium, Transport Allowance and Secretarial Assistance charges have been laid down vide DOPT OM No. No. 142/15/2010-AVD-I dated 31 July, 2012 subject to certain conditions
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