1000 TIT BITS ON DISCIPLINE -186
786. Miscellaneous Clarifications
Venue of Inquiry
Principle of natural justice does not require that hearings should essentially be held at the spot/place of event. Venue can be changed unilaterally. Inquiring Authority has discretion to decide venue. However, it is advisable that proceedings may be held at a place where most of the officials associated with proceedings are available. If Charged Official is immobile on health grounds and he is not in a position to travel, Inquiring Authority may consider acceding to his request for a particular venue.
Selection of venue of inquiry by Inquiring Officer suo motu does not violate principles of natural justice. (Bibhuti Bhusan Pal vs. State of West Bengal, AIR 1967 Cal 2]
787. Mens Rea
Charged Official generally makes a plea that he did not have a guilty mind or mens rea and therefore, he cannot be charged as he is innocent. The Supreme Court has observed [UOI & Others vs. V.J. Ahmed (AIR 1979 SC 1022)] in a number of cases that gross negligence in performance of duty may not involve mens rea but still constitute misconduct for disciplinary proceedings. Charged Official also raises issue of absence of malafide or malice. It is clarified that every act of public servant has to be honest, bonafide and reasonable.
An act is not honest: when it is not just and fair or when it causes wrongful gain* or wrongful loss*.
An act is not bonafide: when it is committed without due care and attention.
An Act is not reasonable: when a fair and prudent person would not do it.
788. Change of Inquiring Authority
In case any Inquiring Authority, initially appointed, goes on transfer or vacates his office due to any other reason, a new Inquiring Authority will have to be appointed by Disciplinary Authority by issuing formal orders under his own signature. Inquiring Authority cannot delegate his power to any other officer. Successor Inquiring Authority can use the evidence taken by his predecessor Inquiring Authority. Conduct of trial by a succeeding judge from the stage where it was left by his predecessor is recognized and legal by the Code of Civil Procedure. On the same analogy, departmental proceedings can be entrusted to another Inquiring Authority if Inquiring Authority originally appointed is not available to continue and complete the inquiry. Principle of natural justice does not debar that evidence taken on record by an Inquiring Authority, as per procedure, cannot be used by his successor Inquiring Authority who completes the proceedings. (Rule 14(22) of CCS (CC&A) Rules, 1965]
789. Examples of Reasonable Opportunity
*Time limits given to Charged Official for completion of certain formalities should not be less than the prescribed limits.
*Inspection of complex and bulky documents need considerable time. Therefore, time limits should be commensurate with the quantum of work involved.
*Completion of formality should not be the guiding parameter; instead completion of task should be the guiding factor.
*Time limits should be fixed in consultation with the Charged Official/Defence Assistant and not ex-parte, after keeping the following factors in mind:
- Size and quantum of work to be completed,
- Travel distance and time and related arrangements,
- Making notes/photocopies.
* Notices for Preliminary Hearing/Brief Hearing/Regular Hearing must contain relevant information relating to exact venue, date, day and time. Charged Official should not be given an opportunity to take benefit of vagueness.
*There is no defect in verbal notice on telephones. However, Inquiring Authority should always give written notice as it becomes a matter of record for use later in courts.
*Charged Official on leave should not be compelled to attend hearing.
*There is no defect in holding hearing on holidays, before or after office hours or in night if circumstances require and there is consent of Charged Official in this regard.
Permitted Defence Witnesses should be extended facilities like TA/DA, absence as duty by Disciplinary Authority.
* Inquiring Authority may seek intervention of Disciplinary Authority/CVO/custodians in locating, retrieval, inspection and supply of photocopies of permitted defence documents.
*Officer permitted as Defence Assistant should be got released for hearing. However, permission of controlling officer to leave H.Q. is necessary. If an officer cannot be relieved by him e.g. due to exigency of work, other official of choice of Charged Official may be permitted as Defence Assistant. It is clarified that though Charged Official has right to have Defence Assistant yet he has no right to have a particular officer as his Defence Assistant who cannot be relieved by his Controlling Officer due to exigency of work.
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