200. Knowledge Spectrum – Discipline – SPEAKING ORDERS
355. What are the instances in the course of disciplinary proceedings wherein speaking orders are to be issued?
Firstly it must be understood that the speaking orders is not confined to disciplinary proceedings. All orders having an impact on the employees are to be speaking orders. For example, rejection of the request of an employee seeking stepping up of pay on par with junior should be through speaking orders. Disposal of a representation against supersession in the matter of promotion should also be through speaking orders.
It needs no emphasis that orders passed in the course of disciplinary proceedings have a far reaching impact on the employee because they relate not only to career prospects and monetary issues but also have a bearing on the honour and reputation of the employee concerned. Thus there are all the more stronger reasons for passing reasoned orders while conducting disciplinary proceedings.
An illustrative and non-exhaustive list of instances when speaking orders are required to be issued in the course of disciplinary proceedings is as under:
► Deciding the request of the Charged officer on defence documents and witnesses
► Deciding on the request for change of Inquiring Authority
► Deciding on the request of the charged officer for engagement of legal practioner for the purpose of defence
► Deciding on the request of the charged officer for engagement of a defence Assistant from out station
► Deciding on the request for adjournment
► Disposal of the appeal or review of revision application.
→ Appeal against suspension
→ Appeal for enhancement of subsistence allowance
Decision regarding the treatment of period of suspension
356. There are some orders which are based on subjective satisfaction of the disciplinary authority. Under such circumstances, what reason circumstances, what reason can be given in the order?
No doubt there are some areas where the decision is made based on the subjective satisfaction of the authority concerned as in the instances where the rule specifically and explicitly indicates in some areas that the authority may decide “having regard to the circumstances of the case. For example, the request for engagement of legal practioner as defence assistant may be permitted by the Disciplinary Authority “having regard to the circumstances of the case". Rule 14(8)(a). Similarly, Rule 16(1) (b) provides that for imposing a minor penalty, the provisions of rule 14(3) to 14(23) may be followed if the disciplinary authority is of the opinion that such inquiry is necessary."
Even in areas of exercise of discretionary powers, the orders should indicate application of mind. Besides, although some of the powers appear purely discretionary, there are guidelines for exercise of such powers. For example, MHA, DP&AR OM. No. 11012/7/83-Estt (A) dated the 23rd July 1984 lays down a list of non-exhaustive list of circumstances wherein the discretion is to be exercised in favour of the delinquent employee. Decision making authority may consider stating that the delinquent official has not justified the engagement of legal practioner and that the special circumstances (comparable to those mentioned in the above OM) do not exist in the present case.
Two important factors in this regard are:
(a) There must be evidence of application of mind (b) Referring to, if not reproducing in the order, the submissions of the applicant and the relevant rule position will normally be a clear indication of application of mind.
Post a Comment