DISCIPLINARY PROCEEDINGS (7)-CENTRAL VIGILANCE COMMISSION

Dear friends,
       With a view to check corruption in central services the Government decided to form a committee named santhanam committee to furnish a mechanism to combat corruption. Based on the commission report Ministry of Home Affairs made an executive order by a resolution no. 24/7/64 AVD dtd 11.02.1964 to form the Central vigilance commission .
It is a independent commission. The commission got statutory status by the President ordinance during 25.08.1998.
Later on as per supreme Court order
separate bill was passed in parliament and CVC act published in the Gazatte on 11.09.2003.
      The CVC consists of one chief vigilance commissioner and two vigilance commissioners.
         It is the supervisory body to monitor the vigilance function of all the Central Govt offices and CBI.
          Every Central Govt department should have a vigilance officer who has to report the matters relating with vigilance angle to the CVC.
          CVC advice should be obtained at initial stage in connection with Group A officers vigilance case.Also second stage advice should be got after getting inquiry report of I.O.
          All the cases dealing in vigilance angle should be referred to CVC or by taking reference from CVC manual released then and there.

Tenkasi.                       With Best wishes,
29.05.2018.                    G Mariappan.

DISCIPLINARY PROCEEDINGS (6)-PRELIMINARY INVESTIGATION/INQUIRY

Dear friends,
     Preliminary inquiry/investigation is the inquiry of fact finding whether prima facie case is made out against the suspected employee. Based on this inquiry the disciplinary authority may call for  a departmental inquiry after issuing a formal charge sheet .
      Preliminary inquiry doesn't attract Article 311(2) since this inquiry may be conducted at the back of the suspected employee. Also preliminary inquiry is not a pre condition for issue of charge sheet.

   COMPLAINT. : It is the source of information about the malpractices, corruption, or misconduct of the public servant.
   Complaints are of three types.
1.Genuine 2.Pseudonymous 3.Anonymous.
    First category complaint is made by the person who actually giving the information with his own name. But the other two categories are in the names of third party with pseudonymous or anonymous name.
So the other two categories complaints may be ignored after verifying the genuineness of the complaint.
   However in some cases if  there is an availability of documents which are easily verifiable about the complaint then the pseudonymous or anonymous complaint maybe taken into consideration. Now this consideration is dropped out as per latest DOPT circular.
    Based on the nature of allegation the Disciplinary authority should decide what type of investigation is necessary .
1.Departmental inquiry for misconduct other than offence , negligence, etc.
2. Allegation involving offences under prevention of corruption act 1988.Possession of assets beyond source of income attract CBI inquiry.
3.Cognizable offence of other types attract local police inquiry.

    During preliminary inquiry, available documents should be examined first and then the witnesses and lastly the suspected employee.
     Based on the inquiry report the Disciplinary authority may take action against the suspected employee by issuing a charge sheet or drop the case. So preliminary inquiry is neither compulsory nor a pre condition for taking disciplinary action against the public servant.

Tenkasi.                     With Best wishes,
13.05.2018.                     G Mariappan.

DISCIPLINARY PROCEEDINGS (5)-PRINCIPLES OF NATURAL JUSTICE

Dear friends,
   What is natural justice?.It is a justice which comes naturally to a man or which is part of his nature.
     The main principle is " No man should be condemned unheard". Now the legal position in our country is that no action which adversely affects a person can be taken without giving him a reasonable opportunity of being heard.  This principle is as ancient as man himself.
    In Bible this natural justice shown by God to the world first couple Adam and Eve. When Adam ate the forbidden fruit in Eden garden , Adam and Eve were first given an opportunity by God to defend their action, why Adam ate the forbidden fruit. Thus the principle of "no one should be condemned unheard" is derived from the action of God himself.
    In our constitution Article 311(2) framed in consonance with natural justice. But natural justice principles have no protection in our constitutional provisions. It means a law can be passed by our parliament violating the principle of natural justice but not violating the Constitution. In our country Constitution is supreme not natural justice.
    In Article 311(2) proviso 1 and proviso (2) sub clause a,b,c do not consider natural justice. When any action taken by law against a citizen's interest and against natural justice but as per constitutional provisions it is not termed as Injustice.
    The supreme Court in the case of A.K.Kariapak vs Union of India (AIR1970 SC150) has observed " natural justice can operate only in areas not covered by any law validly made.In otherwords , they do not supplant the law but supplement it".
    Natural justice that is applicable to departmental proceedings also with the following principles.
   01. Audi Alterem partem - it means " hear the other party, no one should be condemned unheard.
    02.Nemo debet esse judex in propria causa- it means no one shall be a judge in his own cause.
    03. Justice should not only be done but should manifestly appear to have been done.
    04. The final order should be a speaking order.
        Whenever a Disciplinary authority orders for inquiry against the Government Servant he should bring into his mind about the principle "Nemo debet esse judex in propria causa-". Because  the inquiring authority should be free from three kinds of bias which will lead to the inquiry against natural justice.
   The three kinds of bias are.
1.Pecuniary bias. 2.Persional bias
3. Bias in the subject matter.
Pecuniary bias can be explained by an incident in Mahabharata.
  In Mahabharata Vidura  was going to Hastinapura to make a compromise with Kauravas and Pandavas to prevent Gurukshetra war. On his way he was welcome by Lord Krishna and provided hospitality. This incident made suspicious to Kauravas about the Vidura integrity as a genuine middle man.

   Persional bias can be explained by the tale of " Manu Neethi Cholan". In that tale the king Manu Neethi Cholan had rendered justice to the mother cow by ordering to kill his son by the same car by which the calf of the mother cow was killed by the prince.
     Even though the king came under persional bias category  the justice delivered by him is a acceptable one .So he was freed from personal bias.
    As far as Bias in the subject matter is concerned that the inquiring authority should not be a witness in the subject matter.

       Principles of natural justice are imported in Disciplinary proceedings in the form of various procedure in Rule 14 inquiry under CCS(CCA) Rules 1965.

Tenkasi.               With Best wishes,
09.05.2018.                G Mariappan.

      

DISCIPLINARY PROCEEDINGS (4)- CONSTITUTIONAL PROTECTION

Dear friends,

     The service of Civil Servants is protected to some extent against dismissal or removal from service under article 311(1),(2). If full protection is provided then running the administration with bribeless, corruption free, and with full dedication of government Servants to service will be a difficult one.

     According to Article 311(1) No Civil Servant shall be dismissed or removed from service by an authority subordinate to that by which he was appointed.

     If a postal assistant is appointed by the senior superintendent of Post offices he should not be dismissed or removed from that post by asst.superintendent of Post offices by Disciplinary action .Also the appointing authority is determined with reference to the post from which the Government Servant is dismissed or removed .

       If the post of appointing authority is down graded but having the same Administrative power of appointing a government servant , has no power to dismiss the Government Servant initially appointed by the previous upgraded post appointing authority.

    That is, the postal assistant appointed by the divisional Superintendent of senior grade shall not be dismissed or removed by the divisional Superintendent if the post is down graded as SPO's from SSPO's.

   According to Article 311(2) No Civil Servant shall be dismissed or removed or reduced in rank without conducting an inquiry and without informing him of the charges framed against him and without giving reasonable opportunity to deny the charges or to prove his innocence.

       But if the Government Servant is found guilty in the inquiry he will not be given any opportunity of making representation on the penalty to be imposed.

      That is the Government Servant will not be given any show cause notice about the proposed penalty to be imposed against him.

     This is the first proviso to the Article 311(2).  This proviso shall not apply

a. When the Government Servant is convicted in a criminal charge

               OR

b.  Where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that holding of inquiry is not possible with recorded reason

            OR

c. Where the President or Governor as the case may be is satisfied that in the interest of the security of the state ,it is not expedient to hold such inquiry.

     This is second proviso to article 311(2).

     According to Article 311(3)  the decision of the authority  not to hold inquiry is final.

There is no appeal against this decision will be made .

         Constitutional protection given under article 311(1),(2) is applicable only to dimissal or removal or reduction in rank.

       So the conclusive point regarding the protection given in Article 311(1),(2) is a limited one.

Tenkasi.                                                                                                         With Best wishes,
01.05.2018.                                                                                                      G Mariappan.