Procedure for imposing Major Penalties as per CCS (CCA) Rules

Article

Procedure for imposing Major Penalties as per CCS (CCA) Rules

 

Rule 14 of CCS (CCA) Rules lays down the procedure for conducting an enquiry before imposing major penalties. The enquiry has to be conducted as per due process of law, keeping in view the rules of natural justice. Rule 14 stipulates as under:

 

Enquiry Procedure:

(1) Institute Enquiry: No order imposing major penalties specified above shall be made except after an inquiry held, as far as may be, in the manner provided under Rule 14 and Rule 15 or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act.

 

(2) Internal Committee’s deemed to be Enquiring Authority: The Internal Committee established in each ministry or Department or Office for inquiring in complaints of sexual harassment shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules. The internal committee shall hold the inquiry, as far as practicable, in accordance with the procedure laid down in these rules.

 

(3) Charges of misconduct: The disciplinary authority shall draw up:

(i) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge based on complaint of victim;

(ii) a statement of the imputations of misconduct or misbehavior in support of each article of charge, which shall contain-

(a) a statement of all relevant facts including any admission or confession made by the government servant;

(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

 

(4) Delivery of article of charge sheet and documents: The disciplinary authority shall deliver to the government servant:

•      a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior;
•          a list of documents and witnesses by which each article of charges is proposed to be sustained; and
•       it shall require the government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.

 

(5)(a) Defence Statement & appointment of Presenting Officer: On receipt of the written statement of defence, the internal committee may itself inquire into such of the articles of charges as are not admitted, and where all the articles of charges have been admitted by the government servant in his written statement of defence, the internal committee shall record its findings on each charge after taking such evidence as it may think fit. The disciplinary authority may refer back the report for further enquiry, where called for. .

(b) If no written statement of defence is submitted by the government servant, the disciplinary authority may refer it to internal committee.

(c) Where the internal committee holds an inquiry into such charge, the disciplinary authority may appoint a government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.

 

(6) Forwarding documents to Internal Committee: The disciplinary authority shall forward to the internal committee -

(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehavior;

(ii) a copy of the written statement of the defence, if any, submitted by the government servant;

(iii) a copy of the statements of witnesses, if any;

(iv) evidence proving the delivery of the documents to the government servant; and

(v) a copy of the order appointing the "Presenting Officer".

 

(7) Personal appearance of charged officer: The government servant shall appear in person before the Internal Committee on such day and at such time within ten working days from the date of receipt by the inquiry committee of the articles of charge and the statement of the imputations of misconduct or misbehavior, as internal committee may, by notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the internal committee may allow.

 

(8)(a) Appointment of Defence Assistant: The government servant may take the assistance of any other government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits;

 

The government servant may take the assistance of any other government servant posted at any other station, if the internal committee having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.

 

However, the government servant shall not take the assistance of any other government servant who has three pending disciplinary cases on hand in which he has to give assistance. The government servant may also take the assistance of a retired government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf.

 

(9) Plead guilty or Innocent: If the government servant who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the internal committee, such authority shall ask him whether he is guilty or has any defence to make. If he pleads guilty to any of the articles of charge, the internal committee shall record the plea, sign the record and obtain the signature of the government servant thereon.

 

(10) If admits guilt report findings: The internal committee shall return the findings of guilt in respect of those articles of charge to which the government servant pleads guilty.

 

(11) Presenting Officers to produce evidence: If the government servant fails to appear within the specified time or refuses or omits to plead, the internal committee may require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge. The internal committee shall adjourn the case to a later date not exceeding thirty days, after recording an order that the government servant may, for the purpose of preparing his defence inspect within five days of the order or within such further time not exceeding five days as the internal committee may allow, the concerned documents as also submit a list of witnesses to be examined on his behalf;

 

In case the government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list the internal committee shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. The government servant shall indicate the relevance of the documents required by him to be discovered or produced by the government.

 

The internal committee shall give a notice within ten days of the order or within such further time not exceeding ten days for the discovery or production of any documents which are in the possession of Government but not mentioned in the list.

 

(12) Seeking production of documents: The internal committee shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with a requisition for the production of the documents by such date as may be specified in such requisition.

 

However, the internal committee may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.

 

(13) Seek production of documents etc.: On receipt of the requisition referred to in above, every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiry committee:

 

However, if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiry committee accordingly. The internal committee shall, on being so informed, communicate the information to the government servant and withdraw the requisition made by it for the production or discovery of such documents.

 

(14) Examination of witness: On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross examined by or on behalf of the government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the Internal Committee. The internal committee may also put such questions to the witnesses as it thinks fit.

 

(15) Production of new evidence/ witnesses: If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the internal committee may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the government servant or may itself call for new evidence. It may recall and re-examine any witness and in such case the government servant shall be entitled to seek a copy of the list of further evidence proposed to be produced and adjourn the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The internal committee shall give the government servant an opportunity of inspecting such documents before they are taken on the record. The internal committee may also allow the government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice.

 

New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

 

The internal committee should not permit any evidence or examination based on the aggrieved woman‘s character, personal life, and conduct, personal and sexual history. It may disallow any questions which is derogatory, irrelevant or slanderous to the aggrieved woman.

 

(16) Statement of Defence: When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. A copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.

 

(17) Examination of himself: The evidence on behalf of the government servant shall then be produced. The government servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the internal committee according to the provisions applicable to the witnesses for the disciplinary authority.

 

(18) Questioning by Inquiry Committee: The internal committee may, after the government servant closes his case, and shall, if the government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the government servant to explain any circumstances appearing in the evidence against him.

 

(19) Hear Presenting Officer: The internal committee may, after the completion of the production of evidence, hear the Presenting Officer or permit them to file written briefs of their respective case, if they so desire.

 

(20) Ex-parte: If the government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the internal committee or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.

 

(21)(a) Where  disciplinary authority not competent to impose major penalty: Where a disciplinary authority competent to impose any of the minor penalties (but not competent to impose any of the major penalties) has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any internal committee appointed by it, is of the opinion that the major penalties should be imposed on the government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.

 

(b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.

 

(22) Change of Inquiry authority: Whenever any internal committee, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself.

 

However, if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided.

 

(23) Preparation of Report: After the conclusion of the inquiry, a report shall be prepared and it shall contain-

(a) the articles of charge and the statement of the imputations of misconduct or misbehavior;

(b) the defence of the government servant in respect of each article of charge;

(c) an assessment of the evidence in respect of each article of charge;

(d) the findings on each article of charge and the reasons therefor.

 

If in the opinion of the internal committee the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge.

 

However, the findings on such article of charge shall not be recorded unless the government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

 

The internal committee, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include:-

(a) the report prepared by it.

(b) the written statement of defence, if any, submitted by the Government servant;

(c) the oral and documentary evidence produced in the course of the inquiry;

(d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and

(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.

 

The internal committee may report the findings in respect of each charge after evaluation of material and evidence placed before it whether:

a)  charge is proved;

b)  charge not proved;

c)  complaint is malicious or not?

 

The committee may recommend action to be taken against the person who has made a complaint, if the committee arrives at the conclusion that the allegation is malicious or the aggrieved woman or the person making the complaint has made the complaint knowing it to be false or has produced any forged or misleading document. The committee may also recommend action against any witness if it comes to the conclusion that such witness has given false evidence or produced any forged or misleading document.[DoPT OM No. 11013/2/2014 Estt (AIII) Dated the 27 the November 2014]

 

Internal committee shall take note of the respective socio-economic positions of the parties, their hierarchy in the organization, the employer-employee equations and other power differences while appreciating the evidence and evaluating penalty and amount of compensation etc.

 

The report should be self-speaking supported by cogent reasons. It should give specific recommendations about the penal action that may be taken, where called for.

 

Order Sheet-Minutes: Internal committee should prepare minutes of the proceedings of every meeting of the committee in chronological order on the order sheet. The minutes should also contain names of members present along with their signature. 

Judicial/ CIC Pronouncements: The disciplinary authority or the internal committee should also take note of the judgments passed by the Judicial Courts, from time to time, so that the enquiry reports if challenged meets the requirements of judgments so pronounced. In addition they should also follow the office orders, instructions given by the government and the CIC, from time to time.