DISCIPLINARY PROCEEDINGS

Conduct of a Government servant The Orissa Government Servants’ Conduct Rules, 1959 is in force from 1st May, 1959. Rule-3 provides that, “Every Government servant shall at all time, maintain absolute integrity, decorum of conduct and devotion to duty and shall not commit any act which amounts to personal immorality or failure to discharge duties properly. A Government servant is expected to discharge his duties sincerely and observe utmost discipline of conduct. Any omission or commission in due discharge of his duties will warrant disciplinary action against him as per provisions of the Orissa Civil Services (Classification, Control and Appeal) Rules, 1962.

Disciplinary Proceedings Keeping in view the nature of penalties as specified u/R 13, disciplinary proceeding may be minor or major. Penalty of (i) Fine, (ii) Censure (iii) Withholding of increments (without cumulative effect), (iii-A) Withholding of promotion, (iv) Recovery from pay of the whole, or part of any pecuniary loss caused to Government by negligence or breach of orders and (v) Suspension constitute minor penalty. Penalty of (vi ) Reduction to a lower service, grade or post or to a lower time-scale or to a lower stage in a time-scale, (vi-A) Withholding of increments (with cumulative effect), (vii) Compulsory retirement, (viii) Removal from service which shall not be disqualification for future employment; and (ix) Dismissal from service which shall ordinarily be a disqualification for future employment constitute major penalty.

Minor Penalty Proceeding Rule-16 provides for the following procedure for imposing minor penalties on delinquent Government servants. Communication of statement of allegations on the basis of which it is proposed to take up action against the delinquent employee. The delinquent employee is given an opportunity to make any representation he may wish to make, (b)Such representation, if any is taken into consideration by the disciplinary authority. (c)Consultation with the OPSC wherever necessary is made. Reasoned orders passed by the disciplinary authority shall be communicated to the delinquent employee.

Minor Penalty Proceeding(Cont..) 2. The record in a minor penalty proceeding shall include: i) A copy of the intimation to the Government servant of the proposal to take action against him; ii) A copy of the statement of allegations communicated to him; iii) His representation, if any; iv) The advice of the Commission, if any; and The orders on the charges together with reasons thereof. 3. No minor penalty shall be imposed without giving an opportunity to the Government servant concerned to make any representation he may wish to make.

Major Penalty Proceedings Rule 15 provides for detailed procedure for award of a Major Penalty Proceeding. The salient features are: 1. Enquiry is a must conducted in prescribed manner. 2. The disciplinary authority shall frame definite charges on the basis of the allegations on which the enquiry is to be held, the charges along with statement of allegations shall be communicated to the delinquent employee requiring him to submit his written statement of defence within a reasonable period(first show cause notice)not ordinarily exceeding one month. 3. The delinquent employee shall be supplied with relevant records and can be permitted to inspect and take extracts from such other records considered relevant. 4. On receipt of written statement of defence or if no such statement is received within the time specified, the disciplinary authority may itself enquire into the charges that are not admitted or may appoint an inquiring officer to enquire into the charges. If the disciplinary authority on consideration of the written statement of defence is of the view that the facts of the case do not justify award of a major penalty, may impose minor penalty after recording reasons thereof.

Major Penalty Proceedings(Cont..) 5. The disciplinary authority may nominate a marshalling officer/presenting officer/state representative to present the case before the inquiring officer. The delinquent employee may be allowed to engage a lawyer in case the marshalling officer/presenting officer is a legal practitioner. 6. The enquiring officer shall consider documentary evidences, take oral evidences and permit the delinquent employee to cross examine witnesses. The marshalling officer/presenting officer can also cross examine the delinquent employee or witnesses examined in his defence. 7. On conclusion of the enquiry, the Inquiring Officer shall prepare the enquiry report recording his findings on each charge with reasons. He may recommend award of penalty.

Major Penalty Proceedings(Cont..) 8. The record of enquiry shall include: i) The charges framed against the Government servant and the statement of allegations furnished to him under sub-rule (2) ii) His written statement of defence, if any; iii) The oral evidence taken in the course of the inquiry; iv) The documentary evidence considered in the course of the inquiry; v) The orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry; vi) A report setting out the findings on each charge and the reasons therefore; and vii) The recommendations of the inquiring authority, if any, regarding the punishment to be inflicted. 9. The disciplinary authority shall consider the record of enquiry and record its findings on each charge.

Major Penalty Proceedings(Cont..) 10. (i) (a) A copy of the report of inquiring officer shall be furnished to the delinquent employee with a notice calling upon him to submit representation within 15 days against the findings of the inquiring officer. (b) The representation shall be considered and the major penalty proposed to be imposed shall be communicated to the delinquent employee along with findings on each charge and reasons of disagreement with the findings of the inquiring officer calling upon the delinquent employee to represent against the proposed penalty within a specified time (second show cause notice). OPSC shall be consulted. (c) The disciplinary authority shall pass appropriate orders in consideration of the representation submitted by the delinquent employee and the advice of the OPSC. ii) The orders of the disciplinary authority shall be communicated to the delinquent employee along with copy of the inquiry report, findings of the disciplinary authority, advice of the OPSC etc.

Appeals Appeals as per Rule 22 can lie before the competent authority against an order imposing penalty specified in Rule 13. A group C/Group D employee may file appeal to the appropriate authority as specially empowered by an order of the Governor/as specified in the schedule or to the next higher authority of the disciplinary authority. A Group A/Group B employee can file appeal against the order of penalty to the Governor. In a common proceeding held under Rule 17, appeal shall lie to the next higher authority of the disciplinary authority. Period of limitation for appeals – Three months from the date of receipt of the order imposing penalty. The appeal shall be addressed to the appellate authority and submitted to the authority which imposed penalty. A copy of the appeal may be submitted direct to the appellate authority. The disciplinary authority can withhold the appeal and inform the fact to the appellant.

Appeals(Cont..) The disciplinary authority shall transmit the appeal to the appellate authority with his comments along with relevant records. The appellate authority shall consider the appeal and pass orders setting aside, reducing, confirming or enhancing the penalty or remitting the case to the disciplinary authority as per provisions u/R 29. Consultation with the PSC shall be necessary in appropriate cases. For enhancement of penalty, the appellant shall be given opportunity of making representation. Enquiry is a must for award of major penalty – Save special provisions. Copy of the orders of the appellate authority shall be supplied to the appellant free of cost. The orders of the appellate authority shall be given effect to by the disciplinary authority.

Review 1. As per rule 31, the Governor may on his own motion or otherwise, after calling for the records of the case, review any order and a) Confirm, modify or set aside the orders; b) Impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by the order; c) Remit the case to the authority which made the order or any other authority directing such further action or enquiry as he considers proper in the circumstances of the case; d) Pass such orders as he deems fit after consultation with the commission wherever necessary. 2. In case of imposing or enhancing a penalty, the delinquent employee shall be given an opportunity of making representation. 3. No major penalty can be imposed without conducting enquiry. The reviewing authority can direct for holding enquiry where such enquiry has not been made – Save special provisions.

Review(Cont..) 4. As per rule 32, the authority to which an appeal against an order imposing any of the penalties specified in rule 13 lies may, of its own motion or otherwise, call for the records of the case in a disciplinary proceedings, review any order passed in such a case and after consultation with the Commission, where such consultation is necessary, pass such orders as it deems fit as if the Government servant had preferred an appeal against such order. Provided that no action under this rule shall be intimated more than six months after the date of the order to be reviewed. Note The Governor is the constitutional head of the State. He makes rules under Article 166 (3) for convenient transaction business of the State Government. A case under rule 31 is not required not be submitted either to the Chief Minister or to the Governor under instruction 14 of the instructions issued under the Orissa Government Rules of Business. A review u/r 31 shall be disposed of by the Minister in charge of the Department where the Minister in charge of the Department functions as the appellate authority, orders of the Chief Minister shall be taken for disposal of review petitions. In any case, the Governor need not be bothered. * Ref G.A. Department Letter No. 18650 dated 28.10.1986

Effects of Proceedings 1. Continuance of a minor penalty proceeding – No effect on service benefits, no sealed cover procedure. GA Deptt. OM No.14640, Dt.04.07.1995. 2. Continuance of a major penalty proceeding – Sealed cover procedure. GA Deptt. OM No.3928, Dt.18.02.1994. 3. Major Penalty Proceeding instituted after found suitable for promotion by DPC but before actual promotion – Deemed sealed cover procedure. 4. After conclusion of proceedings – Sealed cover opened – If completely exonerated recommendation of the DPC carried out. GA Deptt. OM No.29699, Dt.01.11.1997. 5. If after conclusion of major penalty proceeding: i) Penalty of fine, censure, withholding of increments, recovery of pecuniary loss caused it imposed, he will be given promotion considering the finding of the sealed cover notionally from the date of his immediate junior. ii) If penalty of “suspension” has been awarded, promotion shall be effective from the date of reinstatement in service. iii) If penalty of “withholding of promotion” is imposed, no promotion can be instantly given – shall be considered in next DPC.

Effects of Proceedings(Cont..) 6. If a major penalty proceeding is imposed in a disciplinary proceeding or found guilty in criminal prosecution – Findings of the sealed cover shall not be acted open. Case of promotion may be considered by next DPC in normal course having regard to the penalty imposed. General Administration Department OM No. 29699 dt. 01.11.1997. 7. Adhoc promotion during pendency of a major penalty proceeding – If continued denial of promotion would not be of public interest, after the expiry of 2 years of the first DPC, his case can be considered in the next DPC normally held and if found suitable, adhoc promotion can be given. GA Deptt. OM No.14640, Dt.04.07.1995. 8. Denial of promotion for disciplinary proceeding/criminal case – Promotion cannot be denied merely because a disciplinary proceeding/criminal case is pending against an employee. To deny the benefit of promotion, it must be shown at the time disciplinary proceedings/criminal cases are pending at the stage when charge sheet has already been issued to the employee and not before that. (Union of India Vrs. K.V. Janakiraman) and in case of a criminal case, it must be established that cognizance has been taken by the Court after filing Charge Sheet. GA Deptt. Letter No.11962, Dt.28.05.2012.

FAQ No – Letter No.122448/Gen, Dt.21.05.2004. 1. Can disciplinary action taken on audit objection? No – Letter No.122448/Gen, Dt.21.05.2004. 2. Can disciplinary proceedings and criminal cases instituted on same set of facts proceed concurrently? Yes – Letter No.19993/Gen, Dt.06.10.2009. If the charge in a criminal case is grave in nature which involves complicated questions of law and fact, it would be desirable to stay the departmental proceedings till the conclusion of the criminal case. DOPT OM No.1101216/2007, Dt.01.08.2007. 3. Is there any form prescribed for suspension orders? Yes – GA Deptt. Letter No.12429, Dt.27.05.1993. 4. Is there any form prescribed for framing changes u/r 15 or 16 of the OCS (CC&A) Rules, 1959? Yes – L.No.36908/Gen, Dt.30.11.2002. 5. Is a second show cause notice mandated in the event the disciplinary authority decides to impose a minor penalty in a major penalty proceeding? Yes – Ingredients of Rule-15 should be complied with.

FAQ 6. Can a Government servant superannuate during the period of suspension? Yes – Letter No.16552/Gen, Dt.04.08.1994. 7. What will be the fate of the disciplinary proceeding initiated against a Government servant while in service after his retirement? Proceedings shall continue. Ref: Rule 7 (2) (a) of the OCS (Pension) Rules, 1992 8. Can any disciplinary proceeding initiated against a Government servant after his retirement? Yes 9. Is it necessary to suspend a Government servant for any irregularity committed by him? No suspension on routine manner – (DO No.24042, Dt.13.09.1991 – Only when there is prima-facie evidence of gross misconduct or serious dereliction in duty especially in financial matter with reasonable presumption that the proceeding with end in award of a major penalty/Detention in custody for 48 hours on criminal charge/order of dismissal/compulsory retirement/removal is set aside and remitted back 10. Is it necessary to cal for explanation of the Government servant before placing him under suspension? No – OM No.35691/Gen, Dt.03.12.1999

FAQ 11. Can any major penalty be imposed without conducting enquiry u/r 15? Yes – Special provision u/r 18 r/w Article 311(2)(b) of the Constitution/ L No.41121/Gen, Dt.30.11.1992 12. What is a de-novo enquiry? Rule 15 do not provide for fresh enquiry/re-enquiry on selfsame charges. In case of defects in enquiry, this can be remitted to the same enquiring officer for rectification of material irregularity. Exception – if the enquiring officer is dead, retired or not available, another enquiring officer can be appointed. Letter No.5501/Gen, Dt.15.03.1994. 13. Is it mandatory to initiate disciplinary proceeding against a Government servant facing criminal charges? Yes – In all cases where recovery of financial loss to the Government is contemplated. Memo No.14596/Gen, Dt.03.05.2001 and Chief Secretary Circular No.19993/Gen, Dt.06.10.2009. 14. Who will sign order appointing an inquiring officer where Government is the disciplinary authority? Secretary of the Department.- As it is a statutory power. General Administration Department Letter no 18470 dated 26.08.1995. 15. Can a delinquent employ engage a layer during inquiry? Yes- In case the marshalling officer/Presenting officer is a legal practitioner. Rule -15 (5) of the Orissa Civil Services (CC & A ) Rules, 1962.

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