HARMONY AN E-MAGAZINE ON CSIR/GOI SERVICE & RELATED ISSUES
Founder-Editor Ch. Srinivasa Rao Formerly COA, NGRI, Hyderabad Vol. XVIII
October 2011
No. 201
Compiling, Editing & Publishing
Ch. Srinivasa Srinivasa Rao, Formerly COA, NGRI, Hyderabad Counselling
B.J. Acharyulu, Head, Finance & Accounts, CDFD, Hyderabad Secretarial assistance
D. Shanmuga Sundar, Jr. Steno., NGRI, Hyderabad ---------------------------------------------------------------------------------------------------------------GoI Orders reproduced in "HARMONY" which are yet get the CSIR endorsement may be applicable to Council employees to a larger extent unless otherwise objected. The opinions expressed or inferences drawn in the material published in “HARMONY” do not necessarily reflect the views of Editor nor CSIR/Swamy Publishers shall take any responsibility whatsoever for any inaccuracies or claims. Material published in “HARMONY” can be used for academic purpose with due acknowledgement. Articles on Service issues, Management, Behavioural attitude and related issues are welcome through E-mail or other means. “HARMONY” is transmitted through E-mail. Send your E-mail i.d. to “harmony_csir@yahoo.co.in” Residence: 040-27150736 -Mobile: 91-9490462583
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CSIR/GOI ORDERS EXTENSION OF THE TENURE OF SPORTS PROMOTION BOARD The DG, CSIR has been pleased to extend the tenure of the Members of the following CSIR Sports Promotion Board up to the end of the 31-3-2012 on the existing terms and conditions: Dr. P.G. Rao, Director. NEIST, Jorhat Dr. D.S. Bedi, Sci. G & Head, USD, CSIR HQs., Dr. M. Neelamegam, Scientist F, SERC, Chennai Dr. R.N. Basu, Scientist F, CGCRI, Kolkata Dr. P.K. Singh, Scientist, CIMFR. Dhanhad Dr. R. Madhan, Scientist C, NIO, Goa Sh. Parag M. Solanki, Sci. C, CSMCRI, Bhavnagar Sh. I.P. Singh. Scientist C, CSIR Cx., New Delhi Sh. Ravi Saini, Scientist B, CEERI, Pilani
.. .. .. .. .. .. .. .. ..
President Secretary Member Member Member Member Member Member Member
Further, the Competent Authority has been pleased to nominate Ms. Sushila Khilnani, Scientist G, HRDG. CSIR HQs. as Member (SPB) vice Dr. Nandini Nagarajan. Scientist, NGRI who retired from Council Service and Sh. SP Singh, F&AO, CSIR HQs. as Treasurer (SPB) vice Sh. R.L. Sharma, Sr.DFA who is presently on deputation to other department. [CSIR O.M.No.6-9(58)/99-F.Ill (SPB) dt. 24-8-2011]
SELECTION TO POSTS UNDER THE NEW CSIR SCIENTISTS RECRUITMENT RULES It has been observed that in many cases, prior to the issue of New Rules the recruitment process takes a long time for one reason or other. Such delay in finalizing the recruitment and subsequent issue of appointment letters increases the possibility of losing young and bright candidates. As such, the DG, CSIR has desired that the following time-frame may be adopted by the CSIR Labs./Instts. to ensure completion of recruitment process in a reasonable time: i)
Draft Advertisement, complete in all respects, be forwarded to RAB at least 15 days in advance from the date of publication for vetting
ii)
Thirty days time be given from the date of notification of Advertisement to the prospective candidates for submitting their candidature.
3 iii)
During the next 30 days, shortlisting be completed and call letters for interview be issued
iv)
By the end of 30 days from the date of notification, interviews for selection be completed; and By the end of 4th month, Offers of Appointment be issued.
v)
Further, it is advised that while issuing advertisements for the positions of Scientists in CSIR, it may invariably be mentioned in the advertisement in terms of Rule 6.1.2 (ii), as notified on 1-6-2011, that the Selection Committee depending upon the performance of the candidate may choose to place the candidate in any of the Grade Pay within Pay Band-3 or 4 as the case may be, subject to meeting the minimum eligibility criterion specified. In order to give equal opportunities to future young Scientists, new appointments in a year may be restricted to 5-10% of sanctioned strength of Scientists. [CSIR Lr.No.1-5(1)174/2009-RAB dt. 29-8-2011]
TRANSPARENCY OFFICER, CSIR HQS. Consequent upon transfer of Shri R.P. Sharma, Sr. Dy. Secretary to NISTADS, the competent authority has approved that Shri R.K. Sharma, Sr. Dy. Secretary (Central Office) will act as Transparency Officer for CSIR HQs. [CSIR O.M. No.6-13(3)/2011-E.III dt. 1-9-2011]
SANCTION FOR IN-HOUSE PROJECTS The DG, CSIR, in consultation with the Financial Adviser, CSIR, has been pleased to approve that Directors of Labs./Instts. may sanction independent In-house R&D Projects costing up to Rs.5.00 crores in each case out of Plan Funds allocated under the Budget Head, P-50: Apparatus & Equipment and P-07: Chemicals & Consumables.The limit of sanction as above will also apply to projects sanctioned partly or fully against Lab. Reserve Fund. The details of projects so sanctioned by the Labs./Instts. required to be sent to PPD and Budget Section of CSIR HQs. for records and necessary action. [CSIR Lr.No.30-2(65)/2011-Finance dt. 2-9-2011]
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AADHAR NUMBER AS PROOF OF IDENTITY/ADDRESS Allocation of the Unique Identification Numbers (Aadhar numbers) is a Govt. of India initiative for providing identity to all residents in India The Unique Identification Authority of India (UIDAI) is entrusted with the responsibility of issuing Unique Identification Numbers and, among others, to define usage and applicability of the Aadhar numbers for delivery of various services. UIDAI has commenced issue of Aadhaar numbers. Aadhaar can be treated as a valid Proof of Identity (PoI) and Proof of Address (PoA). Following interaction meeting held with UIDAI and in pursuance of the decisions taken in the meeting of the Committee of Secretaries held on 21 .12.2010, Ministries/Departments have initiated action to integrate Aadhaar numbers with Central Govt. Schemes/Programmes. The Department of Telecommunications and the Ministry of Finance have already issued necessary instructions that Aadhaar number would serve as both Pol and PoA for obtaining mobile telephone connections and for opening of Bank accounts which would facilitate efficient and effective beneficiary identification. The Director-General & Mission Director, UIDAI has informed that integration of various Central: Govt. Schemes/Programmes with Aadhar to serve as a platform for service delivery may take some time. However, in the interregnum, Central, Ministries/ Departments may consider examining all the Schemes/Programmes being operated by them and, in accordance with the results of such examination, issue instructions for recognizing Aadhaar number as a Pol and PoA for various residentcentric schemes under intimation to UIDAI and this Secretariat. The Director-General/Mission Director, UIDAI may be contacted in case any clarifications are required. [CSIR Lr.No.5-1(37)/2007-PD dt. D.O.No.281/1/5/2011-TS dt. 25-4-2011]
9-9-2011;
GOI
Cabinet
Secretary’s
DETAILS OF ACCOUNTS OF TRANSFEREES UNDER NEW PENSION SCHEME CSIR vide its letter dated 31-3-2011 followed by a reminder dated 2-6-2011 requested for the details of Accounts of New Pension Scheme which are being maintained by all the Labs./Instts. However, many of the Labs./Instts. have not mentioned the details of Accounts of those employees who had joined from other Labs./Instts. within the CSIR. Hence, details of all such employees have to be furnished immediately to CSIR in the prescribed pro forma latest by 9-9-2011. [CSIR Lr.No.34-2(5)/CSIR/NPS/2011 dt. 12-9-2011]
5 GRANT OF FAMILY PENSION TO CHILDLESS WIDOW OF A DECEASED CG EMPLOYEE AFTER HER RE-MARRIAGE As per the provisions of para 8.6 of DOP&PW O.M.No.38/37/08-P&PW(A) dated 2-9-2008, the childless widow of a deceased Govt. employee shall continue to be paid family pension even after her remarriage, subject to the condition that the family pension shall cease once her independent income from all other sources becomes equal to or higher than the minimum prescribed for family pension in the Central Govt. It is hereby clarified that the childless widow of a deceased CG employee who expired before 1-1-2006, shall be eligible for family pension in the light of 6th CPC's recommendations irrespective of the fact that the remarriage of the widow had taken place prior to/on or after 1-1-2006. The financial benefits in such case, however, will accrue from 1.1.2006, subject to the fulfillment of certain conditions, including the income criterion. [CSIR Lr. No. 34-1(11)/CSIR/Pension/2011-12 dt. 14-9-2011; GOI MOPPG&P DOP&PW O.M. No.1/412011-P&PW(E) dt. 1-4-2011
REVISION OF PENSION/FAMILY PENSION IN R/O PENSIONERS IN RECEIPT OF COMPULSORY RETIREMENT PENSION AND COMPASSIONATE ALLOWANCE In accordance with para 4.2 of this GOI MOPP&G DOP&PW O.M. No.38/37/08-P&PW(A) dated 1-9-2008, the revised pension of pre-2006 pensioners shall, in no case, be lower than fifty percent of the minimum of the pay in the PB plus GP corresponding to the pre-revised pay scale from which the pensioner had retired. In the case of HAG+ and above scales, this will be fifty percent of the minimum of the revised pay scale. It was clarified in O.M. No.45/86/97-P&PW(A) dated 25-3-2004 that the provisions of O.M. dated 17-12-1998 relating to stepping up of pension to 50% of the minimum of the revised scale of pay as on 1-1-1996 of the post held by the pensioner at the time of retirement shall not be applicable in case of compulsory retirement pension and compassionate allowance. As clarified vide O.M. dated 3-10-2008, it has now been decided that the benefit of para 4.2 of O.M. dated 1-9-2008 will not be applicable in the case of revision of pension/family pension in respect of the pensioners who were in receipt of compulsory retirement pension and compassionate allowance under Rules 40 and 41 of CCS (Pension ) Rules, 1972. [CSIR Lr. No. 34-1(11)/CSIR/Pension/2011-12 dt. 14-9-2011; GOI MOPPG&P DOP&PW O.M. No.38/37/08-P&PW(A) dt. 22-7-2011; Swamysnews, Sept. 2011, 33-34]
6 INCLUSION OF NAMES OF MEMBERS OF FAMILY IN THE PPO The undersigned is directed to refer to DOP&PW O.M. No.1/6/2008-P&PW(E) dated 22-6-2010 and No.1/21/91-P&PW(E), dated 20-1-1993, regarding intimation of names of eligible family members by the pensioner or the spouse to the Head of Office for inclusion in the Pension Payment Order (PPO). It has been clarified in the GOI MOPPG&P DOPW O.M No.1/6/2008P&PW(E) dated 22-6-2010 that in cases where the pensioner or his/her spouse expired, the widowed or divorced or unmarried daughter/parents/dependent disabled children/disabled siblings can themselves intimate such details to the pension sanctioning authority, who can process such cases, if sufficient proof of entitlement is produced by the claimant and all other conditions for grant of family pension are fulfilled. Vide O.M. No. 38/37/08-P&PW(A) dated 21-5-2009, instructions regarding admissibility of documents as proof of date of birth of very old family pensioner who neither have a birth certificate nor any other corroborating document and whose date of birth is not available in the PPOs as well as in the Office records of CPAO/PAO have been explained. It is hereby reiterated that documents indicated in para 5 of O.M., dated 21-52009 may be relied upon by the Heads of Office for admitting claims of the family pensioners. In addition to these, the Aadhaar number issued by Unique Identification Authority of India (UIDAI) may also be accepted by the Heads of Office/Pension Disbursing Authorities as valid proof of identity. It is also emphasized that the date of birth of the applicant may also be ascertained at the time of sanctioning family pension as it may be required for deciding the quantum of additional family pension when the family pensioner attains the age of 80 years or above. In case the applicant is unable to submit any of the documents indicated above but claims family pension based on some other documentary evidence, such cases may be submitted to the administrative Ministry/Department for a decision. Requests have also been received for inclusion of the name of dependent disabled child/children in the PPO during the life-time of the pensioner. It is hereby clarified that neither dependence nor disability are bound to be permanent in nature. Therefore, the name(s) of such child/children may be included in the details of family by the Head of Office on receiving a request from the pensioner or his/her spouse. However, family pension would be sanctioned only when their turn comes to receive the family pension on the demise of the pensioner/family pensioner, after examining the claim(s) of such disabled children for family pension, subject to the fulfilment of conditions stipulated in the relevant provisions of CCS (Pension) Rules, 1972. [CSIR Lr. No. 34-1(11)/CSIR/Pension/2011-12 dt. 14-9-2011; GOI MOPPG&P DOP&PW O.M. No.1/19/11-P&PW(E) dt. 3-8-2011; Swamysnews, Sept. 2011, 34-35]
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GRANT OF FAMILY PENSION TO DEPENDENT PARENTS OF A DECEASED GOVT. EMPLOYEE Attention to GOI MOPPG&P DOP&PW O.M.No.45/86/97-P&PW(A)-Pt.1 dated 27-10-1997, whereby the definition of family for the purpose of grant of family pension was extended to include, inter alia, "parents who were wholly dependent on the Govt. servant when he/she was alive provided the deceased employee had left behind neither a widow nor a child". It has been observed that the above point is being interpreted to mean that parents are eligible for family pension when the deceased employee is survived by them only. In case the deceased employee is survived by a widow and/or one or more children, the parents are not considered eligible to receive family pension subsequent to such widow and/or children becoming ineligible to receive family pension or ceasing to survive. It is clarified that in case the deceased GS is not survived by a widow/widower or a child, the dependent parents become directly eligible to receive family pension. In cases where a deceased GS is survived by a widow/widower or a child, and the position changes subsequently because of death or re-marriage of the spouse and/or death or ineligibility of child/children, including a disabled child, the dependent parents become eligible for family pension. However, in terms of O.M.No.38/37/08-P&PW(A) dated 2-9-1908, a childless widow, subject to dependency criteria, is entitled to the family pension even after her re-marriage. In such an event, the parents of the deceased employee become entitled to the family pension only after the childless widow dies or when her independent income from all other sources becomes equal to or higher than that prescribed for dependency criterion under the Rules. [CSIR Lr. No. 34-1(11)/CSIR/Pension/2011-12 dt. 14-9-2011; GOI MOPPG&P DOP&PW O.M. No.1/2/07-P&PW(E) dt. 2-9-2011]
ECONOMY MEASURES AND RATIONALIZATION OF EXPENDITURE
dt.
The economy measures as outlined in GOI MOF O.M.No.7(1)/E.Co-ord./2001 11-7-2011 have been extended to Autonomous Bodies funded by GoI also
[GOI MOF O.M.No.7(1)/E.Co-ord./2001 dt. 2-8-2011; Swamysnews, Sept. 2011, 4]
EXTENSION OF RISK ALLOWANCE It has been decided that Risk Allowance may be continued for a further period of six months up to 31-12-2011 or till such time Risk Insurance Scheme is implemented whichever is earlier.
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[GOI DOPT O.M.No.21012/01/2008-Estt.(Allowance) dt. 19-7-2011; Swamysnews, Sept. 2011, 32-33]
CONSIDERATION OF PERSONS WITH DISABILITIES FOR PROMOTION AGAINST UNRESERVED VACANCIES Attention is invited to Para 6 of DOPT O.M.No.36035/3/2004-Estt.(Res.) dated 29-12-2005 which provides that a person with disability cannot be denied the right to compete for appointment against an unreserved vacancy in a post identified suitable for persons with disability of the relevant category. It is hereby clarified that if promotions are made to Gr. A or Gr. B post, which is identified suitable for persons with disability of a specific category, the persons with disability of relevant category in feeder grade, if any, shall be considered for promotion to the post by applying the same criterion as applicable to other persons. [GOI DOPT O.M.No.36035/4/2010-Estt.(Res.) dt. 1-8-2011; Swamysnews, Sept. 2011, 37]
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CASE LAWS Mere reproduction of Case Laws in the columns of “HARMONY” cannot be construed to be applicable to CSIR/GOI employees. The inferences drawn and the decisions made by the Hon’ble Courts may largely vary in each individual case. The decisions are expected to provide the aggrieved, some idea about the trends of Hon’ble Courts.
WITHDRAWAL OF NON-PRECTISING ALLOWANCE AFTER RETIREMENT Drawal of Non-Practising Allowance (NPS) by Veterinary Doctors can be effected only if they had registered with the Veterinary Council of India. The question for consideration is whether the Applicant is eligible to get NPA from late 1980 when he had not registered himself with veterinary Council and whether the recovery of NPA paid to him can be recovered after his retirement? The Respondents asked the Applicant to produce the Registration Certificate issued by Veterinary Council by which time he had already retired. Even though he got him registered after retirement with the Veterinary Council, he was asked to return the NPA drawn by him from the start of payment of NPA. Hence, it was held: “It is now well settled that Courts can use their judicial discretion to interfere in cases of recovery when the excess payment is not on account of misrepresentation, fraud or collusion.”
The recovery of NPA paid to him is not justified after retirement. The Applicant is singled out in the recovery of NPA when others who were paid NPA without following rules are left out. Even those with B.V.Sc. and A.H. degree holders were not asked to refund the NPA. Those who were not registered with Veterinary Council were also paid NPA. Hence, the recovery of NPA paid to the Applicant based on the O.M. dated 30-8-2008 is not permissible. In view of the above, recovery of NPA from the Applicant is legally impermissible and hence the Impugned Order for recovery is quashed. [Swamysnews, Sept. 2011, 66-68]
10 RESERVATION UNDER PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES, PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995 When the Disabilities Act came into force in the year 1996, it was the duty of the concerned authority to identify roster point immediately and thereafter proceed to fill such vacancies from each of such category, which course of action if not undertaken till date is not a justifiable reason by the Respondents. Here is a case in which the department had initiated selection process without identifying posts reserved for persons suffering from hearing impaired, blind, locomotor disability, cerebral palsy, identified for each disability. In the result, it was held that the Respondents failed to adhere to the Disability Act, 1995, a statutory provision, thereby disregarded their legal duties. Hence, the Respondents are required to identify post and roster point for each disability in the roster to be maintained for the zone for the concerned posts before undertaking recruitment by any of the mode of recruitment provided under statutory recruitment rules and thereafter regulate the selection concerned. The Respondents are directed to take action in three months’ time from the date of receipt of order [Swamysnews, Sept. 2011, 77-78]
POSTING OF OFFICERS TO A PLACE OF THEIR CHOICE ON COMPLETION OF TENURE OF POSTING IN N.E. REGION Posting of the Applicant at his choice station despite the fact that by serving in North-East Region, the Applicant gained a right of consideration for posting to station of his choice. As such, the present case is squarely covered by the decision of the Tribunal rendered in an earlier case. The Tribunal held that by serving in N.E. Region, the Applicant gained right of consideration for posting of his choice. Hence, the Respondents are directed to accommodate the Applicant at the place of his choice within four months from the date of receipt of Order. [Swamysnews, Sept. 2011, 79]
REDUCING THE PAY AND STATUS OF AN EMPLOYEE PERMANENTLY AS A PUNISHMENT FOR ABSENTEESM The Applicant though submitted his leave application periodically did not care to ensure that it reached the right quarters and leave sought for was granted and thus absented himself unauthorisedly. There was no misdemeanour or perpetration of falsity or any other serious misconduct on the part of the Applicant. When he was left with 10 years of service, reducing him to a lower grade permanently was shockingly disproportionate to the misconduct which was technical in nature.
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In view of the above, the impugned punishment orders were set aside and the matter is referred back to Disciplinary Authority with a direction to impose suitable lower penalty other than penalty provided under the rules. The Applicant is entitled to all consequential benefits. The order should be complied in three months’ time. [Swamysnews, Sept. 2011, 80-81]
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NEWS & VIEWS The September issue of “HARMONY” has been very informative, as of course, all other issues. Thank you very much. - Dr KGK Warrier Scientist 'G' (Chief Scientist), CSIR-NIIST, Trivandrum
“HARMONY” fulfills an acutely felt need. Scientists, the relatively younger ones specially, often feel clueless when a need for guidance on administrative issues arises. It is not only the CSIR/Govt. of India that “HARMONY” brings within the reach of people; extremely useful articles, like the one on “Vigilance Clearance” in the present issue, by eminently qualified persons add great value to the magazine. My sincere thanks and warm regards to you and your team. - Dr V B Lal) Retd Scienrtist, CSIR HQ
At the time of Civil Society's crusade against corruption, your article "VIGILANCE CLEARANCE – AN ENIGMA OR A SIMPLICITOR ?" is very timely reminder to all the concerned. Kudos to your untiring efforts to bring out "HARMONY" every month with useful articles. As a retired employee of IICT I know how much pains you used to take for bringing out "HARMONY" even sacrificing your personal life. I think only a few people like you can do such things. - Muthender Velishala S.O., (Retd.), IICT, Hyderabad Thanking you for keeping us update on service matters and also on CSIR affairs. - R.C.Yadav Scientist, IICB, Kolkata
UGC IDENTIFIES 21 FAKE VARSITIES/INSTITUTIONS The University Grants Commission has identified 21 fake universities and institutions across the country. In a written reply in the Lok Sabha, Minister of State for Human Resource Development D. Purandeswari informed the House that out of which 8 are in Uttar Pradesh, 6 are in Delhi and 1 each in Bihar, Karnataka, Kerala, Madhya Pradesh, Maharashtra, Tamil Nadu and West Bengal. Similarly, the AICTE has identified 348 institutions running technical and management courses/programmes in violation of the AICTE Regulations. Out of these total number of unapproved institutions, 75 each are in Delhi and Maharashtra, 52 in Andhra Pradesh, 34 in West Bengal, 30 in Uttar Pradesh, 26 in Karnataka, 17 in
13 Haryana, 14 in Tamil Nadu, 9 in Chandigarh, 4 in Gujarat, 2 each in Bihar, Himachal Pradesh, Punjab, Rajasthan and Goa and 1 each in Uttarakhand and Kerala. The UGC has taken legal action in various courts against 6 of these fake Universities. The State Govts. have also initiated action against certain fake Universities. Show-cause notices have also been served by the UGC to some of the fake Universities/Institutions and by the AICTE to the unapproved Institutions for closure of their programme. [iGovernment Bureau, Vol.4 Issue 115]
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THE PRINCIPLES OF NATURAL JUSTICE Ch. Srinivasa Rao Formerly COA, CSIR-NGRI Hyderabad Browsing through certain case laws, study material provided in various training courses, review of CCS (CCA) Rules, 1965, the Wikipedia, and of course, application of mind, manifested into the present article. Kautilya (c. 370-283 BC) codified the crimes committed by the citizens in the Society, and against the State, and suggested the corresponding punishments through his treatise entitled “Arthashastra”. While doing so, he considered the rights of such criminals and paid attention to the Natural Justice as well. His contribution to the present subject can never be over-emphasized.
Introduction The Principles of Natural Justice, which may be called as the “Principles”, are in-built and implied in every action in any civilization. They effectively encompass our lives, actions, environment around us, the society we move in. Interestingly, the term “Natural Justice” has not been defined in any Code or Statute, including the Constitution of India but the concept is fairly crystallized through the various judicial pronouncements. Therefore, the following Principles may be equated with un-codified Rules of Justice, and are analogous to the Principles of Inquiry as recognized in the Codes of Law: i)
No one shall be a judge in his own cause;
ii)
No one shall be condemned unheard; and
iii)
Justice should not only be done but it should appear that it is being manifestly done.
Natural Justice Principles are rules laid down for affording minimum protection of the rights of an individual against an arbitrary procedure by a judicial quasi-judicial authority while making an order, which affects his civil rights. Principles are analogous to Principle of Equity. The Hon’ble Supreme Court held that these rules operate in areas not covered by any law. In other words, they do not “supplant” the law but “supplement” the law. Whether a particular Principle is applicable to a particular situation or not will depend on the facts time and circumstances of each case. Whenever a complaint is
15 made before the court that the Principles are contravened, the court has to decide whether the observance of the rule was necessary for imparted justice.
Purpose Application of the Principles serves the following purposes: To avoid miscarriage of justice To ensure justice and fair play Operates in areas where: Codified law does not exist; or When it is silent about these Principles Applicable even to administrative actions Cannot over-ride Law Can be exempt by specific provisions of law, or necessary implications Constitutional Provisions Though the Principles have not been defined anywhere in the Statute, Article 311 (2) of the Constitution of India gives a broad idea about their meaning which reads as follows:
“No person who is member of a Civil Service or holds a Civil Post under the Union or State shall be dismissed or removed or reduced in rank except after an Inquiry in which he has been informed of the charges against him and given reasonable opportunities of being heard in respect of those charges.” In view of the interpretation of the term “Civil Post” by the High Courts and Supreme Court, this protection is not available to those who were ‘not’ covered under the term “Civil Post”. The protection extended to a civil servant under Clause (2) of Article 311 of the Constitution does not extend in the following instances: i)
Where the dismissal or removal or reduction in rank is on the ground of conduct which has laid to his conviction on a criminal charge;
ii)
Where the competent authority is satisfied that for some reason to be recorded in writing it is not reasonable and practicable to hold such Inquiry; and
iii)
Where the President or the Governor, as the case may be, is satisfied that it is not expedient to hold an inquiry in the interest of security of the Sate. The protection as guaranteed by Article 311 extends to all persons who hold a civil post under the Union or the State, including Members of All India/State Service.
But even where Article 311 (2) is not attracted in case of above categories of employees, the rules of Natural Justice must be complied with before terminating the service of an employee of a Statutory Authority, including the charge and a
16 reasonable opportunity to the employee to cross-examine the witnesses and to lead defence in support of his version. The rules framed by the respective employer in respect of Conduct & Discipline of the employee must be complied with before the employee is punished with dismissal, removal or reduction in rank. Failure of the observance of the laid down rules, in this respect, will tantamount to violation of Principles. It is thus well settled that in Departmental Inquiries against public servants, the authorities must not only conform to the constitutional requirement and the rules/regulations laid down for that purpose but also the Rules of Natural Justice. Various High Courts including the Apex Court have given their decisions in respect of the application of the Principles to be applied in a number of situations on case to case basis. While Article 309 of the Constitution regulates the recruitment and conditions of service of the persons appointed to the public service, Article 310 provides that, subject to the other provisions of the Constitution, all civil posts under the Union are held at the pleasure of the President. Similarly, all the civil posts under the State are held at the pleasure of the Governor. However, Article 311 does not alter or affect the principle that a Govt. servant holds Office at the pleasure of the President or the Governor, as the case may be. It only subjects the exercise of that pleasure to the following two conditions: i)
that such an employee shall not be dismissed or removed or reduced to lower rank by any authority subordinate to that by which he was appointed; and
ii)
that such an employee shall not be dismissed or removed or reduced in rank without an Inquiry into the charges against him in which he has been informed of the charges against him and given a ‘reasonable opportunity’ of being heard in respect of the charges. The Supreme Court observed that the Article 311 includes:
i)
an opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him and the allegations on which such charges are based;
ii)
an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence; and finally; and
iii)
an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which is over and after applying his mind to the gravity or otherwise of the charges proved against the Govt. servant tentatively proposes to inflict one of the three punishments and communicates the same to the Govt. servant.
17 However, the Amendment which took place during 1976 changed the position now. It is no longer necessary to give the Charged Officer (C.O.) an opportunity of making a representation on the penalty proposed to be imposed upon him. This raised the issue that the C.O. is being punished on the basis of a document considered in his absence, and therefore, such a procedure is violative of the Principles. Through the process of judicial interpretation, the following two basic rules of Principles have been evolved: 1.
No one shall be a judge in his own cause
No person can be a judge in his own cause and no witness can certify that his own testimony is true. Anyone who has a personal stake in an inquiry must keep himself from the conduct of the inquiry. The judge can under no circumstances combine in himself the roles of judge and jury, of judge and witness or judge and prosecutor. The above Principles apply to a person who is entrusted with the conduct of inquiry -- complainant, friend, relative, witness, officer who is biased, or has personal knowledge should not be appointed as Inquiry Authority I.A.). The Disciplinary Authority (D.A.) who conducts the inquiry where one is appointed, acts like a Judge. He shall be independent, impartial, fair and objective. A person with a fore-closed mind who has prejudged the issue or predetermined to punish the C.O., should not act as D.A. Similarly, a person who is a complainant or witness or prosecutor cannot act as a Judge. While nothing can prevent the D.A. from holding the Inquiry itself, if the C.O. raises any question of bias on sound reasons, he may not hold the Inquiry. Thus, in a case, where from all circumstances it was clear that the petitioner reasonably had an apprehension that the D.A. holding the Inquiry was biased against him and had made up his mind to punish him, this bias would vitiate the entire Inquiry proceedings. The test of likelihood of bias is based on the reasonable apprehension of a reasonable man fully acquainted with the facts. Surmises and conjectures are not sufficient. The D.A. must be totally free from any bias. Bias can be of many types: (a) a pecuniary interest, (b) a personal interest, (c) pre-conceived notion bias, (d) departmental bias, and (e) subject-matter bias. It is relevant not only in the D.A. but also in the I.A. even where the I.A. is a different person from the D.A.. Nevertheless, mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias we have to take into consideration human probabilities and ordinary course of human conduct.
18 2.
No one shall be condemned unheard
The concept of reasonable opportunity extends throughout the disciplinary proceeding from the stage of framing of charges till the final order of penalty. This principle could be broadly classified as under.
party to an action is prima facie entitled to be heard in his presence;
he is entitled to dispute his opponent’s case, cross examine his opponents witnesses and entitled to call his own witnesses and give his own evidence before Court; and
he is entitled to know the reasons for the decision rendered by a Court/Tribunal.
By a process of judicial interpretation, two rules have been evolved has representing the Principles in judicial process, including therein quasi-judicial and administrative process. Their being: • •
no man shall be a judge in his own cause hear the other side -- Audi Alteram Partem
From the above two rules a corollary has been deduced, namely, that he who shall decide anything without the other side having been heard, although he may have said what is right, will not have done what is right. In other words, justice should not only be done but should manifestly be seem to be done. While considering the Audi Alteram Partem rule it was observed that: a person against whom an order to his prejudice may be passed should be informed of the charges against him; Such person should be given an opportunity of submitting his explanation which also include the right to know the oral and documentary evidence which are to be used against him; Witnesses who are to give evidence against him be examined in his person with right to cross examine them; and To lead his own evidence, both oral and documentary, in his defence. Preliminary Inquiry As soon as decision has been taken by the competent authority to start departmental proceedings, the authority will draw up charges on the basis of material gathered during the preliminary investigation.
19 Inquiry Report submitted by Vigilance/Police/other agencies, Article of Charges, Statement of imputation, etc. to be prepared in the prescribed format. The Memorandum should be signed by the D.A. or authorized legally delegated authority. The Departmental Inquiry is conducted to maintain discipline in the service and efficiency of the public servant. The Principles and equal opportunity are strictly followed. The C.O. should be given fair and reasonable opportunity to defend himself. The person holding Inquiry should be without bias and vindictiveness. The conclusion must ‘not’ rest on the evidence adduced during the Inquiry on matters outside the records or the evidence taken in the absence of the C.O.. To complete the Inquiry within limited time of six months by judicious use of his discretion to avoid delays but not at the cost of Natural Justice. Departmental Inquiry In recent times, the importance of the Principles assumed greater significance due to the fact that the judicial functions or quasi-judicial functions for deciding cases involving disciplinary action against public servants charged with misconduct, misbehaviour, etc. are entrusted to Administrative Tribunals, Departmental Heads of Central/State Govt., etc. by which such cases are taken cognizance of. The aim of the Principles is to secure justice or to put it negatively to prevent miscarriage of Justice. The concept of Natural Justice has undergone a great deal of change in recent years. In the past, only two rules were recognized -i)
firstly nobody should be a judge of his own cause and secondly nobody should be condemned unheard, i.e. without giving him the reasonable opportunity to defend himself.
ii)
secondly, ‘Hear the other side’ which means: a)
that a judge must hear both sides and must not hear one side in the absence of the other. It means that the C.O. has a notice of the charges, he is called upon to explain and the allegations on which those are based;
b)
that he has access to all relevant evidence that he wishes to adduce;
c)
that he is given the opportunity to cross-examine the prosecution witnesses and to produce witnesses in defence and offer himself for examination;
d)
that no evidence should be recorded behind his back but all of it should be taken in his presence; and
e)
that no materials should be relied on against him without his being given an opportunity of explaining them.
20
In course of time, the process of applying the Principles, many more subsidiary rules got added up. On receipt of the Inquiry Report, the D.A., before imposing any penalty, has to furnish a copy of the Inquiry Report to the C.O. and give him an opportunity to make a representation and take the representation, if any, into consideration before taking final action. It is not necessary to give any opportunity to make representation on the penalty proposed to be imposed. In one of the cases, the Supreme Court interpreted the requirements of Natural Justice in the following terms: “Stating it broadly and without intending it to be exhaustive, it may be observed that rules of Natural Justice require that a party should have the opportunity of adducing all relevant evidence on which he replies, that the evidence of opponent should be taken in his presence and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no material should be relied on against him without his being given an opportunity for explaining them.â€? Legal Assistance The Supreme Court held that in the absence of rules, the assistance of an advocate can be refused, if there is no legal complexity in the case. Wherein a disciplinary Inquiry by a domestic tribunal, the employer appointed two Presentingcum-Prosecuting Officers to present the case on behalf of the management, who were legally trained, denial of a request of the C.O., seeking permission to appear and defend himself by a legal practitioner would vitiate the Inquiry on the ground that the C.O. had not been afforded reasonable opportunity to defend himself, thereby violating one of the essential Principles. Judicial vis-Ă -vis Quasi-Judicial Proceedings Judicial proceedings are proceedings before a Court of Law whereby the criminal charges and the criminal liabilities of an accused are legally determined according to the procedures established by Law and include all proceedings in the course of which evidence may be taken on Oath. Confession before a Police Officer is not admissible as evidence in criminal cases. Similarly, self-incriminating evidence cannot be considered. Courts interfere only in cases of violation of rules of procedures, Natural Justice, arbitrariness, absence of evidence, etc. but not on the merits of evidence. In contrast, the proceedings held by Competent Authority/Inquiring Authority (other than a Court) whereby the charges leveled against and the liabilities of a civil servant are determined by holding a Departmental Inquiry after providing reasonable opportunity and in accordance with the Principles. Confession before a Senior Officer
21 may be admissible. And at the same time self-incriminating evidence can also be considered in departmental proceedings. The degree of proof is by preponderance of probability and Indian Evidence Act is not applicable as far as proof of documents is concerned. Even the hearsay evidence, if it has logically probative value, is admissible. Discipline Authority is the sole judge of the facts such as adequacy and reliability of evidence cannot be questioned before Court. Departmental proceedings can be conducted even on holidays. The departmental proceedings can be conducted in camera except those under P.S. (Inquiry) Act, 1880. There is no need to examine all the witnesses. Witnesses who were not cited in charge sheet can also be examined at the request of the Presenting Officer or at the instructions of I.A.. Tape-recorded evidence is admissible. Evidence of accomplice can also be relied upon. When a charge different from charge framed established, the I.A. can give findings of the charge, provided the C.O. admits on allowing him reasonable opportunity. In Departmental Inquiry initiated for major penalty, minor penalty can be imposed. Past bad record cannot be taken into consideration for arriving at findings on the charge but can be considered for imposing an enhanced penalty. In a quasi-judicial matter, the Supreme Court concluded that if the C.O. is being deprived of knowledge of the material against him though the same is made available to the punishing in the matter of reaching his conclusion, rules of Natural Justice are considered to have been affected. It was held that supply of a copy of the Inquiry Report would be within the rules of Natural Justice and the C.O., therefore, would be entitled to supply thereof. Thus even though the issuance of show cause notice against the proposed penalty to the C.O. is not required, still he would be entitled to have a copy of the Inquiry Report and may make representation on the findings arrived at by the I.A., before the order of punishment is issued. Charge Sheet The framing of a charge is the first step in departmental Inquiry. The object of issuing a charge sheet is to give sufficient opportunity to the public servant concerned to know the nature of the misconduct alleged against him so that he may offer his explanation thereto and defend himself. The charge should not contain any expression of opinion as that would create an impression in the mind of the charged official that the D.A. is prejudiced against him. The charge sheet should be specific and it must set-out all the necessary particulars. It should not be vague. It should mention the substance of the accusation in a very clear manner. The time, date and place of the misconduct should be mentioned in the charge-sheet.
22 A charge may be amended during the course of the Inquiry of the D.A. so feels on the material before him. In such case, the C.O. should be given reasonable opportunity of meeting the amended charge by recalling the witnesses already examined by adducing additional evidence. An alteration or addition or amendment of a charge is a matter of procedure and as long as sufficient notice of such alteration, addition or amendment is given and sufficient opportunity is given to the C.O. to meet the same, there will not be any violation of the Principles. The Principles require that the C.O. should know before-hand who are the witnesses that are going to speak against him during the Inquiry and which are the documents that are going to be filed in support of the charges. The C.O. should be given facility to examine and study the documents sought to be put in evidence against him and if he desires to take notes or extracts, he should be allowed to do so. Copies may be furnished, where considered necessary, depending on the facts and circumstances of the case. Documents on which no reliance is placed during the inquiry, need not be disclosed. But documents which are not relied upon for the purpose of proving the charge but are essential for the purpose of his defence should be made available to the C.O.. The I.A. can disallow documents cited by the C.O. which are considered not relevant to the case. During the departmental inquiries, in order to see that the Principles are complied with, the following guidelines as laid down by the various High Courts and the Supreme Court are strictly adhered to: The Disciplinary Authority should: act honestly, impartially and in good faith and must give an opportunity to the C.O. to deny his guilt and establish his innocence which he can only do, if he is told about the material on which the charges are based; must frame definite and unambiguous charges; or the I.A. should inform the C.O. about the accusation against him in clear and specific terms as far as practicable; and Should also be considerate, on merits, if change of I.A. is requested by the C.O. The Inquiry Authority should: have no bias against the C.O. nor should have any interest in the subject matter of inquiry; should examine the witnesses in support of the charge in the presence of the C.O. and allow him to cross examine them; should place all the documents to be relied upon to prove the charge(s) at the outset, and give an opportunity to the C.O. to scrutinize such documents;
23 should afford adequate opportunity to the C.O. to state his defence and crossexamine the prosecution witnesses to disprove the charge as well as to produce oral and documentary evidence on which he relies in order to substantiate his defence; should follow the basic Rules of Evidence; should not collect material evidence either oral or documentary behind the C.O. and rely upon to prove the charge; should not be influenced by any extraneous consideration in arriving at the decision regarding the guilt or otherwise of the C.O.; must evaluate the evidence dispassionately and without any bias or prejudice; should play a balanced role, on case to case basis, coupled with the Principles, particularly in respect of: • • •
being considerate in case of request for adjournment as there might be certain occasions where the C.O. may on personal/official reasons seek adjournment of Inquiry, etc.; allowing the C.O. to critically examine the documents/witnesses, etc.; and encouraging the C.O. to have his choice of Defence Assistant on whom he may have full confidence; sometimes even from other than Head Qrs., as denial of his choice may lead to accusation of bias or other reasons which may, at times, even vitiate the proceedings.
Applicability of Natural Justice or Otherwise However, the Principles of Reasonable Opportunity will not apply to the following cases: a) where a person is dismissed or removed or reduced in rank on the ground of conduct which has led to his conviction on a criminal charge; or b)
where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reasons, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry; or
c)
where the President or the Governor, as the case may be, is satisfied that in the interest of such inquiry as is referred to in Clause (2) of Article 311 of the Constitution, the decision thereof of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
24 Departmental Inquiry vs. Investigating Agency When a Police investigation is going on, consequent upon institution of a criminal case against a public servant, the truth of the same should be ascertained only in an Inquiry or trial by the criminal court when a prima facie case is found by the investigation and a charge sheet is submitted. In most cases, it would be proper and reasonable for the D.A. to wait for the result of the police investigation and where the investigation is followed by Inquiry or trial, the result of such Inquiry or trial before deciding to take any disciplinary action against any of its employee. As far as the cases being investigated by the SPE/CBI is concerned, the CVC issued the instructions that once a case has been taken up by the CBI for Inquiry or investigation, the Departmental Inquiry including the Domestic Inquiry shall end. Even though this appears to be a reasonable course, which will ordinarily be followed by the D.A., there is no legal bar to the D.A. ordering a departmental Inquiry even in a case where a First Information Report u/s. 154 Cr.PC has been lodged. Departmental Inquiry vs. Prosecution by Court The object of departmental proceeding is to ascertain as to whether the employee is a fit person to be retained in service and the object of the Court trial is to see as to whether the ingredients of the offence have been made out warranting conviction. If the case is of grave nature or involves question of facts or law, which are not simple, it would be advisable for the employer to wait the decision of the trial court so that the defence of the employee in the criminal court may not be prejudiced. Though ordinarily a departmental action is not initiated in regard to sub judice matter, yet the Courts would not stay departmental proceedings merely because a criminal prosecution of the same person is launched in a Court of Law. Departmental Inquiry -- Effect of Acquittal In the event of acquittal of the C.O. in a criminal case whether the departmental Inquiry pending against him on the same set of facts would continue? It has been observed by the Supreme Court that such matter is to be decided by the department after considering the nature of finding given by the Criminal Court. Normally, where the accused is acquitted honorably and completely exonerated of the charges, it would not be expedient to continue a departmental Inquiry on the same charges or grounds of evidence, but the fact remains however, that merely because the accused is acquitted, the power of the concerned authority to continue the Departmental Inquiry is not taken away nor its discretion in any way fettered. If the findings are recorded against the C.O. placing reliance on a document which might not have been disclosed to him or the copy whereof may not have been supplied to him during the Inquiry, when demanded, that would contravene the
25 Principles rendering the Inquiry and the consequential order of punishment illegal and void. If copies of the relevant and material documents including the statement of witnesses recorded in the preliminary Inquiry or during investigation are not supplied to the C.O. facing the Inquiry and such documents are relied upon in holding the charges framed against the C.O., the Inquiry would be vitiated for the violation of the Principles . Cut in Pension on conviction When a full-fledged Inquiry under CCS (CCA) Rules, 1965 has been conducted and the person concerned has been given an opportunity to show cause in the proceedings, it is not necessary to give the pensioner concerned any further opportunity to show cause before imposing the cut in pension. However, in order to meet the Principles, it is a pre-requisite to issue a show cause notice on the basis of conviction by the Court to the pensioner before imposing any cut in his pension. Similarly, if the statement of witnesses recorded during the investigation of a criminal case or in the preliminary Inquiry is not supplied to the C.O., that would amount to denial of opportunity of effective cross examination. Speaking Order The principle that the order must be a Speaking Order is based on the premise that whether the judge has considered all the aspects of a matter before him can be ascertained only if the order which he makes is a Speaking Order. The DA should record reasons where he differs with the findings of the I.A.. The recommendation of the Public Service Commission or the Vigilance Commission, if they were involved, is not binding on the D.A.. The D.A. will have to apply his mind and arrive at his own decision, on findings and quantum of penalty. While making out a Speaking Order, the following aspects have to be borne in mind:
Context – Contentions – Consideration –
Explain the Background mention the rival contentions of the contesting parties evaluate the contentions vis-à-vis each other and in the light of rules position
The requirement of making a speaking order will minimize the possibility of arbitrary exercise of power as the necessary search for reasons will ensure reasonableness. Reasons are the links between the materials on which certain conclusions are based and the actual conclusions. They disclose how the mind is applied to the subject matter while arriving at a decision.
26
The importance of a Speaking Order can never be over-emphasized as it helps in:
disclosure guarantees consideration; introduces clarity; excludes or minimises arbitrariness; satisfaction of the party; and enables appellate fora to exercise control.
References 1.
CCS (CCA) Rules, 1965
2.
“Vigilance Manual” Vol. I (2005), Central Vigilance Commission, New Delhi
3.
“Training on Vigilance”, Conducted by the Central Bureau of Investigation Academy, Ghaziabad during 27-31 March, 2006
4.
GOI DOP&PW O.M.No.38/64/05-P&PW(A) dt. 9-11-2006; CSIR Lr.No.156(82)/98-O&M-II dt. 15-1-2007
5.
“Principles of Natural Justice”, a Lecture delivered by Justice T.S. Sivagnanam at Tamil Nadu State Judicial Academy on (2009), Wikipedia
6.
“Principles of Natural Justice”, an article published in Wikipedia by C.A. Ashish Makhija, FCA, AICWAA, LLB, Corporate Lawyer
.o.