Cases having Vigilance Overtone There are instances where the act is not covered under the definition

of misconduct as defined under CDA Rules. But it involves vigilance angle and involves vigilance investigation. However, every loss caused to the organisation, either in pecuniary or non-pecuniary terms, need not necessarily ecome the su !ect matter of a vigilance in"uiry. #t would e "uite unfair to use the enefit of hind-sight to "uestion the technical merits of managerial decisions from the vigilance point of view. $igilance investigation on a complaint would not e called for on the asis of a mere difference of opinion% perception or an error of !udgement simpliciter or lac& of efficiency or failure to attain e'emplary devotion in the performance of duties. ()nion of #ndia vs. *. Ahmed A#R +,-, .C +/001. .uch failures may e a matter of serious concern to the organisation ut not from the vigilance point of view. They have to e dealt with separately. Administrative misconduct, such as, unpunctuality, drun&en ehaviour at wor&, insu ordination etc. would again e left to the disciplinary authority to deal with in an appropriate manner. #f the lapse is without a vigilance angle, the disciplinary authority would e within its right to initiate appropriate penalty proceedings against such erring employees. However, once a vigilance angle is evident, it ecomes necessary to determine through an impartial investigation as to what went wrong and who is accounta le. 2rosecution proposals should e a le to meet the legal and technical re"uirements laid down y the Courts. Apart from ade"uate evidence to esta lish that an offence has een committed under the relevant provision of the law, there should e some facts on record from which it should e possi le to infer or presume a criminal or guilty intention ehind the omission or commission. #n the a sence of mens rea violation of rules or codal formalities could at worst e considered as transgressions of systems and procedures of the organisation and the same would, as such, e more suita le as the su !ect matter of regular departmental action (RDA1 rather than criminal prosecution. The law of the land permits prosecution as well as RDA to proceed simultaneously (*ang Bahadur .ingh v%s Bai!nath Tewari, +,3, .CR, +451. .uch simultaneous conduct of RDA and criminal prosecution should e resorted to especially if the prosecution case is not li&ely to e adversely affected y the simultaneous conduct of RDA. 6eeping RDA in a eyance should e an e'ception rather than rule. Care, however, should e ta&en to draft the charge sheet for the purpose of RDA in such a manner that it ma&es the suspect official accounta le for violation of various provisions of CDA Rules without reference to criminal misconduct. ANONYMOUS/PSEUDONYMOUS COMPLAINTS #t has een ordered under powers vested in the C$C under para 4 (v1 of the D72T Resolution 8o. 4-+%0/%,,-A$D.### dated 5th April, +,,, that with immediate effect no action should e ta&en on any anonymous or pseudonymous complaints. They must e filed. (Ref9 C$C:s 7rder 8o. 4 (v1%,,%0 dated 0,th *une, +,,,1

OTHE

COMPLAINTS

After it has een decided that the allegations contained in a complaint should e loo&ed into departmentally, the C$7 should proceed to ma&e a !reli"inar# en$%ir# (generally termed as investigation1. He may conduct the preliminary en"uiry himself or entrust it to one of the $igilance 7fficers. He may also suggest to the administrative authority to entrust the investigation to any other officer considered suita le for the purpose in the particular circumstances. The purpose of such an en"uiry is to determine whether, prima-facie, there is some su stance in the allegations. The preliminary en"uiry may e made in several ways depending upon the nature of allegations and the !udgment of the investigating officer, e.g. (a1 #f the allegation contains information, which can e verified from documents, files or other departmental records, the investigating officer should, without loss of time, secure such records etc. for personal inspection. #f any paper is found to contain evidence supporting the allegations, it should e ta&en over y him for retention in his personal custody to guard against the possi ility of the availa le evidence eing tampered with later on. #f the papers in "uestion are re"uired for any current action, it may e considered whether the purpose would e served y su stituting authenticated copies of the relevant portions of the record, the originals eing retained y the investigating officer in his custody. #f that is not feasi le, the officer re"uiring the documents or papers in "uestion for current action should e made responsi le for their safe custody after retaining authenticated copies for the purpose of en"uiry. ( 1 #n cases where the alleged facts are li&ely to e &nown to any other employee of the department, the investigating officer should interrogate them orally or as& for their written statement. #n case of oral interrogation, a full record of interrogation may e &ept and the person interrogated may e as&ed to sign as a to&en of his confirmation of his statement. (c1 ;herever necessary, important facts disclosed during oral interrogation or in written statements should e sought to e corro orated. (d1 #f it is necessary to ma&e en"uiries from the employees of any other government department or organisation or 2.< or Ban&, the investigating officer should see& the assistance of the C$7%nodal authority concerned for providing the necessary facilities.

During the course of preliminary en"uiry, the concerned employee may as a fundamental administrative re"uirement also e given an opportunity to tender his version of the facts so as to find out if he has any plausi le e'planation. #n the a sence of such an e'planation, the concerned employee may e proceeded against un!ustifia ly. There is, however, no "uestion of ma&ing availa le to him any document at this stage. .uch an opportunity need not e given in cases in which a decision to institute department proceedings is to e ta&en without any loss of time, e.g. in cases in which the pu lic servant is due to superannuate soon and it is necessary to issue the charge-sheet to him efore his retirement.

After the preliminary en"uiry has een completed, the investigating officer should prepare a self-contained report, containing inter alia the material to controvert the defence, and his own recommendations. ;here a case involves oth criminal misconduct as well as flagrant violation of systems and procedures of the organisation, further investigation into the former should e left to the CB#. INVESTI&ATION/IN'UI Y EPO T

The #nvestigating 7fficer (#71 should indicate the allegations contained in the complaint in the first paragraph of his report. The ne't paragraph should contain the gist of the investigation carried out y him as well as documentary and oral evidence that he has relied upon. The #7 should then detail the procedure and guidelines which the .uspected 2u lic .ervant (.2.1 was re"uired to follow%comply with. After reporting the .2.:s e'planation, the same along with evidence on record should e discussed and assessed y the #7. =inally, he should give his findings in the last paragraph of the report clearly ringing out the accounta ilities of the officials. .ei>ed documents and statements of the witnesses and the .2. recorded during the investigation should accompany the investigation report. The report of the #7 should thus e comprehensive, and completely documented so as to ena le the C$7 and DA to form an opinion whether any disciplinary or any other action is called for or not. The report should e forwarded to the disciplinary authority through the C$7. The disciplinary authority%C$7 should ma&e a meticulous evaluation of the actions of various officials with reference to the nature of their duties. They are also re"uired to assess the gap etween what the managers at different levels of the decision-ma&ing hierarchy actually did and what they were re"uired to do in accordance with manuals%guidelines%orders. They may follow the following criteria for the purpose and highlight in their reports if the answer to any of the "uestions is in the affirmative9(a1 Can mala fide e inferred or presumed from the actions of any of the concerned officials? ( 1 Could any of the officials e said to have engaged in a misconduct or misdemeanour? (c1 ;as the conduct of any of the officials reflective of lac& of integrity? (d1 Did the official(s1 act in e'cess of their delegated powers%!urisdiction and failed to report the same to the competent authority? (e1 Did they or any of them show any gross neglect of their official functions? (f1 #s their any material to indicate that any of them acted rec&lessly? (g1 Has the impugned decision caused any undue loss to the organisation? (h1 Has any person%party or a set of persons%parties either within the organisation or outside it een caused any undue enefit? (i1 Have the norms or systems and procedures of the organisation een flagrantly violated?

ACTION ON INVESTI&ATION

EPO T

The disciplinary authority would consider the investigation report and the first stage advice of the C$7 and decide, on the asis of the facts disclosed in the preliminary en"uiry, whether the complaint should e dropped or warning%caution etc. administered or regular departmental proceedings launched. The test to e applied at this !uncture relates to whether a prima-facie case has een uilt up on the asis of the evidence collected during the course of preliminary en"uiry. The disciplinary authority may either close the matter, or may ta&e recourse to other forms of disapproval, such as reprimanding the concerned employee, issuing him an advisory memo or warning, or communicating the 7rganisation@s displeasure etc., as per rules of the 2.<. ;hile ta&ing such a decision, the disciplinary authority should ear in mind that a departmental proceeding is not a criminal trial, and that the standard of proof re"uired is ased on the principle of Apreponderance of pro a ilities@ rather than Aproof eyond reasona le dou t@. 7n completion of the preliminary investigation of the case, the disciplinary authority shall e re"uired to forward9(i1 The preliminary investigation reportB (ii1 The relevant documents and records%files connected with the caseB (iii1 A self-contained note clearly indicating the facts on which the Commission@s advice is soughtB (iv1 The disciplinary authority@s own tentative recommendationsB (v1 #n cases investigated y the Central Bureau of #nvestigation under the .pecial 2olice <sta lishment Act, +,53, the comments of the disciplinary authority on the recommendations of the CB#B (vi1 A neatly typed ta ular statement clearly indicating the allegations against the officer proposed to e included in the charge-sheet, his defence in respect thereof, and the disciplinary authority@s and C$7@s commentsB (vii1 A panel of employees to e nominated as 2resenting 7fficersB and (viii1 The io-data of the officials concerned. P OCEDU E (O IMPOSIN& MA)O PENALTY

CHA &E*SHEET 7nce the disciplinary authority decides to initiate ma!or penalty proceedings against an employee, on the asis of the Commission@s advice or otherwise, it should ta&e immediate steps to issue the chargesheet. A properly drafted charge-sheet is the sheet anchor of a disciplinary case. Therefore, the charge-sheet should e drafted with utmost accuracy and precision ased on the facts gathered during the investigation (or otherwise1 of the misconduct involved. #t should e ensured that no relevant material and witnesses are left out and at the same time, no irrelevant material or witnesses are included.

The charge-sheet comprises the memorandum, informing the concerned employee a out initiation of proceedings against him and giving him an opportunity to admit or deny the charge(s1 within a period not e'ceeding +C days. The memorandum is to e signed y the disciplinary authority himself. #n case, the disciplinary authority is the 2resident, an officer, who is authorised to authenticate the orders on ehalf of the 2resident, may sign the memorandum. The Demorandum should e supported y anne'ures, namely, (i1 article(s1 of charge, (ii1 statement of imputations of misconduct or mis ehaviour in support of each article of charge, (iii1 list of documents and (iv1 list of witnesses. Eists of documents and witnesses should form an integral part of the chargesheet even if the disciplinary rules applica le to the concerned employee do not contain such a provision. .pecial care has to e ta&en while drafting a charge-sheet. A charge of lac& of devotion to duty or integrity or un ecoming conduct should e clearly spelt out and summarised in the articles of charge. #t should e remem ered that ultimately the #7 would e re"uired to give his specific findings only on the articles as they appear in the chargesheet. The Courts have struc& down charge-sheets on account of the charges framed eing general or vague ( ..6. Raheman $s .tate of 7rissa 3/ CET 5+, .1 #f the charge is that the employee acted out of an ulterior motive that motive must e specified ()ttar 2radesh $s .alig Ram A#R +,3/ All C541. #t is also e"ually important that while drafting a charge-sheet, special care should e ta&en in the use of language to ensure that the guilt of the charged official is not pre!udged or pronounced upon in categorical terms in advance (Deena *ahan $s Deputy Director, Tourism +,-5 0 .ER 533 Cal1. However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge-sheet (Dina andhu Rath $s .tate of 7rissa A#R +,3/ 7rissa 03 cf. also 2owari Tea <state $s Bar&ata&i (D.6.1 +,3C9 Ea E* +/01. All relevant details supporting the charges should statement of imputations. e separately indicated in the

The concerned employee is not e'pected to furnish a detailed reply to the chargesheet. He is re"uired only to admit or deny the charge(s1. Therefore, the rules do not provide for ma&ing availa le the relevant documents to the concerned employee for su mission of his defence statement. However, notwithstanding the legal position, copies of the documents and the statements of witnesses relied upon, as far as possi le, may e supplied to him along with the charge-sheet. #f the documents are ul&y and copies cannot e given, he may e given an opportunity to inspect those documents and su mit his reply within +C days@ time.

DE(ENCE STATEMENT ADMISSION O( CHA &E #f the charged employee admits all the charges unconditionally, the disciplinary authority shall record its finding on each charge. ;here the advice of the Commission is re"uired, the case may e referred to the Commission, along with the comments of the disciplinary authority, for second stage advice. #n other cases, the disciplinary authority should proceed to pass a self-contained and reasoned spea&ing order of punishment, defining the scope of punishment to e imposed in clear terms,in accordance with the relevant rules. ACCEPTIN& DE(ENCE STATEMENT O MODI(YIN& CHA &ES The disciplinary authority has the inherent power to review and modify the articles of the charge, or drop some or all of the charges, after the receipt and e'amination of the written statement of defence. #t is not ound to appoint an in"uiring authority to in"uire into such charges as are not admitted y the charged employee ut a out which the disciplinary authority is satisfied that these do not re"uire to e proceeded with further. However, efore the disciplinary authority e'ercises the aforesaid power, it may consult the CB# in cases arising out of the investigations conducted y them. The Commission should also e consulted where the disciplinary proceedings were initiated on its advice. CHA &ES NOT ADMITTED/DE(ENCE STATEMENT NOT SU+MITTED #f the disciplinary authority finds that any or all the charges have not een admitted y the charged employee, or if he has not su mitted the written statement of defence y the specified date, it may cause an in"uiry to e made to in"uire into the charges framed against the charged employee. The procedure for conducting the in"uiry is indicated in the succeeding paragraphs. APPOINTMENT O( IN'UI IN& AUTHO ITY/O((ICE )nder the disciplinary rules, the disciplinary authority may itself in"uire, or appoint an in"uiring authority%officer (#71 to in"uire into such charges against the charged employee%officer (C71 if the latter does not admit the same or has otherwise not su mitted his defence statement within the specified time. #t should, however, e ensured that the officer so appointed has no ias and had no occasion to e'press an opinion at any stage of the preliminary in"uiry.

#t should ensure that the in"uiries are completed within the stipulated time limitation and no in"uiry should suffer on account of non-availa ility of an #7. The disciplinary authority should give the charged officer a period of +C days time after the service of the charge-sheet to deny or accept the charges. #n case no reply is received within this period, the disciplinary authority may proceed to the ne't stage of the in"uiry. APPOINTMENT O( P ESENTIN& O((ICE The disciplinary authority would also appoint an officer, called as 2resenting 7fficer (271, to present the case on its ehalf efore the in"uiring authority. )nli&e in the past, it would now not e necessary to nominate a CB# officer to act as 27 in the cases investigated y them. All 2.<s, among others, have already een directed to indicate, henceforth, the names of the 2resenting 7fficers to e appointed while ma&ing a first stage reference to the Commission involving initiation of ma!or penalty proceedings. After the Commission endorses the proposed action, the 2.<s will ensure that the #n"uiry 7fficer and 2resenting 7fficer are appointed simultaneously after the service of the charge-sheet on denial of charges y the Charged 7fficer. (Ref. C$C:s Directive 8o. F (+1(g1%,, (01 dated +,.0.,,1. DE(ENCE ASSISTANT The charged employee has also a right to ta&e assistance of a pu lic servant, generally termed as Defence Assistant (DA1, to help him in the presentation of his case in a departmental in"uiry. Dost rules provide that the C7 may not engage a legal practitioner to present the case on its ehalf efore the #7, unless the 27 appointed y the disciplinary authority is also a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. #t is, however, clarified that if the case is eing presented, on ehalf of the disciplinary authority, y a G2rosecuting 7fficerH of the CB# or y the Eaw 7fficer of the Department, such as a Eegal Adviser etc., there would evidently e good and sufficient circumstances for the disciplinary authority to e'ercise his discretion in favour of the delin"uent employee and allow him to e represented y a legal practitioner. Any e'ercise of discretion to the contrary in such cases is li&ely to e held y the court as ar itrary and pre!udicial to the defence of the delin"uent employee. #n order to ensure e'peditious disposal of in"uiry proceedings, a person will not e permitted to act as defence assistant in more than three cases at any given point of time. The #7 shall satisfy himself that the aforesaid condition is satisfied. P ELIMINA Y HEA IN& 7n the date fi'ed for the purpose, the #7 shall as& the C7 whether he is guilty or has any defence to ma&e. #f the C7 pleads guilty to any of the articles of charge, the #7 will record the plea, sign the record and o tain the signature of the C7 thereon. The #7 will then return a finding of guilt in respect of those articles of charge, which the C7 admits.

#n respect of other charges, the #7 would as& the 27 to adduce evidence to prove the articles of charge and ad!ourn the case to a date within 4/ days of the preliminary hearing. ;hile ad!ourning the case, the #7 would also record the order permitting inspection of listed documents y the C7. The order should direct the latter to su mit a list of witnesses to e e'amined on his ehalf and the list of additional documents needed y him for his defence. The #7 should ma&e it clear to the C7, during preliminary hearing, oth orally and in writing in the Daily 7rder .heet that he should indicate the relevance of defence witnesses and additional documents to ena le the #7 to decide upon admissi ility of evidence desired to e led y the defence. =or reasons to e recorded y him in writing, the #7 may refuse to re"uisition such documents, or allow such witnesses, as are in his opinion, not relevant to the case. 7n the other hand, where he is satisfied that the documents re"uired y the defence are relevant, he may re"uisition the same from their custodian, through the 27 or otherwise, y a specified date. The denial of access to documents, which have a relevance to the case, may amount to violation of reasona le opportunity. Therefore, the power to deny access on grounds of pu lic interest should e e'ercised only for reasona le and sufficient grounds to e recorded in writing. E&ULA HEA IN&S (i1 &eneral - 7nce all the preliminaries are over, the #7 would fi' the dates and venue of regular hearings. He should, as a rule, hear the case on day-to-day asis and not grant any ad!ournments, save in unavoida le and e'ceptional circumstances. Admitted documents may e ta&en on record straightaway and mar&ed as e'hi its and admitted facts, if any, e ta&en note of in the order-sheet. (ii1 Presentation o, Prosec%tion case - #n the first instance, the 27 would e as&ed to present his case. He should introduce unadmitted%disputed listed documents through relevant witnesses. He should in the e'amination-in-chief, e'amine his witnesses in such a way that rings out the case in a logical manner. The #7 should also ensure that the witness understands the "uestion properly. He should protect him against any unfair treatment, disallowing "uestions which are leading, irrelevant, oppressive or dilatory in nature. As far as possi le, all evidence should e recorded in narrative form. 2revious pre-recorded statements admitted y the witness should also e ta&en on record. After the e'amination of a witness is over, the witness may e cross-e'amined y the C7 or his DA to ring out further facts, remove discrepancies, or throw light on the relia ility of the witness. After the cross-e'amination, the 27 may re-e'amine the witness on any point on which he had een crosse'amined ut not on any new matter unless specifically allowed y the #7. #n the latter case, the C7 would have a right to further cross-e'amine the witness. The #7 may also put such "uestions to a witness as he thin&s fit, at any time during the in"uiry, to ring out the truth and for the emergence of a fair and clear understanding of

the case. ;ith this end in view, he may allow witness on any "uestion put y him.

oth sides to cross-e'amine such a

(iii1 Hostile -itness - #f during the e'amination-in-chief of a prosecution witness, the 27 feels that the witness is hostile or that his testimony is li&ely to affect the prosecution case or that the witness is &nowingly not telling the truth, he may see& the permission of the #7 to cross-e'amine that witness after he has een declared hostile. #n such situations, the 27 may, with the prior permission of the #7, also put leading "uestions to the witness so as to ring out the truth. (iv1 A."ission o, &%ilt - The C7 may decide to plead guilty to any of the charges during the in"uiry. #n that case, the l7 may accept the plea and record his findings. He should nonetheless, continue the case to its logical conclusion if, in his opinion, the admission is conditional or only relates to part of the charges. (v1 Ne/ Evi.ence * Before the closure of the case on ehalf of the disciplinary authority, the #7, in his discretion, may allow the 27 to produce evidence not included in the list given to the C7, or may himself call for new evidence. #n such situations, the C7 would e entitled to have a copy of such evidence, an ad!ournment of at least three clear days, and an opportunity for inspecting the relevant documents. The #7, however, should not allow such evidence for filling up any gap in the evidence on record ut only when there has een an inherent lacuna or defect in the evidence originally produced. (vi1 De,ence State"ent * After closure of the case on ehalf of the disciplinary authority, the #7 shall as& the C7 to state his defence. #f the C.7. su mits the defence in writing, he should sign every page of it. #f he ma&es an oral statement, the #7 should record the same and get it signed y the C7. A copy of the statement of defence should e given to the 27. (vii1 Presentation o, De,ence Case * The C7, thereafter, would e as&ed to produce evidence in support of his defence. Additional documents permitted y #7 may e ta&en on record and mar&ed as e'hi its, if this tas& has not een performed earlier. The C7 or his DA would then proceed to e'amine his witnesses, who will e cross-e'amined y the 27, and ree'amined y the C7 on the asis of the same procedure as indicated in the case of prosecution witnesses. (viii1 CO A!!earing as -itness * The C7 may, in his discretion, offer himself as his own witness. <'amination-in-chief of C7 would e conducted y the Defence Assistant, cross-e'amination y the 2resenting 7fficer and re-e'amination y the Defence Assistant. #f there is no Defence Assistant, then the C7 will ma&e a suo motu statement and thereafter the 2resenting 7fficer will cross-e'amine him. (i'1 Man.ator# '%estions to CO * #f the C7 does not offer himself as a witness, the #7 shall e'amine him generally to ena le him to e'plain the circumstances appearing against him. The #7 may do so, even if the C7 has offered himself as a witness.

('1 -ritten +rie,s 0# PO/CO * After the completion of the production of evidence, the #7 may hear the 27 and the C7, or permit them to file written riefs of their respective case, if they so desire. #f they are permitted to su mit written riefs, the 27 may su mit his rief, first, within a wee& of the last hearing of the case. He should also certify that a copy of the rief has een given to the C7. The C7 may, thereafter, furnish his rief to the #7 within a further period of one wee&. ('i1 Dail# Or.er Sheets - The #7 would maintain a daily order sheet to record in rief the usiness transacted on each day of the hearing. Re"uests and representations y either party should also e dealt with and disposed of in this sheet. Copies of the recorded order-sheets will e given to the 27 and C7 with their signatures thereon, if they are present. #f they are not present, these will e sent y post. The Defence Assistant will also sign the sheet, ut a copy will not e given to him. ('ii1 E1 !arte Procee.ings * #f the C7 does not su mit his written statement of defence within the specified time, or does not appear efore the #7 on the dates fi'ed for the in"uiry or refuses to comply with the provisions of the rules, the #7 may hold the in"uiry e' parte. #n that event the copies of the depositions, daily order sheets etc. may e sent to him at his last &nown address. A copy of the written rief su mitted y the 27 may also e sent to him so as to give him a reasona le opportunity to su mit defence rief. The C7, always has the option to participate in or !oin the in"uiry at any stage. ('iii1 Alleging +ias against IO - #f the C7 represents alleging ias against the #7, the #7 should &eep the proceedings in a eyance and refer the matter to the disciplinary authority. He should resume the in"uiry only after he is advised y the disciplinary authority to go ahead. ;herever the Charged 7fficer su mits a review petition against the #n"uiry 7fficer on grounds of ias, the proceedings should e stayed and the representation referred, along with relevant material, to the appropriate Reviewing Authority for considering the same and passing appropriate order thereon. =or this purpose, the Reviewing Authority would normally e the Appellate Authority. 7 viously, any representation against the appointment of an #n"uiry 7fficer on grounds of ias should e made as soon as the #n"uiring 7fficer has een appointed, ut not after the proceedings have commenced and reached an advance stage. ('iv1 Change o, IO * ;henever for any reason the #7 is changed and a new #7 is appointed to continue the in"uiry, he shall ta&e into account the evidence recorded or partly recorded y his predecessor. #f he is of the opinion that further e'amination of any of the witnesses whose evidence has already een recorded is necessary in the interest of !ustice, he may recall, e'amine, re-e'amine and cross-e'amine such witness.

SU+MISSION O( IN'UI Y EPO T After considering the oral and documentary evidence adduced during the in"uiry, the #7 may draw his own inferences, as a rational and prudent person, and record his findings on each charge. He should rely only on such facts as the C7 had the opportunity to refute. Ienerally, the C7 raises a plea of a sence of mala fide. #t is clarified that the 27 is not e'pected to prove mala fide in cases where the act itself spea&s of a dishonest motive e.g. a person travelling without tic&et in a train or a person who has een una le to e'plain his assets satisfactorily. Dala fide, however, is not relevant in proving a misconduct as it does not form an essential ingredient of it. Also, every act of a pu lic servant is e'pected to e honest, ona fide and reasona le. An act is not ona fide if it is committed without due care and attention. ;hile assessing the evidence, the #7 should also ear in mind that the proceedings are civil rather than criminal or "uasicriminal in nature. Accordingly, the standard of proof re"uired in a disciplinary in"uiry is that of Gpreponderance of pro a ilityH and not Gproof eyond reasona le dou tH. The #7 should confine his conclusion only up to the stage of recording whether the charge is proved, or partially proved or not proved. The conclusion should e derived from the facts and circumstances of the case and not on its e'tenuating aspects. He should not recommend the punishment to e imposed on the C7. 8either is he re"uired to comment on the "uality of drafting of the chargesheet, nor the conduct of the disciplinary authority in framing the charges or that of the 27 in arguing the same. The #7 ecomes functus officio as soon as he su mits the report and cannot ma&e any change thereafter. The initial urden in the departmental in"uiry of proving the charge with evidence on record is that of the prosecution. 7nce the same is discharged, the urden of disproving the same and%or ringing to light special circumstances relating to the innocence of the C7 will e that of the latter. 7therwise, the proceedings eing only "uasi-!udicial rather than !udicial in nature, the strict rules of evidence stipulated in the #ndian <vidence Act would not e applica le e'cept to the e'tent specifically indicated in the relevant rules. The report of the #7 should contain9 (i1 An introductory paragraph in which references to the orders of appointment of #7 and 27 and engagement of DA will e madeB (ii1 Brief account of hearings, mar&ing of e'hi its, recording of evidenceB (iii1 Reproduction of articles of charge (s1B (iv1 #ndication a out charges which are dropped, or admitted, or have een in"uired intoB (v1 Brief statement of the case of the disciplinary authority in respect of the charges in"uired intoB

(vi1 Brief statement of the case of the Charged 7fficerB (vii1 =or each charge in"uired into (a1 the case in support of the chargeB ( 1 the case of defenceB (c1 assessment of evidenceB and (d1 the findings. (viii1 A rief summary of the findings. Along with the report, the #n"uiry 7fficer should send to the disciplinary authority a folder containing the following9(a1 Eist of e'hi its produced y the 2resenting 7fficer. ( 1 Eist of e'hi its produced y the Charged 7fficer. (c1 Eist of prosecution witnesses. (d1 Eist of defence witnesses. (e1 A folder containing deposition of witnesses in the order in which they were e'amined. (f1 A folder containing daily order-sheets. (g1 A folder containing the written statement of defence. (h1 ;ritten riefs of oth sides. (i1 Correspondence =older. The #7 must complete the in"uiry proceedings and su mit his report within a period of si' months from the date of his appointment. ACTION ON IN'UI Y EPO T The #7@s report is intended to assist the disciplinary authority in coming to a conclusion a out the guilt of the C7. The disciplinary authority has the inherent powers to disagree with the findings of the #7 and come to his own conclusions on the asis of his own assessment of the evidence forming part of the in"uiry. #n view of the .upreme Court@s !udgement in Ram>an 6han@s case, if the disciplinary authority is different from the in"uiring authority, and if the latter has held all or any of the charges against the C7 as proved, the disciplinary authority should as& the C7 for his representation, if any, within +C days. #n case the #7 has held any or all the charges against the C7 as Gnot provedH, the disciplinary authority should consider the #7@s report in the first instance. #f he disagrees with the #7@s findings, he should communicate his reasons for disagreement to the C7 while as&ing for his representation. The disciplinary authority may ta&e further action on the in"uiry report on consideration of the C7@s representation or on the failure of the C7 to su mit the same within the specified time.

The disciplinary authority, in e'ercise of his "uasi-!udicial powers, may issue an order imposing a ma!or or a minor penalty on the C7B or e'onerate him of the charges, if in his opinion, none of the charges has een proved or what has een proved, is nonactiona le. He may remit the case for further in"uiry if he considers that there are grave lacunae or procedural defects which vitiate the in"uiry or if some important witnesses were not e'amined. (6.R. De $s. Collector of Central <'cise, A#R +,-+ ..C. +55-1. The fact that the in"uiry has gone in favour of the C7 or the evidence led in the in"uiry has gaps, should not e a reason for remitting the case for further in"uiry (Dwar&a Chand $s .tate of Ra!asthan J A#R +,C, Ra!. 4F1. #n such a case, the disciplinary authority may disagree with the #7@s findings. The final order passed y the disciplinary authority should e a well-reasoned spea&ing order. The cases re"uiring the Commission@s advice may e referred to it, in the form of a self-contained note, along with the following documents9 (i1 The #7@s report and the connected recordsB (ii1 Disciplinary authority@s tentative findings on each article of chargeB (iii1 Representation of the C7 on the in"uiry reportB (iv1 Tentative conclusions of the disciplinary authority and the C$7B and (v1 ;herever the in"uiry proceedings have een delayed, the C$7 shall specifically comment on the delay fi'ing accounta ility for the delay and the action ta&en%proposed against those responsi le for the same. The disciplinary authority is to forward the case, in the manner e'plained a ove, to the C$C within 4/ days of the receipt of the in"uiry report from the CD#%#7. ;hile imposing a punishment on the officer, the disciplinary authority should ensure that the punishment imposed is commensurate with the gravity of the misconduct proved against the C7. He may also ta&e into account at this stage the following other criteria9 (a1 the e'tenuating circumstances, as they emerge from the in"uiryB and ( 1 the trac& record of the charged officer. #t should also e ensured that the punishment so imposed is not academic or ineffectiveB for e'ample, there is no point in imposing a penalty of withholding of an increment, if the C7 has already een drawing pay at the ma'imum of the pay scale. .imilarly, there is no point in imposing a penalty of withholding of promotion for a specified period if the officer is not due for promotion.

P OCEDU E (O

IMPOSIN& MINO PENALTIES

The procedure for imposing a minor penalty is much simpler than that for imposing a ma!or penalty. =or the imposition of the former, the disciplinary authority is only re"uired to serve a Demorandum on the concerned employee, enclosing therewith a statement of imputations of misconduct or mis ehaviour and as&ing for a reply within a specified period, generally +/ days. 7n receipt of the written statement of defence, if the disciplinary authority is satisfied that the misconduct imputed to the C7 has not een esta lished, he may, through a written order, drop the charges. 7n the other hand, if the disciplinary authority considers the C7 guilty of the misconduct in "uestion, he may impose one of the minor penalties. The disciplinary authority, in his discretion, may also decide to conduct an in"uiry following the same procedure as stipulated for the imposition of a ma!or penalty, if in his opinion, holding of an in"uiry is necessary to come to a definite conclusion a out the guilt or innocence of the C7 or if the employee re"uests for the same.