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OFFICE MEMORANDUM


Departmental proceedings against Government servants – Procedure for consultation with the Union Public Service Commission

Department of Personnel & Training has issued various instructions on Departmental proceedings against Government servants – Procedure for consultation with the Union Public Service Commission. The essence of various instructions in the matter has been summarized in the following paras for guidance and better understanding: -

1.       While forwarding a disciplinary case for consultation with the Union Public Service Commission, the Disciplinary Authority should not express any opinion regarding the penalty to be imposed on the officer. UPSC has brought to the notice of this Department that of late, in many cases the Disciplinary Authorities (DAs) while referring the disciplinary case to the Commission for advice proposed the quantum of penalty. The values of independence, impartiality and integrity are the basic determinants of the Constitutional conception of the UPSC. The Commission’s function is purely advisory. The consultation prescribed by the Constitutional provision is only to afford proper assistance to the Government in assessing the guilt or otherwise of delinquent officer as well as the suitability of penalty to be imposed.

2.       The Disciplinary Authorities while referring the disciplinary cases to the UPSC for advice, should not propose to the Commission the quantum of penalty.

OM No: No. 39034/1/2009-Estt.(B) Dated: 12/1/2010

3.       All Ministries/ Departments are requested to ensure that references to the Commission in disciplinary matters [under Article 320(3) (c) of the Constitution of India read with Regulation 5 of the UPSC (Exemption from Consultation) Regulations, 1958] are made without any avoidable delay so that adequate time is available for the Commission to give their advice and also for the department to take a decision in time.

                             

4.       The Commission has again brought to the notice of this Department that the references on disciplinary matters from various Ministries/ Departments are being received in the UPSC only a few days before the officer is due to retire or where a deadline set by a judicial order is to expire shortly, thereby leaving little time for the Commission to tender its advice.

 

5.       The disciplinary proceeding being quasi-judicial in nature, the Commission tenders its advice after a thorough judicious and independent consideration of all relevant facts, which is a time-consuming process. While the Commission tries to give its recommendation most expeditiously, the process generally takes 3 to 4 months. All Ministries/ Departments are once again requested to ensure that the complete reference on disciplinary matters [under Article 320(3) (C) of the Constitution of India read with Regulation 5 of the UPSC (Exemption from Consultation) Regulations, 1958] is made to the Commission allowing sufficient time to the Commission to give its advice. The Commission would expect that the complete reference is received in the Commission at least six months in advance of the retirement of the charged officer in order to get advice of the Commission and the implementation thereof.

OM No: No. 39011/12/2009-Estt(B) Dated: 10/5/2010

6.       This Department had set up a Committee of Experts under the chairmanship of Shri P.C. Hota, former Chairman, UPSC to suggest measures to expedite the process involved in disciplinary/ vigilance proceedings. In its Report, the above Expert Committee has observed that at present in as many as 40% cases of disciplinary inquiries referred to the UPSC for advice, the case records are deficient in terms of requisite information wanted by the UPSC as per the proforma prescribed and therefore returned by the UPSC to the Department/ Ministry for rectification of the deficiencies which causes avoidable delay in the Department/ Ministry getting timely advice from the UPSC. In order to ensure prompt disposal of disciplinary inquiries by Departments/ Ministries, the Expert Committee has recommended that before the case records in a Disciplinary Inquiry are sent to the UPSC for advice, the Joint Secretary/ Director/ Deputy Secretary in charge of the matter in the concerned Department/ Ministry must give a certificate in writing that the case records are being sent to the UPSC for advice after complying with all items in the standard "Proforma" by the Department/ Ministry. The expert Committee has suggested that if the certificate of Joint Secretary/ Director/ Deputy Secretary is found to be defective, as all items in the standard proforma have not been complied with before furnishing the certificate and the certificate has been issued in a slip-shod manner, the concerned Joint Secretary/ Director/ Deputy Secretary of the Department/ Ministry should be held responsible.

 

7.       In view of the above, it is reiterated that all Ministries/ Departments may ensure that all the requisite details in the proforma are properly filled up and sent with the relevant documents required to be sent to the UPSC so that there does not arise occasion for the UPSC to make a back reference to the Ministries/ Department for the deficiencies found by the Commission in the papers sent to them. While forwarding the case records to the UPSC, a certificate shall be appended duly signed by the concerned Joint Secretary that the case records are being sent to the UPSC for advice after complying with all the items as applicable in the proforma by the Ministry / Department concerned. In future, if the UPSC has to return the documents in this regard for correct filling up and forwarding of the requisite documents stated in the proforma, the Commission may address the letter to the Secretary in the Ministry/ Department. In case it is found that the Proforma had been forwarded to the UPSC in a casual manner, the Secretary in the Ministry / Department may issue a written warning to the Joint Secretary/ Director / Deputy Secretary concerned to be more careful in future. A second time default by the same officers shall invite minor penalty proceedings against them.

OM No: No. 39011/12/2010-Estt.(B) Dated: 14/9/2010

8.       The disciplinary proceedings taken against Government servants should be processed and completed expeditiously. Occasionally, the charged officers approach the Courts to quash the disciplinary proceedings and in many such cases the Courts give direction to the Government to complete the proceedings within a time limit prescribed by the Court. In certain instances the Government seeks further time from the Court and in certain other instances, the petitioners file contempt petitions for not having completed the proceedings as per the Court orders. In many of such cases, the UPSC has to be consulted as per the existing regulations, before final orders are issued.

9.       The UPSC has brought to the notice of this Department that in the above cases, some Ministries/ Departments have stated in the affidavit filed before the Court that the matter has been pending with the UPSC and the delay in completing the proceedings was due to the delay in receipt of advice from the UPSC although such cases had been returned by the Commission to the Administrative Ministry to rectify the deficiencies noted by it. The Commission generally takes 3-4 months to render its advice after the complete case records have been received by the Commission and that the Ministries/ Departments should ensure that the prescribed proforma for sending the case records to the UPSC is filled with due care and attention to avoid any back reference by the Commission to rectify the deficiencies. A case may not be taken as delayed on the part of UPSC if the Commission has returned the same to the Administrative Ministry to remove deficiencies.

10.     All Ministries/ Departments are requested that in cases where the Court are being apprised the time taken in finalizing a disciplinary proceeding through affidavit, information in regard to the pendency of the matter before the Union Public Service Commission may be correctly projected.

OM No: No. 39011/12/2009-Estt.(B) Dated: 16/11/2010

11.     This Department has been impressing upon various Ministries/Departments to complete the disciplinary proceedings by minimizing avoidable delays. In para 3.11.10 of the 4th report of the 2nd ARC titled “Ethics in governance”, it has been observed from a sample study that the Administrative Departments take more than 2/3rd of the time taken to process the case under the CCS (CCA) Rules. In the sample study, the Inquiry Officers were found to be taking about 17% of the time and the UPSC about 5% of the time to conclude their findings.

12.     The UPSC has brought to the notice of this Department that during the year 2010-11 the Commission had to return the case to the concerned Departments in more that 40% of the cases on account of procedural/ documentary deficiencies. A list of the common deficiencies observed by the Commission in these cases are given in the Annexure. All Ministries/ Departments are requested to ensure that the deficiencies indicated in the Annexure are not repeated in the proposals being sent to the UPSC for seeking its advice on disciplinary matters.

13.     In cases where the Courts are being apprised of the time taken in finalizing a disciplinary proceeding through affidavit, information in regard to the pendency of the matter before the UPSC may be correctly projected. The average time taken by the Commission in tendering advice in disciplinary proceedings is about 4 to 6 months. The Commission tender its advice in about 3 months in those cases where priority is attached due to direction of Court. In such cases, in order to expedite scrutiny of the cases a single window system on pilot basis had been introduced in the UPSC from September 2010 and initially 9 Ministries/ Departments were included in the single window system. The Commission has now decided to extend the single window system to all other Ministries/ Departments whose offices are situated in Delhi for submission of disciplinary cases involving court cases. Under this system, a Ministry/ Department while referring the disciplinary cases to the Commission for advice, is required to authorize a representative, not below the level of Under Secretary, to hand over the case to the designated  officer in the UPSC, with prior appointment. The cases received from a Ministry/ Department are initially scrutinized on the spot, in terms of information sought in the Proforma check list issued by this Department. Only cases which are complete as per the check list are accepted by the Commission for further scrutiny and examination. Incomplete cases are returned at the counter itself after pointing out the deficiencies. In UPSC, the case records are to be handed over to the Under Secretary (S-1), (Tel No. 23387346/23098591-Ext.4342) in Room No. 10-A located in the Annexe Building of the Commission. The case records should explicitly indicate the status of the CAT/ Court cases, the fact regarding the time limit for disposal of the case if any and extension sought for providing at least 3-4 months of time to the Commission for disposal of the case.

14.     All Ministries/ Departments are requested to adhere to the above procedure for submission of disciplinary cases involving Court cases to the Commission through single window system.

ANNEXURE to OM No. 39035/01/2011-Estt.(B) dated 10th May, 2011

  1. The documents indicated in proforma/checklist not duly referenced with page number, folder name etc.
  2. Vague comments/ information e.g. ‘….’ or ‘do’ in the proforma were mentioned.
  3. The documents were not original or duly authenticated.
  4. Photocopies were signed in black ink.
  5. The exhibits and other documents were not legible.
  6. Documents in regional language:-
  1. Translation not provided.
  2. Translation unauthenticated.
  1. In case of retired CO, the information like last pay drawn, monthly pension and gratuity were not provided. No specific information provided whether pension and /or gratuity is withheld or released.
  2. Para-wise comments of the DA on the representation of the CO on IO Report were not part of the record.
  3. Daily Order Sheets were not available for all the dates of hearing.
  4. In minor penalty cases, the Relied Upon Documents (RUDs) referred in the statement of imputation were not forwarded and not properly referenced.
  5. The column related to general examination of the CO did not clearly indicate the reference of related papers.
  6. In case of disagreement of DA with IO Report, a tentative note of disagreement was not forwarded to the CO.
  7. The para-wise comments of the DA did not address the points raised by the CO in his reply.
  8. In case of pension cut proposals, the approval of President was not taken. The approval of the President in all pension cut cases is mandatory.
  9. The DA in a large number of cases, expresses opinion regarding the quantum or penalty or amount of pension cut to be imposed on the CO.
  10. Procedure of prescribed Complaints Committee on Sexual Harassment were not followed.

OM No: No.39035/01/2011-Estt(B) Dated: 10/5/2011

15.     The Disciplinary Authority should not express any opinion regarding the penalty to be imposed on the officer while forwarding a disciplinary case for consultation with the Union Public Service Commission. UPSC has brought to the notice of this Department that in many cases the Disciplinary Authorities (DAs) while referring the disciplinary case to the Commission for advice proposed the quantum of penalty. Such recommendation by Disciplinary Authorities at this stage recommending a penalty by Disciplinary Authorities at this stage recommending a penalty by Disciplinary authority is not in keeping with the proviso(s) to Rule 15(3) & 15(4) of CCS (CCA) Rules, 1965. The consultation prescribed by the Constitutional provision is to afford proper assistance to the Government in assessing the guilt or otherwise of delinquent officer as well as the suitability of penalty to be imposed.

16.     As per Rule 14 (23) (i) of the CCS (CCA) Rules, 1965, the inquiry officer is to prepare an inquiry report which should inter-alia contain an assessment of the evidence in respect of each article of charge as well as findings on each article of charge and reasons therefor. It has, however, been observed that in a number of cases, no clear finding is given separately on each of the articles of charge in the inquiry report. Instead, the IOs tend to record findings in the form of a running narrative where as the articles of charge are clubbed together, which is not correct. Submission of a comprehensive and cogent report and assessing each article of charge separately by the I.O. is essential to evaluate the gravity of each article of charge.

17.     The UPSC has also observed that in a number of cases there has been considered delay on the part of the disciplinary authorities in seeking the advice of the Commission, resulting in undue delay causing hardship to the charged officer. It may also be noted that there have been instances where the Hon’ble CAT/Courts have struck down entire disciplinary proceedings simply on the ground of delay.

18.     The Disciplinary Authorities while referring the disciplinary cases to the UPSC for advice should adhere strictly to provisions of the Rules 14 and 15 of CCS (CCA) Rules, 1965 or other applicable Discipline and Appeal Rules.

OM No: No. 39034/07/2012-Estt(B) Dated: 15/5/2012

 

19.     The Proforma/ Checklist for referring disciplinary cases to Union Public Service Commission (UPSC) in terms of Article 320(3)(c) of the Constitution of India read with Regulation 5 of the UPSC (Exemption from Consultation) Regulations, 1958 (as amended from time to time), has been revised in consultation with UPSC so as to ensure that there are no shortcomings while sending the requisite information/ documents to the Commission. It is also expected that the complete reference is received in the Commission at least three months prior to the retirement of the charged officer in case of minor penalty proceedings and at least six months prior to retirement in case of major penalty proceedings in order to get advice of the Commission and the implementation thereof. Wherever the time is less than three months/ six months from the retirement of the Government servant, cogent reasons justifying late submission of case to UPSC are also required to be indicated.

20.     The modified Proforma/Checklist for forwarding disciplinary cases to the UPSC is as below:

 

 

PROFORMA/ CHECK LIST FOR FORWARDING DISCIPLINARY CASES TO THE UNION PUBLIC SERVICE COMMISSION

                             

PART I : SERVICE AND RELATED PARTICULARS

1.Name of charged officer and the service on which borne

 

2.(i)Whethertemporary/permanent/contract service

   (ii) If confirmed, date of confirmation

 

 

*3. Post held substantively, if in permanent service

  1. Designation
  2. Pay Level in the pay matrix (indicating pay index, etc.)
  3. Pay drawn
  4. Date from which pay shown against (c) drawn
  5. Date of increment

 

 

4. Post held at present

  1. Designation
  2. Pay Level in the pay matrix (indicating pay index, etc.)
  3. Pay drawn
  4. Date from which pay shown against (c) drawn
  5. Date of next increment

 

 

5. The next lower post (along with pay level in the pay matrix), the officer would have held but for his appointment to the present post he is holding

 

 

6. Date of Birth

 

 

7. Date of joining Govt. Service

 

 

8. Due date of retirement or actual date of retirement, if already retired

 

 

9.  (a) Amount of monthly pension  admissible/sanctioned

         (b)  (i) Amount of gratuity admissible (in respect of disciplinary proceedings initiated during service)

               (ii) Amount of gratuity withheld (for disciplinary proceedings after retirement)

 

 

*Not to be filled in the case of All India Service officers

 

10.     (a) Appointing authority in respect of the post held at present, or the authority which actually appointed the person, if that authority is higher.

          (b) Authority competent to impose the penalty in respect of the post held at present

          (c) Appellate authority in respect of the post held at present

 

 

11. Whether an oral inquiry, if required under the rules, has been held

 

 

12. Name and designation of Inquiry officer appointed, if any.

 

 

 

PART II : DETAILS OF CASE RECORDS

(All the records are required to be arranged and cross-referenced, as indexed below and page numbers of the file/ folders to be indicated against each item.)

 

 

Item

 

*Reference/comments

 

 

  1. ORIGINAL CASES

 

(Where the Central Government or the State Government is the Disciplinary Authority and an order of penalty is to be passed for the first time)

 

  1. Complaint, if any, received by the Authorities

 
  1. (i)Report of the preliminary enquiry, if any, held in the matter leading to the institution of formal disciplinary proceedings against the C.O. (together with Depositions recorded)

 

(ii)Order, of suspension/ revocation of suspension, if any,

 
  1. Order, if any of the competent authority for joint/common proceedings where two or more Govt. servants are involved.

 
  1. i) Charge sheet together with the statement of imputations along with enclosures.

ii) Records of delivery of charge sheet to the charged officer

iii) Whether the Charge sheet issued as per the Rules

 

 

*Please indicate references in terms of page numbers, file numbers, folders, etc. Do not leave any column blank. If a document is not enclosed, indicate reasons.
  1. Reply of the Charged Officer

 
  1. A note from the Disciplinary Authority explaining the factual or procedural points, if any, raised in the Charged Officer’s reply in minor penalty cases where no enquiry has been held

 
  1. Order of the Disciplinary Authority appointing the Inquiry Officer

 
  1. Order of the Disciplinary Authority appointing the Presenting Officer

 
  1. Daily Order Sheets maintained by the Inquiry Officer, indicating the progress of oral inquiry

 
  1. Correspondence of the Inquiry Officer, if any, with the Disciplinary Authority or the Charged Officer

 
  1.  i) Depositions – oral statements, recorded from prosecution witnesses and defence witnesses

ii) Statement of defence of the Charged Officer

iii) General examination of the charged officer

iv) Whether copies of relevant documents have been supplied to the Charged Officer

v) Exhibits (in original/ legible copies duly authenticated)

     a) Prosecution

     b) Defence

 

 
  1. i) Written brief, if any, submitted by the Presenting Officer

 

ii) Whether a copy of brief of Presenting Officer supplied to the Charged Officer

 
  1. Written brief, if any, submitted by the Charged Officer.

 

 
  1. Inquiry Officer’s report

 

 
  1. i) Whether Inquiry Officer’s report provided to the charged officer.

ii) Whether disagreement of the Disciplinary Authority, if any, on the report of the Inquiry Officer, communicated to the Charged Officer

iii) Representation of the Charged Officer on the findings of the Inquiry Officer.

iv) Para-wise comments of the Disciplinary Authority on the representation of the Charged Officer, if any.

 

 
  1. Whether the Disciplinary Authority has considered the merits of the case and come to the conclusion that a formal penalty is called for

 
  1. In cases of minor penalty, following information may also be provided:
  1. Whether the case is being submitted at least 90 days prior to the date of retirement.
  2. If not, the reasons for late submission of the case may be indicated.

 

 
  1. In cases of major penalty, following information may also be provided:
  1. Whether the case is being submitted at least 180 days prior to the date of retirement.
  2. If not, the reasons for late submission of the case may be indicated.

 

 

  1. CONVICTION CASES

 

(where any penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge)

 

  1. Complaint/ F.I.R.

 

 
  1. Investigation Report

 

 
  1. Judgement of the Court

 

 
  1. Show Cause Notice issued to the Government servant

(The Show Cause Notice should tentatively propose imposition of the penalty of highest grade, i.e., dismissal from service which shall ordinarily be a disqualification for future employment under the Government / withholding of hundred percent of pension and gratuity in full on permanent basis, as the case may be)

 
  1. Record of the delivery of the Show Cause Notice

 
  1. Representation of the Government servant on the Show Cause Notice

 
  1. Comments of DA on the representation of Government servant

 
  1. Whether the disciplinary authority has considered the merits of the case and come to the conclusion that a formal penalty is called for on the ground of conduct which has led to the conviction of the Government servant on a criminal charge

 

 

 

  1. APPEAL CASES

 

(Where the order of penalty has been passed by a subordinate authority and an appeal lies to the President)

 

(In these cases all the documents listed in (A) should also be sent)

  1. Order passed by the Disciplinary Authority together with a note, if any, containing the conclusion arrived at by him in respect of each charge

 
  1. Appeal of the officer concerned

 
  1. Whether appeal has been addressed to the competent authority

 
  1. Comments of the Disciplinary Authority on the Appeal including clarification on procedural points, if any, raised by the Appellant

 

 

  1. REVISION/REVIEW CASES

 

i) Whether Appeal addressed to the

President of India or to some

Subordinate authority.

 

(Where the Appellate Authority is subordinate to the President and a modification of the appellate order is sought by way of Revision/Review or where the President has passed the original order)

(In these cases, all the documents listed in (A) and (C) should also be sent)

ii) Whether the approval of the Competent

Authority obtained before referring the

Case for Commission’s advice.

 

  1. Appellate Authority’s order/ President’s order

 
  1. Petition/Memorial submitted by the officer

 
  1. Note indicating the Reviewing Authority’s findings on the charges, detailing the reasons warranting modification of the penalty already imposed and the extent of such modification

 
  1. Additional comments on the procedural or factual points, if any, raised in petition.

 

 

  1. PENSION CASES

 

(Where the President proposes to withhold or withdraw pension otherwise admissible to the officer as a result of disciplinary proceedings instituted/ deemed to continue in respect of an officer who has retired from service)

 

(In these cases all the documents listed in (A) should also be sent)

  1. Order of the President*, if any, that the disciplinary proceedings should be instituted under the relevant pension rules.

 
  1. Show cause notice issued to the officer indicating precisely the quantum of cut proposed to be made in his pension and the period for which it shall be operative

 
  1. Reply of the officer to the aforesaid notice

 
  1. Comments on factual or procedural points raised by the officer in his reply.

 
  1. Approval of the President to the effect that the pensioner is found guilty of grave misconduct or negligence warranting withholding/ withdrawing of pension and/or gratuity or recovery from a pension or gratuity

 

 

  1. GENERAL

 

  1. Miscellaneous documents regarding evidence such as the exhibits, statements, etc. referred to in (A) to (E) and extracts of relevant Rules, Codes, Manuals, Acts, Judgements etc.

 

*Central Govt. in the case of All India Service Officers.
  1. Information/position of disciplinary proceedings instituted against other co-accused officers.

 

 
  1. Information/ position of action instituted against persons/ officials (other than Government servants) involved in the case, if any

 
  1. Whether complete and up-to-date Confidential Roll of the officer has been enclosed.

 

 
  1. Details of other disciplinary case(s) instituted against the Government servant and the penalty imposed, if any.

 
  1. Present status of pending court cases, if any, along with the next date of hearing.

 

 

 

 

 *Signature……………………………………………

                              Name (in Block letters) of the Officer

         signing this statement….…………………………

                                      Designation……………………………………………

                                     Telephone No……………………………………….

                                      Date:………………………………………….….…….

                                                    

 

 

 

 

 

 

 

 

 

 

*To be signed by an officer not below the rank of CVO/Joint Secretary to the Government of India

 

OM No: 39011/08/2016-Estt(B) Dated: 28/12/2018



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