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Procedure for Disciplinary Cases for Imposing Minor Penalties
Where the charge sheet is issued under procedure for minor penalties, an oral inquiry is not compulsory, but may still be ordered, if the issues warrant and so decided by the disciplinary authority. But in any case where the disciplinary authority proceeds to award the penalty after issue of the charge sheet without conducting a regular inquiry, he can only award the delinquent officer a minor penalty. If a major penalty is to be inflicted, conducting an oral inquiry is a must.
Essential steps in Inquiry Procedure for Awarding Minor Penalty
Issue of charge sheet under minor penalty procedure.>
The charge sheet will contain only a statement of imputations without any articles of charge
- It will be specified in the memorandum covering the charge sheet, that the charge sheet is issued quoting the specific DA regulation, which is intended for imposing minor penalty. In respect of CCS(CCA) Rules it is Rule No.16 and Regulation No.8 of PNB DA Regulations.
- Extension of natural justice to the delinquent officer to visit the branch/place, to which the allegations pertain and verify the relevant records for the purpose of submitting his reply. However it is held in judicial decisions, that the delinquent officer is not entitled to principles of natural justice in respect of an inquiry where a minor penalty of "censure" is awarded.
- The expression of the imputations should be clear and easily understandable by the charged officer, on the basis of what material he has been deemed as having committed the alleged misconduct. Normally it will be advisable to enclose a list of documents with the charge sheet, as it would be possible for the delinquent officer to verify these documents at the source, i.e. the branch where the transaction(s) took place. In other words it should be possible for the charged officer in case he denies the allegations, to know the totality of material relied by the disciplinary authority in respect of the allegations leveled against him. Otherwise it will lead to a situation where the delinquent officer is being punished based on undisclosed material. Equally important it is for the delinquent officer to be provided all facilities to seek and discover material relevant for his defence.
- Reasonable time for the delinquent officer, who is not only to deny the charges, but has also to explain his position in totality, as no further inquiry will be conducted thereafter. It will be advisable to allow the delinquent officer 10 to 15 days time for his reply.
- Objective consideration of the reply submitted by the delinquent officer to the charge sheet, after its receipt and
- a speaking order clearly indicating that the reply submitted by the charged officer is properly considered and giving the particulars of misconduct established as per the charge sheet and as per the consideration of the reply of the delinquent officer. The disciplinary authority cannot award a summary a summary punishment stating that the reply of the delinquent officer was considered and found unsatisfactory.
The minor penalties are
- Withholding of increments of pay with or without cumulative effect
- withholding of promotion, and
- Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the employer by negligence or breach of orders
When a Oral Inquiry Should Not be Dispensed With
When any of the major penalties (i.e. reduction, compulsory retirement, removal or dismissal) may have to be awarded, in the fitness of things, if the allegations against the delinquent officer were to be proved.
- When the evidence against delinquent employee can only be established conclusively through oral testimony of management witnesses.
- When the delinquent officer in his written reply to the charge sheet after denying the charges specifically seeks for an oral inquiry with justification. For example he raises pertinent questions seeking supplementary information on the imputations, and keeps his reply partly in reserve and submit list of oral witness to establish his defence. However when a oral inquiry is held, observing strictly the procedure set for conducting a major penalty inquiry, and if the findings so warrant, the disciplinary authority has the option to impose a major penalty, not withstanding the fact that the charge sheet was originally issued under minor penalty procedure.
- In case the disciplinary authority finds that the reply of the delinquent officer is partly or totally satisfactory, he may still decide to proceed with the oral inquiry and allow the delinquent officer to pass through this forum and come out clean and thereafter drop the charges. It is to be reckoned that on oral inquiry is a test and not a punishment.
Relevant guidelines of the CVC for conducting oral inquiry, even when charge sheet under minor penalties is issued, are reproduced as under. References of CCS (CCA) may be read suitably with reference to parallel provisions in DA Regulations of your Bank.
"Under Rule 16(1) (b) of the CCS (CCA) Rules, the disciplinary authority may, if it thinks fit, in the circumstances of any particular case, decide that an inquiry should be held in the manner laid down in sub-rules (3) to (23) of Rule 14 of the CCA Rules. The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or misbehaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. It may be remembered that Rule 16 of CCS(CCA) Rules deal with the procedure for minor penalty-inquiry, whereas Rule 14 of the aforesaid Rules refer to the detailed procedure for major-penalty Inquiries. In a case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to the request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice. In cases in which it is decided to hold an inquiry, all the formalities beginning with the framing of articles of charge, statement of imputation etc, will have to be gone through. The procedure to be followed will be the same as prescribed for an inquiry into a case in which a major penalty is proposed to be imposed. "
When Disciplinary Case under Minor Penalty is advisable
When the gravity of the imputation is not severe and the number of imputation is restricted to one or two. The procedure is more simple, less time consuming, consequently less expensive. It is a disposal of the case entirely at the level of the disciplinary authority, without appointing additionally Inquiry and presenting officers. It calls for limited provision of natural justice. In fact it is held that the employee cannot claim such right, if the punishment awarded is only "censure".
- When the evidence for the imputation is explicit and needs no lengthy arguments in briefs or through oral evidence
The minor penalty provides that the existing benefits accruing to the charged officer are not reduced or withdrawn, and action is taken withdrawing or suspending, if any, only of the benefits to accrue to him at a future point of time, like future increments and future promotions etc. He incurs no immediate loss.
In this context the penalty of censure is deemed as the mildest form of punishment. However generally a charge sheet is never issued for the sole purpose of 'censuring' a public servant. In fact administrative steps like pulling up the public servant for his questionable acts in a review meeting in the presence of his colleagues, or issuing an administrative warning or caution may have better effect than censuring an employee. In fact when the charge sheet is served, the public servant comes to feel the gravity of the situation, but when the disciplinary case is closed with a 'censure', it results in an anti-climax. The public servant and the society of his immediate colleagues feel that the delinquent officer has come out of the ordeal and do not feel that he has been punished. There is no pecuniary loss, and the intended stigma of the 'censure' is not felt.
As earlier stated a justified rebuke or adverse comment on performance made by a competent senior officer in a review meeting in the presence of his colleagues is more effective. It is in fact an interactive process. If the officer concerned is really not at fault, he will muster courage and explain his position. Otherwise he will meekly submit, and if demanded will also give a commitment that he will not only not repeat the mistake, but improve himself to the required standards. The commitments that an employees gives in the presence of a group becomes more binding on him and he develops a moral fear for going against his own undertaking. At least he will not get the spontaneous sympathy or support of his own colleagues, in case he fails again. Periodical review meetings are in fact the best forums to deal with under performers and non-performers. But then what for is censure provided, and when this penalty is to be awarded?
Guidelines of CVC about Issuing Administrative Warning in Place of Censure
In practice informal rebuke or criticism justifiably expressed may have equal or even better effect, in creating the inner urge in the officer to correct himself. In this case the adverse action of the officer has taken place in the current period and the rebuke is administered also instantly. It deals with a current problem with a current solution and does not tarnish the future record of the officer. It is therefore open to the authorities to reward him or approbate him in any manner as warranted without any reservation, if his subsequent performance merits the same. The guidelines of CVC in its Manual in Chapter X relevant in this connection are reproduced.
"An order of censure is a formal act intended to convey that the person concerned has been held guilty of some blame-worthy act or omission for which it has been found necessary to award him a formal punishment. There may be occasions, however, when a superior officer may find it necessary to criticise adversely the work of an officer working under him (e.g. point out negligence, carelessness, lack of thoroughness, delay etc.) or he may call for an explanation for some act or omission and taking all factors into consideration, it may be felt that, while the matter is not serious enough to justify the imposition of the formal punishment of censure, it calls for some formal action, such as, the communication of a written or oral warning, admonition reprimand or caution. Administration of a warning in such circumstances does not amount to a formal punishment. It is an administrative device in the hands of the superior authority for conveying its criticism and disapproval of the work or conduct of the person warned and for making it known to him that he has done something blame-worthy, with a view to enabling him to make an effort to remedy the defect and generally with a view to toning up efficiency and maintaining discipline.
Displeasure of Government (Read Management)- Guidelines of CVC
On occasions, an officer may be found to have committed an irregularity or lapse of a character which though not considered serious enough to warrant action being taken for the imposition of a formal penalty or even for the administration of a warning but the irregularity or lapse is such that it may be considered necessary to convey to the officer concerned the sense of displeasure over it. Such displeasure is usually communicated in the form of a letter and a copy of it may, if so decided, be placed on the character roll of the officer."
Issuing "Caution" or Advice "to be more Careful"
These are administrative devices to formally deal with instances of minor negligence of the officer noticed in the performance of his duties. The concerned officer may take notice of his lapse and follow 'precautions' not to repeat the same again, as in the latter contingency a more stringent view would be taken by the authorities dealing this as a habitual act of negligence. Advising an officer to be more careful in future does imply that he has failed to devote the needful attention to his duty earlier. He should correct himself. When such 'counsel' is given the authority tendering the same, should in the first instance summarise and state briefly the gist of the act of negligence or irregularity committed by the officer, for which he is being 'cautioned' or advised 'to be more careful;. Otherwise tendering such advice/counsel to the officer makes him in no way informed of his minor lapse. Example the employee is served a charge sheet and he submits detailed representation to the disciplinary. Now after 3 months he received an abrupt reply from his immediate boss reading as under:-
"Your representation in reply to the charge sheet has been considered by the disciplinary authority. It has been decided to advise you to be more careful in future" or
"it has been decided to administer you a caution. You are hereby administered a caution".
Such a communication serves no purpose, excepting for treating the disciplinary case as closed. The employee can be sent a communication by his immediate superior. But he must enclose/forward a copy of the original orders of the Disciplinary Authority, which should be always a speaking orders, i.e. supporting the conclusions arrived with cogent reasons.
It is advisable overall that the disciplinary authority expresses statements in his orders from a legal point of view, keeping compassion shown by him, if any, not explicitly conveyed. But it is advisable that the immediate superior of the employee, who is to implement the punishment, at that point bears a more employee-friendly attitude in respect of counseling him and restoring an active confidence in him to improve and regain his lost position. While the disciplinary authority can act as a critical parent, at the lower level, the administrative authority should act as a 'nurturing parent'. If this distinction is applied the effect of the punishment will be positive. There must always be someone in the organization to show extreme care in the progress and advancement of the officer employee. Otherwise the officer employee is led to believe that he is driven to the wall, and he has no scope for securing a better credit and name in the organization.
This is all the more important in respect of cases of purely 'technical lapses' caused on account of negligence or when the officer employee is a victim of circumstances, on account of manipulations/frauds perpetuated on him by others. This also applies to cases of officer employee with good potential in them, but suffer a temporary setback and get themselves involved in disciplinary cases.
Particular care should be taken to approbate and convey objective appreciation on any good work or positive achievement by the officer employee, who recently suffered a punishment. This will serve to soothe his hurt feelings and sense the view that the management is objective, and that he must exert and get good credit through his efforts and avoid pitfalls.
This is a therapeutic approach based on the understanding of human behavioural pattern. The employer should accept that the employee has a mind to think and a heart to feel. Personal management understands this and looks to carrying the 'mind' and winning the 'heart' of the employees, ensuring that the employee becomes motivated with a commitment and loyalty towards the organization, instead of considering himself as a mere human tool to provide service on hire.