Common mistakes in dar
Download as PPT, PDF1 like928 views
The document discusses various aspects that must be followed regarding charge sheets in departmental disciplinary proceedings against government employees. Some key points include: - The charge sheet must be clear, precise and contain full particulars of the alleged misconduct. - It must be issued by the competent disciplinary authority and served properly to the charged officer. - Amendments to the charge sheet are allowed before the inquiry begins but major changes require a fresh charge sheet. - The charge sheet and entire proceedings must be conducted carefully and in accordance with rules to avoid mistakes with serious consequences.
Common mistakes in dar
- 2. The charge-sheet must be clear, concise and contain full particularity. The charges must be precise, definite, and convey to the CO the exact nature of the alleged misconduct so that he can put up an effective defence. A vague statement of charges which does not unfold the exact nature and particulars of the misconduct is of no use and vitiates the entire proceedings.
- 3. The charge sheet must not be vague. The allegations should be concrete and specific with full particularity and should not leave out any thing which the CO should know to make out his defence - S.S.C.Chakravorty V State of West Bengal 1971 SC
- 4. • The charge sheet key to DA proceedings. • It must have 3 basic aspects • Substance, Clarity and unambiguity about • the specific charge supported by the • documents and or witnesses. • Signed by the competent authority • It must be communicated and served • according to the rules prescribed.
- 5. The issue of charge sheet is is an essential requirement. The employee must be told what are the charges leveled against him and the allegations on which they are based. He must also be told of the evidence on which the charges are sought to be established so that he can put forward his defence. Kermchand V/S Union of India, 1958 SC.
- 6. However, the charge sheet is a matter of substance and not of form. Where full particulars were communicated through the memos, the SC did not accept the contention that no formal charge sheet had been issued. “There is no magic in the work charge sheet” - the court observed- K.C.Tandon V/S Union of India 1974 SC.
- 7. The charge sheet must be issued in writing. A hasty verbal reading of the charge sheet does not constitute service of the charge sheet -K.S.Tiwary V/S G.M. High Explosive Factroy1988 ATC. It is no doubt true that the protection of Article 311(1) does not cover the mere issue of charge sheet but it does not mean that a charge sheet can be issued by any authority. It can only be issued by the DA itself or any authority so authorized by statutory rules.- V/State of V/s S.Singh 1970 SCC. Where there are no rules it can be issued by controlling authority- 1993 SC
- 8. The reason is that an attempt to serve the employee by this method is more reasonable and if he chooses to refuse service, the risk must be his and he must pay for the consequences. The principles applicable to the service of summons by the Court are entirely different and are not applicable to the departmental inquiries.- J.Sekhri V/S Union of India 1975- Guwhati However, “left without address” or that he was not found on repeated visits and also not disclosed where he has gone, do not conclusively establish that he deliberately or knowingly did not accept the official communication. Therefore, there is no presumption of service in such cases.- Tyagi- V/S Union of India 1994 SC
- 9. NO objection to the issue of corrigendum or an amendment subsequent to the subsequent to the issue but should issue before regular hearing begins. Amendment should be minor, like, some omission of a clerical nature, adding deleting from the list of documents or list of witnesses. If otherwise, either a fresh charge sheet in substitution of the earlier one should issue or he may be booked for the additional charge separately.
- 10. The charge sheet can be issued by the competent DA or by any other authority empowered by rules to do so.- State of MP V/S Shrdul Singh 1970 SC. The charge sheet has to be delivered in either in person or registered post. Mere communication is not sufficient.- Union of India V/S D.Karekar 1998 SC. Service of the letter is complete even if the CO omits or receive the letter sent to him by the Registered post- N.K.Jain V/S U.O.I. 1988 ATC.
- 11. It is important that either the order of notice is served on the employee in person or sent through registered post or some procedure prescribed in the rules is adopted. Any other mode of intimation should not be adopted without deliberate decision to do so because it may involve legal complication relating to personal rights.
- 12. It is permissible to issue a fresh charge sheet in substitution of the earlier one with substantially the same contents. The 2nd charge sheet is tenable only if the earlier charges were not a adjudicated upon. - H.Singh V/S UOI1987 ATC. However two precautions are to be taken namely.- The fresh charge sheet is issued before the inquiry into the earlier charge sheet starts- R.Rom V/S UOI 1987 ATC The earlier charge sheet is not dropped or cancelled Parmar V/S UOI GBCB 1987.
- 13. But if the charge sheet is simply withdrawn, there is no objection in issue of a fresh charge sheet on the same subject. The reason is that the meaning of the word ‘withdrawal’ is ‘to take back’, ‘to recall’ hence, there is no infirmity in the issue of fresh charge sheet- H.Singh V/S U.O.I. ATC. Where a charge sheet is issued by an authority not competent to do so, it may be withdrawn and a fresh one may be issued in substitution, over the signature of proper authority. But it must be issued either before the inquiry begins or fresh evidence should be recorded thereafter Sharma V CMA 1987 P Bench.
- 14. •Precise substantive and well supported by documents/witnesses charge sheet is the key. •Minor Amendment possible before RH. •Major changes will require a fresh Charge sheet, which can be issued either before the RH or else fresh hearing to be recorded thereafter. •Delay in the issue may be vitiate the proceedings •Competent authority need to sign the charge sheet. •Proper service either personally or by registered post with AD or as per prescribed procedure.
- 15. Although the DA rules do not prescribe any time limit for the issue of a charge sheet against a serving employee the trend in judicial thinking is that an inordinate delay in the process vitiate the proceedings- State of MP V/S Bani Singh 1990 SC.
- 17. • Some of the consequences can be: • Embarrassment for the administration before the court. • Embarrassment before the C.V.C. The case gets included in the report of the Commission to the Parliament. • An otherwise good case may be lost due to mistake giving unintended reprieve to the CO leading to loss of face.
- 18. • Charge sheet. • Inquiry, where necessary. • Consideration of IO’s Report, defence of the CO and orders of the Disciplinary Authority. • Appeal and or Revision.
- 19. • Mistakes in DAR occur despite plethora of instruction s and frequent training either due to ignorance of rules or for lack of application of mind. • Mistakes in DAR are avoidable • DAR is a serious matter • Mistakes in DAR have serious consequences.
- 20. • A mistake may cause undue harassment to a Government Servant such as : • He may lose his promotion or it may be delayed. • He may suffer monetary loss. • He may suffer mental and social agony. • Thus the Administration’s image suffers. Hence mistakes must be avoided, while dealing with DAR cases. • DAR cases must, therefore, be dealt with serious application of mind.
- 21. • Vigilance officer acting as PO • Charged Officer • Inquiry Officer • Disciplinary Authority. • Appellate or Reversionary Authority.
- 22. • Mistakes occur due to various interactions between the key players at different stages of DAR proceedings. • It is necessary to know the rules and their correct interpretation. • DA proceedings being quasi- judicial, rules must be followed. • Natural justice although the cardinal principle but often severely abused.
- 23. • In the Chargesheet • In the Inquiry • In the examination of the IO’s Report • In the orders of the DA. • In the orders of Appellate or Revisionary Authority.
- 24. • It is vague, not clear, not precise, lacking in substance & details and factually incorrect. • Too many articles and at times omitting some major ones. They are not based on documentary evidence. There should be one charge for one misconduct. • RUDs are not specifically connected to the articles of charge in the Imputation. Large numbers of RUDs included many of them not even relevant. Full file made as RUD, when only one letter is relevant.
- 25. • Use of non-standard term or title as heading for the RUD. If this is not properly connected in the statement of imputation, this can cause great confusion later on, when the case goes to UPSC. • List of witness is not given. If the statement of a person recorded during investigation is to be used in the charge sheet, it is essential to name him as prosecution witness in annexure IV
- 26. • Issuing the draft charge sheet without proper check/verification. • Modifying a charge sheet issued by the President without consulting the Board. • Not signed by the competent authority or signed by a co-accused. It may not by DA but must be issued and expressed in his name. It must be signed by the authority in his own name over his own stamp. • It is not essential to sign each annexure, although it is desirable.
- 27. • The charge sheet modified incorrectly. A fresh charge sheet can be issued by withdrawing old one with endorsement that it is being withdrawn without prejudice to its right to issue a new one provided the old one has not been adjudicated, cancelled or dropped. • Small clerical errors can however be corrected during the course of inquiry. • Charge sheet is key to DAR. Hence due care must be taken for its preparation
- 28. • Chargesheet not served properly. Acknowledgement not obtained. Without proper service DAR can not proceed. • Personal service is the most preferred form. If CO refuses, the fact may be recorded. No witness is normally needed but may be had. • Otherwise, it may be sent by registered post with AD. Refusal to receive is considered deemed delivery but ‘addressee not found’ can not be considered a legal service.
- 29. • In case of absconding CO, the Charge sheet may be sent to all known addresses and keep endorsement of the Post Office on the cover as record. A copy may also be pasted on the notice board and at his known residence. • In such cases, action may be taken either exparte or under 14(ii) of DAR. • Allowing additional documents to CO for his defence by the DA.
- 30. • Giving undue time for defence reply to CO. • Allowing inspection of documents for minor penalty in all cases. This can be done only where inquiry is prescribed. • Allowing additional documents to CO for his defence by the DA.
- 31. • When no defence has been received even after reminder, the fact to be recorded, before remitting the case to inquiry. • Remitting the case to inquiry by DA without considering CO’s defence. Reasons to be recorded by the DA. ‘After careful consideration of the CO’s representation, it is considered necessary to bring out the facts through inquiry. The case is accordingly remitted to inquiry.’
- 32. • Dropping the charge or imposing minor penalty in case of Major charge sheet after consideration of defence without consulting C.V.C., where its ist stage advice was taken. • Appointment of IO/PO, before remitting the case to inquiry. • Instead of waiting endlessly for CO’s reply it is much safer to remit the case to inquiry. There is no breach of natural justice in such cases.
- 33. • Appointment of IO/PO without consulting Vigilance for nomination. In C.V.C. advised case, this is very important. • Appointment order not signed by the DA. Following documents to be given to I.O.by DA * Charge sheet with all annexures. * Written defence, if submitted by CO. * Evidence providing delivery of the Charge Sheet to the CO. * Copy of order appointing the PO
- 34. • Documents not supplied, as required by CO and allowed by IO. • Not sparing key witness or defence Assistant. • Not replying to IO particularly when charge of bias against IO has been leveled. • Staying DA proceedings due to Court case without proper ground or examination. They need not be adjourned or stayed: • On receipt of notice under section 80 CPC • On receipt of intimation of filing a writ petition.
- 35. • On receipt of mere show cause notice from Court asking: • Why petition should not be admitted. • Why proceedings should not be stayed. • Why the writ/order should not be issued. • It should be stayed if competent Court issues injunction or clear stay order. • No disciplinary proceedings should be started subsequent to initiation of court case, if they deter or intimidate the CO from proceeding with court case.
- 36. • Section 19(4) of CAT cannot be construed to automatically stay DA proceedings on admission of the original application of CO by the CAT. • For stay or injunction specific orders under section 24 of CAT will have to be issued by following prescribed procedures. • Undue delay in inquiry. No monitoring done. • Inquiry must be based on prescribed procedures. It must be ensured.
- 37. • Dy.CPO(G) should examine the report immediately after it is received for the following: • All RUDs mentioned in the report are available with the PO in original. • Deposition of witnesses. • Delay order sheet • CO’s and PO’s brief in original.
- 38. • Mandatory examination of CO by IO under rule 9 (21) on circumstances of the case appearing against him, in case, he has not appeared as witness. • Clear cut finding has been given. • IO’s report in five copies. •If necessary, IO may be asked to fulfill the deficiencies, if any.
- 39. • IO’s report sent to CO for his representation without obtaining 2nd stage advice of CVC • IO’s report put up to DA, who records his findings or even communicates to CO without consulting CVC. • Asking IO to modify his report by sending his disagreement memo. • Sending the report without vigilance and tentative comments of DA to the Board.
- 40. • Modifying CVC advice (II stage), while issuing disagreement memo to the CO • Passing final orders without considering the representation of the CO • Pass final orders in variance with the CVC advice. • Communicate provisional orders to the CO in case of disagreement with CVC advice. • Sending case to UPSC, in case of retired staff without complying with the laid down UPSC proforma or actual verification.
- 41. • Not giving grounds for disagreeing with IO’s findings to the CO, while calling for his defence. This must relate to the facts of the case and not beyond. The disagreement not in line with II stage advice of CVC • Not giving grounds for differing with CVC advice in provisional orders. Again this must’ relate to the facts of the case and not beyond. • Mention of CVC advice in the speaking orders.
- 42. Not verifying his competency to impose the penalty. Not verifying actual penalty imposed- major or minor. Imposing any Administrative action like counseling etc after DAR action. Not obtaining and sending acknowledgement of NIP by CO to the Board Not informing CBI about NIP in CBI case. This has to be done by the Vigilance
- 43. • Not routing the file through Vigilance, in case of NGO particularly, when the DAR case is a composite one started on CVC advice. • Passing orders in appeal or revision to modify orders in variance with CVC advice. • In composite case, consultation with CVC is mandatory.
- 44. • In case of non-CVC case, concerning NGO, passing orders in variance with Vigilance advice - Only in Major penalty cases • In minor penalty case, concerning NGO, not sending a copy of NIP to Vigilance. No consultation with Vigilance is necessary even in case action proposed is in variance with the advice of Vigilance.