OUR BANK-MAJOR PENALTY D&A REGULATIONS-6 REGULATION - TopicsExpress



          

OUR BANK-MAJOR PENALTY D&A REGULATIONS-6 REGULATION 6. PROCEDURE FOR IMPOSING MAJOR PENALTIES : 1. No order imposing any of the major penalties specified in clauses (f), (g), (h), (i) and (j) of Regulation 4 shall be made except after an enquiry is held in accordance with this regulation. 2. Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself enquire into, or appoint any other person who is, or has been, a public servant (hereinafter referred to as the inquiring authority) to inquire into the truth thereof. Explanation: When the Disciplinary Authority itself holds the inquiry any reference in sub-regulation (8) to sub- regulation (21) to the inquiring authority shall be construed as a reference to Disciplinary Authority. 3. Where it is proposed to hold an inquiry, the Disciplinary Authority shall, frame definite and distinct charges on the basis of the allegations against the officer employee and the articles of charge, together with a statement of the allegations, list of documents relied on along with copy of such documents and list of witnesses along with copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the officer employee, who shall be required to submit, within such time as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said Authority, a written statement of his defence; Provided that wherever it is not possible to furnish the copies of documents, disciplinary authority shall allow the officer employee inspection of such documents within a time specified in this behalf; 4. On receipt of the written statement of the officer employee, or if no such statement is received within the time specified, an enquiry may be held by the Disciplinary Authority itself, or if it considers it necessary so to do appoint under Sub-regulation (2) an Inquiring Authority for the purpose. Provided that it may not be necessary to hold an enquiry in respect of the articles of charge admitted by the officer employee in his written statement but shall be necessary to record its findings on each such charge. 5. The Disciplinary Authority shall, where it is not the inquiring authority, forward to the inquiring authority : i. a copy of the articles of charges and statements of imputations of misconduct or misbehaviour; ii. a copy of the written statement of defence, if any, submitted by the officer employee; iii. a list of documents by which and list of witnesses by whom the articles of charge are proposed to be substantiated; iv. a copy of statements of the witnesses, if any; v. evidence proving the delivery of the articles of charge under sub-regulation (3); vi. >a copy of the order appointing the presenting officer in terms of sub-regulation (6). 6. Where the Disciplinary Authority itself enquires or appoints an inquiring authority for holding an inquiry, it may, by an order, appoint a public servant to be known as the Presenting Officer to present on its behalf the case in support of the articles of charge. 7. The officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the presenting officer, appointed by the Disciplinary Authority is a legal practitioner or the Disciplinary Authority, having regard to the circumstances of the case so permits. NOTE:The officer employee shall not take the assistance of any other officer employee who has two pending disciplinary cases on hand in which he has to give assistance. 8.[A]The Inquiring Authority shall by notice in writing specify the day on which the officer employee shall appear in person before the inquiring authority. [B]On the date fixed by the Inquiring Authority, the officer employee shall appear before the Inquiring Authority at the time, place and date specified in the notice. [C]The Inquiring Authority shall ask the officer employee whether he pleads guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and obtain the signature of the officer employee concerned thereon. [D]The Inquiring Authority shall return a finding of guilt in respect of those articles of charge to which the officer employee concerned pleads guilty. 9.If the officer employee does not plead guilty, the Inquiring Authority shall adjourn the case to a later date not exceeding 30 days or within such extended time as may be granted by the Inquiring Authority. 10.The Inquiring Authority while adjourning the case as in sub-regulation (9), shall also record by an order that the officer employee may for the purpose of preparing defence:- i] complete inspection of the documents as in the list furnished to him immediately and in any case not exceeding 5 days from the date of such order if he had not done so earlier as provided for in the proviso to sub-regulation (3); ii] submit a list of documents and witnesses, that he wants for the inquiry; iii] give notice within ten days of the order or within such further time not exceeding ten days as the Inquiring Authority may allow for the discovery or production of the documents referred to in item (ii) NOTE: The relevancy of the documents and the examination of the witnesses referred to in item (ii) shall be given by the officer employee concerned. 11.The Inquiring Authority shall, on receipt of the notice for the discovery or production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents, on such date as may be specified. 12.On receipt of the requisition under sub-regulation (11), the authority having the custody or possession of the requisitioned documents, shall arrange to produce the same before the Inquiring Authority on the date, place and time specified in the requisition; Provided that the authority having the custody or possession of requisitioned documents may claim privilege if the production of such documents will be against the public interest or the interest of the bank. In that event, it shall inform the Inquiring Authority accordingly. 13.On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the Disciplinary Authority. The witnesses produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross-examined by or on behalf of the officer employee. The Presenting Officer shall be entitled to re-examine his witnesses on any points on which they have been cross examined, but not on a new matter, without the leave of the Inquiring Authority. The Inquiring Authority may also put such questions to the witnesses as it thinks fit. 14.Before the close of the case, in support of the charges, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the charge sheet or may itself call for new evidence or recall or re-examine any witness. In such case the office employee shall be given opportunity to inspect the documentary evidence before it is taken on record, or to cross-examine a witness, who has been so summoned. The Inquiring Authority may also allow the officer employee to produce new evidence, if it is of the opinion that the production of such evidence, is necessary in the interests of justice. 15.When the case in support of the charges is closed, the officer employee may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally it shall be recorded and the officer employee shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. 16.The evidence on behalf of the officer employee shall then be produced. The officer employee may examine himself in his own behalf, if he so prefers. The witnesses produced by the officer employee shall then be examined by the officer employee and may be cross-examined by the Presenting Officer. The officer employee shall be entitled to re-examine any of his witnesses on any points on which they have been cross-examined, but on any new matter without the leave of the Inquiring Authority. 17.The Inquiring Authority may, after the officer employee closes his evidence, and shall, if the officer employee has not got himself examined generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him. 18.The Inquiring Authority may, after the completion of the production of evidence, hear the Presenting Officer, if any appointed, and the officer employee or permit them to file written briefs of their respective cases within 15 days of the date of completion of the production of evidence, if they so desire. 19.If the officer employee does not submit the written statement of defence referred to in sub-regulation (3) on or before the date specified for the purpose or does not appear in person, or through the assisting officer or otherwise fails or refuses to comply with any of the provisions of these regulations, the inquiring authority may hold the inquiry ex-parte. 20.Whenever any Inquiring Authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another Inquiring Authority which has, and which exercises, such jurisdiction, the Inquiring Authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor, and partly recorded by itself; Provided that if the succeeding Inquiring Authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice it may recall, examine, cross-examine and re-examine any such witnesses as herein before provided. 21.On the conclusion of the inquiry, the Inquiring Authority shall prepare a report which shall contain the following: A] gist of the articles of charge and the statement of imputations of misconduct or misbehaviour; B] gist of the defence of the officer employee in respect of each article of charge; C]an assessment of the evidence in respect of each article of charge; D]the findings on each article of charge and the reasons therefor. Explanation - If, in the opinion of the Inquiring Authority, the proceedings of the inquiry establish any article of charge different from the original article of charge, it may record its findings on such article of charge; Provided that the findings on such article of charge shall not be recorded unless the officer employee has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. The Inquiring Authority, where it is not itself the Disciplinary Authority, shall forward to the Disciplinary Authority the records of inquiry which shall include - a. the report of the inquiry prepared by it under clause (i); b. the written statement of defence, if any, submitted by the officer employee referred to in sub-regulation (15); c. the oral and documentary evidence produced in the course of the inquiry; d. written briefs referred to in sub-regulation (18), if any; and e. the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry. 7.ACTION ON INQUIRY REPORT 1. The Disciplinary Authority, if it is not itself the Inquiring Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be. 2. The Disciplinary Authority shall, if it disagrees with the findings of the Inquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose. 3. If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in regulation 4 should be imposed on the officer employee it shall, notwithstanding anything contained in regulation 8, make an order imposing such penalty. 4. If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned. I WILL DISCUSS SOME CASE LAW WHERE IT HAS BEEN EMPHASISED TO OBSERVE PROCEDURE ARR DESHPANDE V. UNION OF INDIA SLR 1971 DELHI 776 It is , no doubt , true that a departmental enquiry is neither a criminal trial for the imposition of a punishment nor a proceeding in a court of law ” HENCE 1.Provisions of IPC , not applicable ( A . K . Vyas v . State ILR 1961 RAJ 1419 ) 2.Provision of Evidence Act not applicable ( Union of India V . T . R . Verma AIR 1957 SC 882 ) 3.CrPC NOT APPLICABLE ( Giasuddin Ahmed v . Union of India 1987 , 3 ATC 41 ). Conduct Regulations 4 to 23 Specify acts which an officer must abstain / observe . All other acts have to be classified in either of the sub-clauses in regulation 3 to be read with regulation 24 of the Conduct Regulations UNION OF INDIA V . T . R . VERMA AIR 1957 SC 882 “ This law requires that such tribunals should observe rules of natural justice in the conduct of enquiry and , if they do so , their decision is not liable to be impeached on the ground that procedure followed was not in accordance with that which obtains in a court of law ” J . M . AJMANI V . UNION OF INDIA SLR 1967 SC 471. “The department proceedings should be strictly in accordance with the prescribed rules .” J .R . Raghupati V . State of AP1988 4 SCC 364 Para 8,on administrative order. Vineeta Prasad V . Vice Chahcellor Patna Univ . Lab IC 881 HC observed that where there is a defined procedure , even without statutory forces it must be scrupulously observed and non-observance results in rendering the act being violative of Art .14 of constitution . D.S. Nadkarni V . S . E . Sukhanter 1974 Lab IC 503 ( B . R . Patel case 1961 OCJ appeal No. 23 of 1960 decided on 10/8/61 ) “ Since the circular affected the conditions of service of all employee serving in connection with the affairs of the state could be regarded as rules ” FAIR PROCEDURE Anil Kumar V . Presiding officer AIR 1985 SC 1121 It is well settled that a disciplinary inquiry has to be a quasi judicial inquiry to be held according to the principal of natural justice and IO has a duty to act judiciously. The protection afforded against arbitrary dismissal / removal / reduction in rank has termed as , doctrine of reasonable opportunity ( Union of India V . Babu ram Upadhyaya AIR 1961 SC 751 ). [See cases of G .Gabriel and Maneka Gandhi also for further clarification and elaborate details] . IN KHEM CHAND V . UNION OF INDIA AIR 1958 SC 300 The term reasonable opportunity denotes a fair and impartial enquiry to unable the charged officer to deny the guilt and to establish the innocence . The inquiry is held by an authority which is not biased against the employee ( Mohd . Nooh case ) BIAS ON ACCOUNT OF PERSONAL INTEREST MANAK LAL V . DR . SINGHVI AIR 1957 SC 425 “ It is well settled that every member of a tribunal that is called upon to try issues in judicial or quasi judicial proceedings must be able to act judicially and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially , objectively and without any bias . In such cases, the test is not whether in fact a bias has affected the judgement , the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of a tribunal might have operated against him in the final decision of the tribunal . It is in the sense that it is often said that justice must not only be done but must also appear to have been done . S . PARTHASARTHY V . STATE OF A . P. AIR 1973 SC 2701 “ If a reasonable man would think on the basis of existing circumstance that he is likely to be prejudiced , that is sufficient to quash the decion. OWN EVIDENCE OF E . O. In Ashutosh Dass V . State of W . B. AIR 1956 CAL 278 it was held that in a departmental enquiry , the Eo can not rely on his own evidence . This is contrary to the rules of natural justice . An Eo cannot bre both judge and witness . In deciding if the explanation given by the delinquent against the charges has been substantiated or not , he at any rate cannot import his own knowledge. In Rampad Nath V . Union of India (1981) 2 SERV LR 751 the disciplinary Authority was a member of fact finding mission has given the chargesheet and imposed the penalty . The bias was held to have been established and the punishment was quashed . In a departmental enquiry , it is not desirable that the officer who is himself a complainant / principal witness should also be judge and the final authority to decide of punishment ( Madhi Ram Bansi Lal V. DFO Nabha AIR 1955 Pepsu 172). Where the Eo has expressed his opinion on a charge before completion of cross examination of certain witness and the examination of other witnesses, it was held that the civil servant was justified in saying that the was not given a reasonable opportunity to defend himself ( Ramesh Chander Verma V. R . Verma AIR 1958 ALL 532). In Subba Rao V . State of Hyderabad AIR 1957 AP414 , it was laid down : It is a fundamental principal of justice that the officer selected to make an enquiry should be a person of open mind and not one who is either biased against the person against whom action is sought to be taken or one who has prejudiced the issues . If this fundamental principal is not followed in selecting a person to make an enquiry officer , the enquiry would be a farce and could not be said in any sense of the terms be said to give a reasonable opportunity to the officer concerned to defend himself . JUDGING ONE’S OWN CAUSE – REAL LIKELIHOOD OF BIAS :- A person who has conducted a preliminary inquiry and found a prima facie case for regular inquiry , will not be permitted to conduct the regular inquiry because he has already in some way formed an opinion in the case , or where an administrative superior has expressed definite views on the conduct of the delinquent he will not be permitted to held the inquiry for he has already prejudged the issue . The relevant cases are : 1.Subba Rao V. State of Hyderabad AIR 1957 AP 414 1957 Andh LT 155. 2.Suryanarayana V. State of AP (1967) 2AND WR 253. 3.P . Sreemulu V. State AIR 1970 AP 114, 116. The ratio of the later set cases suffered a jolt in Sunil Kumar V . State of W. B. (1980) 3SCC 304 AIR 1980 SC 1170. In this case preliminary inquiry was conducted by the same officer who drafted the charges at a later stage . He had opined earlier that there were materials for holding the inquiry . The supreme court refused to treat this as a dent in the procedure , the prosecutor being a judge. . However another opinion on this case is as under : In the instant case the Inquiry officer did not merely frame the charges against the petitioner but he did something more than that : He really advised that on the basis of the materials against the appellant it was a fit case for holding the inquiry . Thus he became associated with the whole idea of initing the inquiry against him and his commitment with the result of the real likelihood of bias in view of a reasonable man been applied , it would have been for conducting the enquiry . Than is no dearth of officers for conducting the enquiry . Then why the government should not appoint a completely fresh mind to hold the enquiry . 6.5 ( iii ) Arjun Chaubey V. Union of India 1984 I LLJ 17 No person can be a judge in his own cause and no witness can certify that his own testimony is true . Any one who has a personal stake in the enquiry must keep himself allof . 6.5 ( iii ) Mohan Chandran V. Union of India 1986 II LLN 257 A Witness cannot be the enquiry officer or the disciplinary authority . PROCEDURE FOR MAILING REPRESENTATION Since appointment of Io is inter-iocutary nature normally no appeals lies against such order however a representation containing full facts and the material on which Co relies should be sent to revisionary authority copies of the representation should be sent to disciplinary Authority and Io. STAY OF PROCEEDINGS In Gajendera Pal Sharma V. Union of India (GA-1005/86 dated 3/1/92), the principal bench observed: “ To our mind the applicant having expreeed his grouse against the Io it would have been proper if the Io waited for the directions of the concerned authorities (para 6) . As such wherever a representation against Io is made on account of BIAS, the proceedings should be stayed.” Regulations 6.3 ( for major penalty) Where it is proposed to held an enquiry the disciplinary authority shall frame definite and distinct charge on the basis of the allegation aginst the officer employee and the article of charges together with a statement of the allegation on which they are based shall be communicated in writing to the officer employee who shall be required to submit within such time as may be specified by the disciplinary authority ( not exceeding 15 days ) or within such extended time as may be granted by the said authority , a writeen statement of his defence. Definite and Distinct Charges. VAGUE CHARGE It differ from case to case. State of Bombay V Atma Ram Sridhar Vaidya AIR 1951 SC 1951. The supreme Court has defined the concept of vagueness “What is meant by vague Vague can be considered antonym of definite , if the ground is incapable of being understood or defined with insufficient certainity , it can be called vague. It is not possible to State affirmatively more on the question of what is vague”. A vague charge will lack material particulars such as full particular in regard to date , time, person , place and matter of occurrence . An immediate reference should be made to Disciplinary Authority about the vague charges. STATEMENT OF ALLEGATIONS CANNOT BE VAGUE SURATH CHANDER CHAKRAVERTY V STATE OF WEST BENGAL AIR 1971 SC 752 “The whole object of furnishing the statement of allegations is to give all the necessary particulars and details which would satisfy the requirement of giving a reasonable opportunity to put up defense. JAGDISH PRASAD SAXENA V STATE OF MP AIR 1961 SC 1070 Supreme Court observed : “ The dept enquiry is not an empty formality it is a serious proceeding intended to give the officer concerned a chance to meet the charge and to to prove his innocence ”. Again in Surath Chander V State of west Bengal AIR 1971 SC 752. The charge sheet should contain full particular of the charge leveled . The allegations are concrete and specific and nothing is left which the Co should know to make a defense. MOTI RAM DEKA V NEF RAILWAY AIR 1964 SC 600 PARA 28 ON page 611 SC “In regard to honest , straight forward and efficient permanent civil servants it is of utmost importance even from the point of view of the State that they should enjoy a sense of security which alone can make them independent and truly efficient” FALSE COMPLAINT PARA 8 of the resolution setting up the CVC , the commission will take the initiative in prosecuting persons who are found to have made flaes complainst of corruption or lack of integrity against public servants.
Posted on: Sun, 14 Dec 2014 06:39:35 +0000

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