HARMONY AN E-MAGAZINE ON CSIR/GOI SERVICE & RELATED ISSUES

HARMONY

AN E-MAGAZINE ON CSIR/GOI SERVICE & RELATED ISSUES

Founder-Editor Ch. Srinivasa Rao

Formerly COA, NGRI, Hyderabad

Vol. XVIII October 2011 No. 201

Compiling, Editing & Publishing

Ch. SriCh. SriCh. SriCh. Srinivasa Rao, Formerly COA, NGRI, Hyderabadnivasa Rao, Formerly COA, NGRI, Hyderabadnivasa Rao, Formerly COA, NGRI, Hyderabadnivasa Rao, Formerly COA, NGRI, Hyderabad

Counselling B.J. Acharyulu, Head, Finance & Accounts, CDFD, HyderabadB.J. Acharyulu, Head, Finance & Accounts, CDFD, HyderabadB.J. Acharyulu, Head, Finance & Accounts, CDFD, HyderabadB.J. Acharyulu, Head, Finance & Accounts, CDFD, Hyderabad

Secretarial assistance D. Shanmuga Sundar, Jr. Steno., NGRI, Hyderabad D. Shanmuga Sundar, Jr. Steno., NGRI, Hyderabad D. Shanmuga Sundar, Jr. Steno., NGRI, Hyderabad D. Shanmuga Sundar, Jr. Steno., NGRI, Hyderabad

---------------------------------------------------------------------------------------------------------------- GoI Orders reproduced in "HARMONY" which are yet get the CSIR endorsement may be applicable to Council employees to a larger extent unless otherwise objected. The opinions expressed or inferences drawn in the material published in “HARMONY” do not necessarily reflect the views of Editor nor CSIR/Swamy Publishers shall take any responsibility whatsoever for any inaccuracies or claims. Material published in “HARMONY” can be used for academic purpose with due acknowledgement. Articles on Service issues, Management, Behavioural attitude and related issues are welcome through E-mail or other means. “HARMONY” is transmitted through E-mail. Send your E-mail i.d. to “[email protected]” Residence: 040-27150736 -- Mobile: 91-9490462583

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CSIR/GOI ORDERS

EXTENSION OF THE TENURE OF SPORTS PROMOTION BOARD

The DG, CSIR has been pleased to extend the tenure of the Members of the

following CSIR Sports Promotion Board up to the end of the 31-3-2012 on the

existing terms and conditions:

Dr. P.G. Rao, Director. NEIST, Jorhat .. President

Dr. D.S. Bedi, Sci. G & Head, USD, CSIR HQs., .. Secretary

Dr. M. Neelamegam, Scientist F, SERC, Chennai .. Member

Dr. R.N. Basu, Scientist F, CGCRI, Kolkata .. Member

Dr. P.K. Singh, Scientist, CIMFR. Dhanhad .. Member

Dr. R. Madhan, Scientist C, NIO, Goa .. Member

Sh. Parag M. Solanki, Sci. C, CSMCRI, Bhavnagar .. Member

Sh. I.P. Singh. Scientist C, CSIR Cx., New Delhi .. Member

Sh. Ravi Saini, Scientist B, CEERI, Pilani .. Member

Further, the Competent Authority has been pleased to nominate Ms. Sushila

Khilnani, Scientist G, HRDG. CSIR HQs. as Member (SPB) vice Dr. Nandini Nagarajan.

Scientist, NGRI who retired from Council Service and Sh. SP Singh, F&AO, CSIR HQs.

as Treasurer (SPB) vice Sh. R.L. Sharma, Sr.DFA who is presently on deputation to

other department.

[CSIR O.M.No.6-9(58)/99-F.Ill (SPB) dt. 24-8-2011]

SELECTION TO POSTS UNDER THE NEW CSIR SCIENTISTS RECRUITMENT RULES

It has been observed that in many cases, prior to the issue of New Rules the

recruitment process takes a long time for one reason or other. Such delay in finalizing

the recruitment and subsequent issue of appointment letters increases the possibility of

losing young and bright candidates.

As such, the DG, CSIR has desired that the following time-frame may be

adopted by the CSIR Labs./Instts. to ensure completion of recruitment process in a

reasonable time:

i) Draft Advertisement, complete in all respects, be forwarded to RAB at least 15

days in advance from the date of publication for vetting

ii) Thirty days time be given from the date of notification of Advertisement to the

prospective candidates for submitting their candidature.

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iii) During the next 30 days, shortlisting be completed and call letters for interview

be issued

iv) By the end of 30 days from the date of notification, interviews for selection be

completed; and

v) By the end of 4th month, Offers of Appointment be issued.

Further, it is advised that while issuing advertisements for the positions of

Scientists in CSIR, it may invariably be mentioned in the advertisement in terms of

Rule 6.1.2 (ii), as notified on 1-6-2011, that the Selection Committee depending upon

the performance of the candidate may choose to place the candidate in any of the

Grade Pay within Pay Band-3 or 4 as the case may be, subject to meeting the

minimum eligibility criterion specified.

In order to give equal opportunities to future young Scientists, new

appointments in a year may be restricted to 5-10% of sanctioned strength of

Scientists.

[CSIR Lr.No.1-5(1)174/2009-RAB dt. 29-8-2011]

TRANSPARENCY OFFICER, CSIR HQS.

Consequent upon transfer of Shri R.P. Sharma, Sr. Dy. Secretary to NISTADS,

the competent authority has approved that Shri R.K. Sharma, Sr. Dy. Secretary

(Central Office) will act as Transparency Officer for CSIR HQs.

[CSIR O.M. No.6-13(3)/2011-E.III dt. 1-9-2011]

SANCTION FOR IN-HOUSE PROJECTS

The DG, CSIR, in consultation with the Financial Adviser, CSIR, has been

pleased to approve that Directors of Labs./Instts. may sanction independent In-house

R&D Projects costing up to Rs.5.00 crores in each case out of Plan Funds allocated

under the Budget Head, P-50: Apparatus & Equipment and P-07: Chemicals &

Consumables. The limit of sanction as above will also apply to projects sanctioned

partly or fully against Lab. Reserve Fund.

The details of projects so sanctioned by the Labs./Instts. required to be sent to

PPD and Budget Section of CSIR HQs. for records and necessary action.

[CSIR Lr.No.30-2(65)/2011-Finance dt. 2-9-2011]

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AADHAR NUMBER AS PROOF OF IDENTITY/ADDRESS

Allocation of the Unique Identification Numbers (Aadhar numbers) is a Govt. of India initiative for providing identity to all residents in India The Unique

Identification Authority of India (UIDAI) is entrusted with the responsibility of issuing

Unique Identification Numbers and, among others, to define usage and applicability

of the Aadhar numbers for delivery of various services.

UIDAI has commenced issue of Aadhaar numbers. Aadhaar can be treated as a valid Proof of Identity (PoI) and Proof of Address (PoA). Following interaction

meeting held with UIDAI and in pursuance of the decisions taken in the meeting of

the Committee of Secretaries held on 21 .12.2010, Ministries/Departments have

initiated action to integrate Aadhaar numbers with Central Govt.

Schemes/Programmes. The Department of Telecommunications and the Ministry of

Finance have already issued necessary instructions that Aadhaar number would serve

as both Pol and PoA for obtaining mobile telephone connections and for opening of

Bank accounts which would facilitate efficient and effective beneficiary identification.

The Director-General & Mission Director, UIDAI has informed that integration

of various Central: Govt. Schemes/Programmes with Aadhar to serve as a platform

for service delivery may take some time. However, in the interregnum, Central,

Ministries/ Departments may consider examining all the Schemes/Programmes being

operated by them and, in accordance with the results of such examination, issue

instructions for recognizing Aadhaar number as a Pol and PoA for various resident-

centric schemes under intimation to UIDAI and this Secretariat.

The Director-General/Mission Director, UIDAI may be contacted in case any

clarifications are required.

[CSIR Lr.No.5-1(37)/2007-PD dt. 9-9-2011; GOI Cabinet Secretary’s

D.O.No.281/1/5/2011-TS dt. 25-4-2011]

DETAILS OF ACCOUNTS OF TRANSFEREES UNDER NEW PENSION SCHEME

CSIR vide its letter dated 31-3-2011 followed by a reminder dated 2-6-2011

requested for the details of Accounts of New Pension Scheme which are being

maintained by all the Labs./Instts. However, many of the Labs./Instts. have not

mentioned the details of Accounts of those employees who had joined from other

Labs./Instts. within the CSIR.

Hence, details of all such employees have to be furnished immediately to CSIR

in the prescribed pro forma latest by 9-9-2011.

[CSIR Lr.No.34-2(5)/CSIR/NPS/2011 dt. 12-9-2011]

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GRANT OF FAMILY PENSION TO CHILDLESS WIDOW OF A

DECEASED CG EMPLOYEE AFTER HER RE-MARRIAGE

As per the provisions of para 8.6 of DOP&PW O.M.No.38/37/08-P&PW(A)

dated 2-9-2008, the childless widow of a deceased Govt. employee shall continue to

be paid family pension even after her remarriage, subject to the condition that the

family pension shall cease once her independent income from all other sources

becomes equal to or higher than the minimum prescribed for family pension in the

Central Govt.

It is hereby clarified that the childless widow of a deceased CG employee who

expired before 1-1-2006, shall be eligible for family pension in the light of 6th CPC's

recommendations irrespective of the fact that the remarriage of the widow had taken

place prior to/on or after 1-1-2006. The financial benefits in such case, however, will

accrue from 1.1.2006, subject to the fulfillment of certain conditions, including the

income criterion.

[CSIR Lr. No. 34-1(11)/CSIR/Pension/2011-12 dt. 14-9-2011; GOI MOPPG&P DOP&PW

O.M. No.1/412011-P&PW(E) dt. 1-4-2011

REVISION OF PENSION/FAMILY PENSION IN R/O PENSIONERS IN RECEIPT OF

COMPULSORY RETIREMENT PENSION AND COMPASSIONATE ALLOWANCE

In accordance with para 4.2 of this GOI MOPP&G DOP&PW O.M.

No.38/37/08-P&PW(A) dated 1-9-2008, the revised pension of pre-2006 pensioners

shall, in no case, be lower than fifty percent of the minimum of the pay in the PB plus

GP corresponding to the pre-revised pay scale from which the pensioner had retired.

In the case of HAG+ and above scales, this will be fifty percent of the minimum of the

revised pay scale.

It was clarified in O.M. No.45/86/97-P&PW(A) dated 25-3-2004 that the

provisions of O.M. dated 17-12-1998 relating to stepping up of pension to 50% of the

minimum of the revised scale of pay as on 1-1-1996 of the post held by the pensioner

at the time of retirement shall not be applicable in case of compulsory retirement

pension and compassionate allowance.

As clarified vide O.M. dated 3-10-2008, it has now been decided that the

benefit of para 4.2 of O.M. dated 1-9-2008 will not be applicable in the case of

revision of pension/family pension in respect of the pensioners who were in receipt of

compulsory retirement pension and compassionate allowance under Rules 40 and 41

of CCS (Pension ) Rules, 1972.


O.M. No.38/37/08-P&PW(A) dt. 22-7-2011; Swamysnews, Sept. 2011, 33-34]

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INCLUSION OF NAMES OF MEMBERS OF FAMILY IN THE PPO

The undersigned is directed to refer to DOP&PW O.M. No.1/6/2008-P&PW(E)

dated 22-6-2010 and No.1/21/91-P&PW(E), dated 20-1-1993, regarding intimation of

names of eligible family members by the pensioner or the spouse to the Head of

Office for inclusion in the Pension Payment Order (PPO).

It has been clarified in the GOI MOPPG&P DOPW O.M No.1/6/2008-

P&PW(E) dated 22-6-2010 that in cases where the pensioner or his/her spouse

expired, the widowed or divorced or unmarried daughter/parents/dependent

disabled children/disabled siblings can themselves intimate such details to the pension

sanctioning authority, who can process such cases, if sufficient proof of entitlement is

produced by the claimant and all other conditions for grant of family pension are

fulfilled.

Vide O.M. No. 38/37/08-P&PW(A) dated 21-5-2009, instructions regarding

admissibility of documents as proof of date of birth of very old family pensioner who

neither have a birth certificate nor any other corroborating document and whose date

of birth is not available in the PPOs as well as in the Office records of CPAO/PAO

have been explained.

It is hereby reiterated that documents indicated in para 5 of O.M., dated 21-5-

2009 may be relied upon by the Heads of Office for admitting claims of the family

pensioners. In addition to these, the Aadhaar number issued by Unique

Identification Authority of India (UIDAI) may also be accepted by the Heads of

Office/Pension Disbursing Authorities as valid proof of identity. It is also emphasized

that the date of birth of the applicant may also be ascertained at the time of

sanctioning family pension as it may be required for deciding the quantum of

additional family pension when the family pensioner attains the age of 80 years or

above.

In case the applicant is unable to submit any of the documents indicated above

but claims family pension based on some other documentary evidence, such cases

may be submitted to the administrative Ministry/Department for a decision.

Requests have also been received for inclusion of the name of dependent

disabled child/children in the PPO during the life-time of the pensioner. It is hereby

clarified that neither dependence nor disability are bound to be permanent in nature.

Therefore, the name(s) of such child/children may be included in the details of family

by the Head of Office on receiving a request from the pensioner or his/her spouse.

However, family pension would be sanctioned only when their turn comes to receive

the family pension on the demise of the pensioner/family pensioner, after examining

the claim(s) of such disabled children for family pension, subject to the fulfilment of

conditions stipulated in the relevant provisions of CCS (Pension) Rules, 1972.


O.M. No.1/19/11-P&PW(E) dt. 3-8-2011; Swamysnews, Sept. 2011, 34-35]

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GRANT OF FAMILY PENSION TO DEPENDENT PARENTS

OF A DECEASED GOVT. EMPLOYEE

Attention to GOI MOPPG&P DOP&PW O.M.No.45/86/97-P&PW(A)-Pt.1

dated 27-10-1997, whereby the definition of family for the purpose of grant of family

pension was extended to include, inter alia, "parents who were wholly dependent on

the Govt. servant when he/she was alive provided the deceased employee had left

behind neither a widow nor a child".

It has been observed that the above point is being interpreted to mean that

parents are eligible for family pension when the deceased employee is survived by

them only. In case the deceased employee is survived by a widow and/or one or

more children, the parents are not considered eligible to receive family pension

subsequent to such widow and/or children becoming ineligible to receive family

pension or ceasing to survive.

It is clarified that in case the deceased GS is not survived by a widow/widower

or a child, the dependent parents become directly eligible to receive family pension.

In cases where a deceased GS is survived by a widow/widower or a child, and the

position changes subsequently because of death or re-marriage of the spouse and/or

death or ineligibility of child/children, including a disabled child, the dependent

parents become eligible for family pension.

However, in terms of O.M.No.38/37/08-P&PW(A) dated 2-9-1908, a childless

widow, subject to dependency criteria, is entitled to the family pension even after her

re-marriage. In such an event, the parents of the deceased employee become entitled

to the family pension only after the childless widow dies or when her independent

income from all other sources becomes equal to or higher than that prescribed for

dependency criterion under the Rules.


O.M. No.1/2/07-P&PW(E) dt. 2-9-2011]

ECONOMY MEASURES AND RATIONALIZATION OF EXPENDITURE

The economy measures as outlined in GOI MOF O.M.No.7(1)/E.Co-ord./2001

dt. 11-7-2011 have been extended to Autonomous Bodies funded by GoI also

[GOI MOF O.M.No.7(1)/E.Co-ord./2001 dt. 2-8-2011; Swamysnews, Sept. 2011, 4]

EXTENSION OF RISK ALLOWANCE

It has been decided that Risk Allowance may be continued for a further period

of six months up to 31-12-2011 or till such time Risk Insurance Scheme is implemented

whichever is earlier.

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[GOI DOPT O.M.No.21012/01/2008-Estt.(Allowance) dt. 19-7-2011; Swamysnews,

Sept. 2011, 32-33]

CONSIDERATION OF PERSONS WITH DISABILITIES FOR PROMOTION

AGAINST UNRESERVED VACANCIES

Attention is invited to Para 6 of DOPT O.M.No.36035/3/2004-Estt.(Res.)

dated 29-12-2005 which provides that a person with disability cannot be denied the

right to compete for appointment against an unreserved vacancy in a post identified

suitable for persons with disability of the relevant category.

It is hereby clarified that if promotions are made to Gr. A or Gr. B post, which

is identified suitable for persons with disability of a specific category, the persons with

disability of relevant category in feeder grade, if any, shall be considered for

promotion to the post by applying the same criterion as applicable to other persons.

[GOI DOPT O.M.No.36035/4/2010-Estt.(Res.) dt. 1-8-2011; Swamysnews, Sept. 2011,

37]

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CASE LAWS

Mere reproduction of Case Laws in the columns of “HARMONY”

cannot be construed to be applicable to CSIR/GOI employees. The

inferences drawn and the decisions made by the Hon’ble Courts may

largely vary in each individual case. The decisions are expected to

provide the aggrieved, some idea about the trends of Hon’ble Courts.

WITHDRAWAL OF NON-PRECTISING ALLOWANCE AFTER RETIREMENT

Drawal of Non-Practising Allowance (NPS) by Veterinary Doctors can be

effected only if they had registered with the Veterinary Council of India. The question

for consideration is whether the Applicant is eligible to get NPA from late 1980 when

he had not registered himself with veterinary Council and whether the recovery of

NPA paid to him can be recovered after his retirement?

The Respondents asked the Applicant to produce the Registration Certificate

issued by Veterinary Council by which time he had already retired. Even though he

got him registered after retirement with the Veterinary Council, he was asked to

return the NPA drawn by him from the start of payment of NPA. Hence, it was held:

“It is now well settled that Courts can use their judicial discretion to interfere in cases

of recovery when the excess payment is not on account of misrepresentation, fraud or

collusion.”

The recovery of NPA paid to him is not justified after retirement. The

Applicant is singled out in the recovery of NPA when others who were paid NPA

without following rules are left out. Even those with B.V.Sc. and A.H. degree holders

were not asked to refund the NPA. Those who were not registered with Veterinary

Council were also paid NPA. Hence, the recovery of NPA paid to the Applicant

based on the O.M. dated 30-8-2008 is not permissible.

In view of the above, recovery of NPA from the Applicant is legally

impermissible and hence the Impugned Order for recovery is quashed.

[Swamysnews, Sept. 2011, 66-68]

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RESERVATION UNDER PERSONS WITH DISABILITIES (EQUAL OPPORTUNITIES,

PROTECTION OF RIGHTS AND FULL PARTICIPATION) ACT, 1995

When the Disabilities Act came into force in the year 1996, it was the duty of

the concerned authority to identify roster point immediately and thereafter proceed

to fill such vacancies from each of such category, which course of action if not

undertaken till date is not a justifiable reason by the Respondents. Here is a case in

which the department had initiated selection process without identifying posts

reserved for persons suffering from hearing impaired, blind, locomotor disability,

cerebral palsy, identified for each disability.

In the result, it was held that the Respondents failed to adhere to the Disability

Act, 1995, a statutory provision, thereby disregarded their legal duties. Hence, the

Respondents are required to identify post and roster point for each disability in the

roster to be maintained for the zone for the concerned posts before undertaking

recruitment by any of the mode of recruitment provided under statutory recruitment

rules and thereafter regulate the selection concerned.

The Respondents are directed to take action in three months’ time from the

date of receipt of order


POSTING OF OFFICERS TO A PLACE OF THEIR CHOICE ON COMPLETION OF

TENURE OF POSTING IN N.E. REGION

Posting of the Applicant at his choice station despite the fact that by serving in

North-East Region, the Applicant gained a right of consideration for posting to station

of his choice. As such, the present case is squarely covered by the decision of the

Tribunal rendered in an earlier case. The Tribunal held that by serving in N.E. Region,

the Applicant gained right of consideration for posting of his choice.

Hence, the Respondents are directed to accommodate the Applicant at the

place of his choice within four months from the date of receipt of Order.

[Swamysnews, Sept. 2011, 79]

REDUCING THE PAY AND STATUS OF AN EMPLOYEE PERMANENTLY

AS A PUNISHMENT FOR ABSENTEESM

The Applicant though submitted his leave application periodically did not care

to ensure that it reached the right quarters and leave sought for was granted and thus

absented himself unauthorisedly. There was no misdemeanour or perpetration of

falsity or any other serious misconduct on the part of the Applicant. When he was

left with 10 years of service, reducing him to a lower grade permanently was

shockingly disproportionate to the misconduct which was technical in nature.

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In view of the above, the impugned punishment orders were set aside and the

matter is referred back to Disciplinary Authority with a direction to impose suitable

lower penalty other than penalty provided under the rules. The Applicant is entitled

to all consequential benefits. The order should be complied in three months’ time.


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NEWS & VIEWS

The September issue of “HARMONY” has been very informative, as of course,

all other issues. Thank you very much.

- Dr KGK Warrier

Scientist 'G' (Chief Scientist), CSIR-NIIST, Trivandrum

“HARMONY” fulfills an acutely felt need. Scientists, the relatively younger

ones specially, often feel clueless when a need for guidance on administrative issues

arises. It is not only the CSIR/Govt. of India that “HARMONY” brings within the

reach of people; extremely useful articles, like the one on “Vigilance Clearance” in the

present issue, by eminently qualified persons add great value to the magazine.

My sincere thanks and warm regards to you and your team.

- Dr V B Lal)

Retd Scienrtist, CSIR HQ

At the time of Civil Society's crusade against corruption, your article

"VIGILANCE CLEARANCE – AN ENIGMA OR A SIMPLICITOR ?" is very timely

reminder to all the concerned. Kudos to your untiring efforts to bring out

"HARMONY" every month with useful articles. As a retired employee of IICT I know

how much pains you used to take for bringing out "HARMONY" even sacrificing your

personal life. I think only a few people like you can do such things.

- Muthender Velishala

S.O., (Retd.), IICT, Hyderabad

Thanking you for keeping us update on service matters and also on CSIR affairs.

- R.C.Yadav

Scientist, IICB, Kolkata

UGC IDENTIFIES 21 FAKE VARSITIES/INSTITUTIONS

The University Grants Commission has identified 21 fake universities and

institutions across the country. In a written reply in the Lok Sabha, Minister of State

for Human Resource Development D. Purandeswari informed the House that out of

which 8 are in Uttar Pradesh, 6 are in Delhi and 1 each in Bihar, Karnataka, Kerala,

Madhya Pradesh, Maharashtra, Tamil Nadu and West Bengal.

Similarly, the AICTE has identified 348 institutions running technical and

management courses/programmes in violation of the AICTE Regulations. Out of

these total number of unapproved institutions, 75 each are in Delhi and Maharashtra,

52 in Andhra Pradesh, 34 in West Bengal, 30 in Uttar Pradesh, 26 in Karnataka, 17 in

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Haryana, 14 in Tamil Nadu, 9 in Chandigarh, 4 in Gujarat, 2 each in Bihar, Himachal

Pradesh, Punjab, Rajasthan and Goa and 1 each in Uttarakhand and Kerala.

The UGC has taken legal action in various courts against 6 of these fake

Universities. The State Govts. have also initiated action against certain fake

Universities. Show-cause notices have also been served by the UGC to some of the

fake Universities/Institutions and by the AICTE to the unapproved Institutions for

closure of their programme.

[iGovernment Bureau, Vol.4 Issue 115]

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THE PRINCIPLES OF NATURAL JUSTICE

Ch. Srinivasa Rao

Formerly COA, CSIR-NGRI

Hyderabad

Browsing through certain case laws, study material provided in various training courses, review of CCS (CCA) Rules, 1965, the Wikipedia, and of course, application of mind, manifested into the present article. Kautilya (c. 370-283 BC) codified the crimes committed by the citizens in the Society, and against the State, and suggested the corresponding punishments through his treatise entitled “Arthashastra”. While doing so, he considered the rights of such criminals and paid attention to the Natural Justice as well. His contribution to the present subject can never be over-emphasized.

Introduction

The Principles of Natural Justice, which may be called as the “Principles”, are

in-built and implied in every action in any civilization. They effectively encompass our

lives, actions, environment around us, the society we move in.

Interestingly, the term “Natural Justice” has not been defined in any Code or

Statute, including the Constitution of India but the concept is fairly crystallized

through the various judicial pronouncements. Therefore, the following Principles may

be equated with un-codified Rules of Justice, and are analogous to the Principles of

Inquiry as recognized in the Codes of Law:

i) No one shall be a judge in his own cause;

ii) No one shall be condemned unheard; and

iii) Justice should not only be done but it should

appear that it is being manifestly done.

Natural Justice

Principles are rules laid down for affording minimum protection of the rights of

an individual against an arbitrary procedure by a judicial quasi-judicial authority while

making an order, which affects his civil rights. Principles are analogous to Principle of

Equity. The Hon’ble Supreme Court held that these rules operate in areas not covered

by any law. In other words, they do not “supplant” the law but “supplement” the

law.

Whether a particular Principle is applicable to a particular situation or not will

depend on the facts time and circumstances of each case. Whenever a complaint is

15

made before the court that the Principles are contravened, the court has to decide

whether the observance of the rule was necessary for imparted justice.

Purpose

Application of the Principles serves the following purposes:

� To avoid miscarriage of justice

� To ensure justice and fair play

� Operates in areas where:

� Codified law does not exist; or

� When it is silent about these Principles

� Applicable even to administrative actions

� Cannot over-ride Law

� Can be exempt by specific provisions of law, or necessary implications

Constitutional Provisions

Though the Principles have not been defined anywhere in the Statute, Article

311 (2) of the Constitution of India gives a broad idea about their meaning which

reads as follows:

“No person who is member of a Civil Service or holds a Civil Post under the Union or State shall be dismissed or removed or reduced in rank except after an Inquiry in which he has been informed of the charges against him and given reasonable opportunities of being heard in respect of those charges.”

In view of the interpretation of the term “Civil Post” by the High Courts and

Supreme Court, this protection is not available to those who were ‘not’ covered

under the term “Civil Post”. The protection extended to a civil servant under Clause

(2) of Article 311 of the Constitution does not extend in the following instances:

i) Where the dismissal or removal or reduction in rank is on the ground of

conduct which has laid to his conviction on a criminal charge;

ii) Where the competent authority is satisfied that for some reason to be recorded

in writing it is not reasonable and practicable to hold such Inquiry; and

iii) Where the President or the Governor, as the case may be, is satisfied that it is

not expedient to hold an inquiry in the interest of security of the Sate. The

protection as guaranteed by Article 311 extends to all persons who hold a civil

post under the Union or the State, including Members of All India/State

Service.

But even where Article 311 (2) is not attracted in case of above categories of

employees, the rules of Natural Justice must be complied with before terminating the

service of an employee of a Statutory Authority, including the charge and a

16

reasonable opportunity to the employee to cross-examine the witnesses and to lead

defence in support of his version.

The rules framed by the respective employer in respect of Conduct & Discipline

of the employee must be complied with before the employee is punished with

dismissal, removal or reduction in rank. Failure of the observance of the laid down

rules, in this respect, will tantamount to violation of Principles. It is thus well settled

that in Departmental Inquiries against public servants, the authorities must not only

conform to the constitutional requirement and the rules/regulations laid down for

that purpose but also the Rules of Natural Justice.

Various High Courts including the Apex Court have given their decisions in

respect of the application of the Principles to be applied in a number of situations on

case to case basis.

While Article 309 of the Constitution regulates the recruitment and conditions

of service of the persons appointed to the public service, Article 310 provides that,

subject to the other provisions of the Constitution, all civil posts under the Union are

held at the pleasure of the President. Similarly, all the civil posts under the State are

held at the pleasure of the Governor.

However, Article 311 does not alter or affect the principle that a Govt. servant

holds Office at the pleasure of the President or the Governor, as the case may be. It

only subjects the exercise of that pleasure to the following two conditions:

i) that such an employee shall not be dismissed or removed or reduced to lower

rank by any authority subordinate to that by which he was appointed; and

ii) that such an employee shall not be dismissed or removed or reduced in rank

without an Inquiry into the charges against him in which he has been informed

of the charges against him and given a ‘reasonable opportunity’ of being heard

in respect of the charges.

The Supreme Court observed that the Article 311 includes:

i) an opportunity to deny his guilt and establish his innocence, which he can only

do if he is told what the charges levelled against him and the allegations on

which such charges are based;

ii) an opportunity to defend himself by cross-examining the witnesses produced

against him and by examining himself or any other witnesses in support of his

defence; and finally; and

iii) an opportunity to make his representation as to why the proposed punishment

should not be inflicted on him, which is over and after applying his mind to

the gravity or otherwise of the charges proved against the Govt. servant

tentatively proposes to inflict one of the three punishments and communicates

the same to the Govt. servant.

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However, the Amendment which took place during 1976 changed the position

now. It is no longer necessary to give the Charged Officer (C.O.) an opportunity of

making a representation on the penalty proposed to be imposed upon him.

This raised the issue that the C.O. is being punished on the basis of a document

considered in his absence, and therefore, such a procedure is violative of the

Principles.

Through the process of judicial interpretation, the following two basic rules of

Principles have been evolved:

1. No one shall be a judge in his own cause

No person can be a judge in his own cause and no witness can certify that his

own testimony is true. Anyone who has a personal stake in an inquiry must keep

himself from the conduct of the inquiry. The judge can under no circumstances

combine in himself the roles of judge and jury, of judge and witness or judge and

prosecutor.

The above Principles apply to a person who is entrusted with the conduct of

inquiry -- complainant, friend, relative, witness, officer who is biased, or has personal

knowledge should not be appointed as Inquiry Authority I.A.).

The Disciplinary Authority (D.A.) who conducts the inquiry where one is

appointed, acts like a Judge. He shall be independent, impartial, fair and objective. A

person with a fore-closed mind who has prejudged the issue or predetermined to

punish the C.O., should not act as D.A. Similarly, a person who is a complainant or

witness or prosecutor cannot act as a Judge.

While nothing can prevent the D.A. from holding the Inquiry itself, if the

C.O. raises any question of bias on sound reasons, he may not hold the Inquiry. Thus,

in a case, where from all circumstances it was clear that the petitioner reasonably had

an apprehension that the D.A. holding the Inquiry was biased against him and had

made up his mind to punish him, this bias would vitiate the entire Inquiry

proceedings. The test of likelihood of bias is based on the reasonable apprehension

of a reasonable man fully acquainted with the facts. Surmises and conjectures are not

sufficient.

The D.A. must be totally free from any bias. Bias can be of many types: (a) a

pecuniary interest, (b) a personal interest, (c) pre-conceived notion bias, (d)

departmental bias, and (e) subject-matter bias. It is relevant not only in the D.A. but

also in the I.A. even where the I.A. is a different person from the D.A..

Nevertheless, mere suspicion of bias is not sufficient. There must be a

reasonable likelihood of bias. In deciding the question of bias we have to take into

consideration human probabilities and ordinary course of human conduct.

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2. No one shall be condemned unheard

The concept of reasonable opportunity extends throughout the disciplinary

proceeding from the stage of framing of charges till the final order of penalty.

This principle could be broadly classified as under.

� party to an action is prima facie entitled to be heard in his presence;

� he is entitled to dispute his opponent’s case, cross examine his opponents

witnesses and entitled to call his own witnesses and give his own evidence

before Court; and

� he is entitled to know the reasons for the decision rendered by a

Court/Tribunal.

By a process of judicial interpretation, two rules have been evolved has

representing the Principles in judicial process, including therein quasi-judicial and

administrative process. Their being:

• no man shall be a judge in his own cause

• hear the other side -- Audi Alteram Partem

From the above two rules a corollary has been deduced, namely, that he who

shall decide anything without the other side having been heard, although he may

have said what is right, will not have done what is right. In other words, justice

should not only be done but should manifestly be seem to be done.

While considering the Audi Alteram Partem rule it was observed that:

� a person against whom an order to his prejudice may be passed should be

informed of the charges against him;

� Such person should be given an opportunity of submitting his explanation

which also include the right to know the oral and documentary evidence

which are to be used against him;

� Witnesses who are to give evidence against him be examined in his person

with right to cross examine them; and

� To lead his own evidence, both oral and documentary, in his defence.

Preliminary Inquiry

As soon as decision has been taken by the competent authority to start

departmental proceedings, the authority will draw up charges on the basis of material

gathered during the preliminary investigation.

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Inquiry Report submitted by Vigilance/Police/other agencies, Article of Charges,

Statement of imputation, etc. to be prepared in the prescribed format. The

Memorandum should be signed by the D.A. or authorized legally delegated authority.

The Departmental Inquiry is conducted to maintain discipline in the service and

efficiency of the public servant. The Principles and equal opportunity are strictly

followed. The C.O. should be given fair and reasonable opportunity to defend

himself.

The person holding Inquiry should be without bias and vindictiveness. The

conclusion must ‘not’ rest on the evidence adduced during the Inquiry on matters

outside the records or the evidence taken in the absence of the C.O.. To complete

the Inquiry within limited time of six months by judicious use of his discretion to

avoid delays but not at the cost of Natural Justice.

Departmental Inquiry

In recent times, the importance of the Principles assumed greater significance

due to the fact that the judicial functions or quasi-judicial functions for deciding cases

involving disciplinary action against public servants charged with misconduct,

misbehaviour, etc. are entrusted to Administrative Tribunals, Departmental Heads of

Central/State Govt., etc. by which such cases are taken cognizance of.

The aim of the Principles is to secure justice or to put it negatively to prevent

miscarriage of Justice. The concept of Natural Justice has undergone a great deal of

change in recent years. In the past, only two rules were recognized --

i) firstly nobody should be a judge of his own cause and secondly nobody should

be condemned unheard, i.e. without giving him the reasonable opportunity to

defend himself.

ii) secondly, ‘Hear the other side’ which means:

a) that a judge must hear both sides and must not hear one side in the

absence of the other. It means that the C.O. has a notice of the charges,

he is called upon to explain and the allegations on which those are

based;

b) that he has access to all relevant evidence that he wishes to adduce;

c) that he is given the opportunity to cross-examine the prosecution

witnesses and to produce witnesses in defence and offer himself for

examination;

d) that no evidence should be recorded behind his back but all of it should

be taken in his presence; and

e) that no materials should be relied on against him without his being

given an opportunity of explaining them.

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In course of time, the process of applying the Principles, many more subsidiary

rules got added up.

On receipt of the Inquiry Report, the D.A., before imposing any penalty, has

to furnish a copy of the Inquiry Report to the C.O. and give him an opportunity to

make a representation and take the representation, if any, into consideration before

taking final action. It is not necessary to give any opportunity to make representation

on the penalty proposed to be imposed.

In one of the cases, the Supreme Court interpreted the requirements of Natural

Justice in the following terms:

“Stating it broadly and without intending it to be exhaustive, it may be

observed that rules of Natural Justice require that a party should have the

opportunity of adducing all relevant evidence on which he replies, that the

evidence of opponent should be taken in his presence and that he should be

given the opportunity of cross-examining the witnesses examined by that

party, and that no material should be relied on against him without his being

given an opportunity for explaining them.”

Legal Assistance

The Supreme Court held that in the absence of rules, the assistance of an

advocate can be refused, if there is no legal complexity in the case. Wherein a

disciplinary Inquiry by a domestic tribunal, the employer appointed two Presenting-

cum-Prosecuting Officers to present the case on behalf of the management, who were

legally trained, denial of a request of the C.O., seeking permission to appear and

defend himself by a legal practitioner would vitiate the Inquiry on the ground that the

C.O. had not been afforded reasonable opportunity to defend himself, thereby

violating one of the essential Principles.

Judicial vis-à-vis Quasi-Judicial Proceedings

Judicial proceedings are proceedings before a Court of Law whereby the

criminal charges and the criminal liabilities of an accused are legally determined

according to the procedures established by Law and include all proceedings in the

course of which evidence may be taken on Oath. Confession before a Police Officer

is not admissible as evidence in criminal cases. Similarly, self-incriminating evidence

cannot be considered. Courts interfere only in cases of violation of rules of

procedures, Natural Justice, arbitrariness, absence of evidence, etc. but not on the

merits of evidence.

In contrast, the proceedings held by Competent Authority/Inquiring Authority

(other than a Court) whereby the charges leveled against and the liabilities of a civil

servant are determined by holding a Departmental Inquiry after providing reasonable

opportunity and in accordance with the Principles. Confession before a Senior Officer

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may be admissible. And at the same time self-incriminating evidence can also be

considered in departmental proceedings.

The degree of proof is by preponderance of probability and Indian Evidence

Act is not applicable as far as proof of documents is concerned. Even the hearsay

evidence, if it has logically probative value, is admissible. Discipline Authority is the

sole judge of the facts such as adequacy and reliability of evidence cannot be

questioned before Court. Departmental proceedings can be conducted even on

holidays. The departmental proceedings can be conducted in camera except those under P.S. (Inquiry) Act, 1880.

There is no need to examine all the witnesses. Witnesses who were not cited

in charge sheet can also be examined at the request of the Presenting Officer or at the

instructions of I.A.. Tape-recorded evidence is admissible. Evidence of accomplice

can also be relied upon. When a charge different from charge framed established, the

I.A. can give findings of the charge, provided the C.O. admits on allowing him

reasonable opportunity. In Departmental Inquiry initiated for major penalty, minor

penalty can be imposed. Past bad record cannot be taken into consideration for

arriving at findings on the charge but can be considered for imposing an enhanced

penalty.

In a quasi-judicial matter, the Supreme Court concluded that if the C.O. is

being deprived of knowledge of the material against him though the same is made

available to the punishing in the matter of reaching his conclusion, rules of Natural

Justice are considered to have been affected.

It was held that supply of a copy of the Inquiry Report would be within the

rules of Natural Justice and the C.O., therefore, would be entitled to supply thereof.

Thus even though the issuance of show cause notice against the proposed penalty to

the C.O. is not required, still he would be entitled to have a copy of the Inquiry

Report and may make representation on the findings arrived at by the I.A., before the

order of punishment is issued.

Charge Sheet

The framing of a charge is the first step in departmental Inquiry. The object of

issuing a charge sheet is to give sufficient opportunity to the public servant concerned

to know the nature of the misconduct alleged against him so that he may offer his

explanation thereto and defend himself. The charge should not contain any

expression of opinion as that would create an impression in the mind of the charged

official that the D.A. is prejudiced against him.

The charge sheet should be specific and it must set-out all the necessary

particulars. It should not be vague. It should mention the substance of the accusation

in a very clear manner. The time, date and place of the misconduct should be

mentioned in the charge-sheet.

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A charge may be amended during the course of the Inquiry of the D.A. so feels

on the material before him. In such case, the C.O. should be given reasonable

opportunity of meeting the amended charge by recalling the witnesses already

examined by adducing additional evidence. An alteration or addition or amendment

of a charge is a matter of procedure and as long as sufficient notice of such alteration,

addition or amendment is given and sufficient opportunity is given to the C.O. to

meet the same, there will not be any violation of the Principles.

The Principles require that the C.O. should know before-hand who are the

witnesses that are going to speak against him during the Inquiry and which are the

documents that are going to be filed in support of the charges. The C.O. should be

given facility to examine and study the documents sought to be put in evidence

against him and if he desires to take notes or extracts, he should be allowed to do so.

Copies may be furnished, where considered necessary, depending on the facts and

circumstances of the case. Documents on which no reliance is placed during the

inquiry, need not be disclosed. But documents which are not relied upon for the

purpose of proving the charge but are essential for the purpose of his defence should

be made available to the C.O.. The I.A. can disallow documents cited by the C.O.

which are considered not relevant to the case.

During the departmental inquiries, in order to see that the Principles are

complied with, the following guidelines as laid down by the various High Courts and

the Supreme Court are strictly adhered to:

The Disciplinary Authority should:

� act honestly, impartially and in good faith and must give an opportunity to the

C.O. to deny his guilt and establish his innocence which he can only do, if he

is told about the material on which the charges are based;

� must frame definite and unambiguous charges;

� or the I.A. should inform the C.O. about the accusation against him in clear

and specific terms as far as practicable; and

� Should also be considerate, on merits, if change of I.A. is requested by the C.O.

The Inquiry Authority should:

� have no bias against the C.O. nor should have any interest in the subject

matter of inquiry;

� should examine the witnesses in support of the charge in the presence of the

C.O. and allow him to cross examine them;

� should place all the documents to be relied upon to prove the charge(s) at the

outset, and give an opportunity to the C.O. to scrutinize such documents;

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� should afford adequate opportunity to the C.O. to state his defence and cross-

examine the prosecution witnesses to disprove the charge as well as to produce

oral

and documentary evidence on which he relies in order to substantiate his

defence;

� should follow the basic Rules of Evidence;

� should not collect material evidence either oral or documentary behind the

C.O. and rely upon to prove the charge;

� should not be influenced by any extraneous consideration in arriving at the

decision regarding the guilt or otherwise of the C.O.;

� must evaluate the evidence dispassionately and without any bias or prejudice;

� should play a balanced role, on case to case basis, coupled with the Principles,

particularly in respect of:

• being considerate in case of request for adjournment as there might be certain

occasions where the C.O. may on personal/official reasons seek adjournment

of Inquiry, etc.;

• allowing the C.O. to critically examine the documents/witnesses, etc.; and

• encouraging the C.O. to have his choice of Defence Assistant on whom he may

have full confidence; sometimes even from other than Head Qrs., as denial of

his choice may lead to accusation of bias or other reasons which may, at times,

even vitiate the proceedings.

Applicability of Natural Justice or Otherwise

However, the Principles of Reasonable Opportunity will not apply to the

following cases:

a) where a person is dismissed or removed or reduced in rank on the

ground of conduct which has led to his conviction on a criminal charge;

or

b) where the authority empowered to dismiss or remove a person or to

reduce him in rank is satisfied that for some reasons, to be recorded by

that authority in writing, it is not reasonably practicable to hold such

inquiry; or

c) where the President or the Governor, as the case may be, is satisfied that

in the interest of such inquiry as is referred to in Clause (2) of Article 311

of the Constitution, the decision thereof of the authority empowered to

dismiss or remove such person or to reduce him in rank shall be final.

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Departmental Inquiry vs. Investigating Agency

When a Police investigation is going on, consequent upon institution of a

criminal case against a public servant, the truth of the same should be ascertained only

in an Inquiry or trial by the criminal court when a prima facie case is found by the investigation and a charge sheet is submitted. In most cases, it would be proper and

reasonable for the D.A. to wait for the result of the police investigation and where

the investigation is followed by Inquiry or trial, the result of such Inquiry or trial

before deciding to take any disciplinary action against any of its employee. As far as

the cases being investigated by the SPE/CBI is concerned, the CVC issued the

instructions that once a case has been taken up by the CBI for Inquiry or investigation,

the Departmental Inquiry including the Domestic Inquiry shall end.

Even though this appears to be a reasonable course, which will ordinarily be

followed by the D.A., there is no legal bar to the D.A. ordering a departmental

Inquiry even in a case where a First Information Report u/s. 154 Cr.PC has been

lodged.

Departmental Inquiry vs. Prosecution by Court

The object of departmental proceeding is to ascertain as to whether the

employee is a fit person to be retained in service and the object of the Court trial is to

see as to whether the ingredients of the offence have been made out warranting

conviction. If the case is of grave nature or involves question of facts or law, which

are not simple, it would be advisable for the employer to wait the decision of the trial

court so that the defence of the employee in the criminal court may not be

prejudiced.

Though ordinarily a departmental action is not initiated in regard to sub judice matter, yet the Courts would not stay departmental proceedings merely because a

criminal prosecution of the same person is launched in a Court of Law.

Departmental Inquiry -- Effect of Acquittal

In the event of acquittal of the C.O. in a criminal case whether the

departmental Inquiry pending against him on the same set of facts would continue? It

has been observed by the Supreme Court that such matter is to be decided by the

department after considering the nature of finding given by the Criminal Court.

Normally, where the accused is acquitted honorably and completely

exonerated of the charges, it would not be expedient to continue a departmental

Inquiry on the same charges or grounds of evidence, but the fact remains however,

that merely because the accused is acquitted, the power of the concerned authority to

continue the Departmental Inquiry is not taken away nor its discretion in any way

fettered.

If the findings are recorded against the C.O. placing reliance on a document

which might not have been disclosed to him or the copy whereof may not have been

supplied to him during the Inquiry, when demanded, that would contravene the

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Principles rendering the Inquiry and the consequential order of punishment illegal and

void. If copies of the relevant and material documents including the statement of

witnesses recorded in the preliminary Inquiry or during investigation are not supplied

to the C.O. facing the Inquiry and such documents are relied upon in holding the

charges framed against the C.O., the Inquiry would be vitiated for the violation of the

Principles .

Cut in Pension on conviction

When a full-fledged Inquiry under CCS (CCA) Rules, 1965 has been conducted

and the person concerned has been given an opportunity to show cause in the

proceedings, it is not necessary to give the pensioner concerned any further

opportunity to show cause before imposing the cut in pension. However, in order to

meet the Principles, it is a pre-requisite to issue a show cause notice on the basis of

conviction by the Court to the pensioner before imposing any cut in his pension.

Similarly, if the statement of witnesses recorded during the investigation of a

criminal case or in the preliminary Inquiry is not supplied to the C.O., that would

amount to denial of opportunity of effective cross examination.

Speaking Order

The principle that the order must be a Speaking Order is based on the premise

that whether the judge has considered all the aspects of a matter before him can be

ascertained only if the order which he makes is a Speaking Order. The DA should

record reasons where he differs with the findings of the I.A.. The recommendation of

the Public Service Commission or the Vigilance Commission, if they were involved, is

not binding on the D.A.. The D.A. will have to apply his mind and arrive at his own

decision, on findings and quantum of penalty.

While making out a Speaking Order, the following aspects have to be borne in

mind:

� Context – Explain the Background � Contentions – mention the rival contentions of the contesting parties � Consideration – evaluate the contentions vis-à-vis each other and in

the light of rules position

The requirement of making a speaking order will minimize the possibility of

arbitrary exercise of power as the necessary search for reasons will ensure

reasonableness. Reasons are the links between the materials on which certain

conclusions are based and the actual conclusions. They disclose how the mind is

applied to the subject matter while arriving at a decision.

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The importance of a Speaking Order can never be over-emphasized as it helps

in:

� disclosure guarantees consideration; � introduces clarity; � excludes or minimises arbitrariness; � satisfaction of the party; and � enables appellate fora to exercise control.

References

1. CCS (CCA) Rules, 1965

2. “Vigilance Manual” Vol. I (2005), Central Vigilance Commission, New Delhi

3. “Training on Vigilance”, Conducted by the Central Bureau of Investigation

Academy, Ghaziabad during 27-31 March, 2006

4. GOI DOP&PW O.M.No.38/64/05-P&PW(A) dt. 9-11-2006; CSIR Lr.No.15-

6(82)/98-O&M-II dt. 15-1-2007

5. “Principles of Natural Justice”, a Lecture delivered by Justice T.S. Sivagnanam

at Tamil Nadu State Judicial Academy on (2009), Wikipedia

6. “Principles of Natural Justice”, an article published in Wikipedia by C.A. Ashish

Makhija, FCA, AICWAA, LLB, Corporate Lawyer

.o.