Failure to follow the prescribed procedure laid down for departmental proceedings against Government Servants for misconduct. Issue Instructions - reg

OFFICIAL MEMORANDUM
NO.GAD (S.1) 33 SSR 61, BANGALORE, DATED: 27-6-62. (ASHADHA 6, SAKA ERA 1884)
Sub:Failure to follow the prescribed procedure laid down for departmental proceedings against Government Servants for misconduct. Issue Instructions - reg.

The following questions in connection with the reinstatement of dismissed/removed/ discharged Government Servants whose services have been terminated, have been considered.
1. Whether before the Government decide to reinstate an individual on grounds of equity, the concurrence of the Finance Department should be obtained for payment of pay and allowances for the intervening period, or whether the administrative authorities could themselves, after following the prescribed procedure reinstate the person and sanction payment of pay and allowances under Rule 99 of the Mysore Civil Services Rules.
2. Whether in cases of reinstatement on the grounds of dismissal/removal/discharge from or termination of service being held by a Court of Law or by an Appellate/reviewing authority to have been made without following the procedure required under Article 311 of the Constitution, payment of full pay and allowances for the intervening period is automatic and compulsory.
3. As regards Question No.1, it has been decided that the concurrence of the Finance Department will not be necessary for reinstating a Government servant if the authority which reinstates the Government servant is competent to appoint him. The question as to what pay and allowances should be allowed for the intervening period and whether or not the period should be treated as duty will be dealt with under Rule 99 of the Mysore Civil Services Rules.
4. Regarding Question No.2 stated in para 1 above, it has been decided that Rule 99 of the Mysore Civil Service Rules is inapplicable in cases where dismissal/removal/discharge from or termination of service is held by a Court of Law or by an Appellate/reviewing authority to have been made without following the procedure required under Art. 311 of the Constitution.
In Such cases:
(i) if it is decided to hold a further enquiry and the Government servant is deemed to have been placed under suspension from the date of dismissal/removal/ discharge/termination under Rule 10 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, the Government servant will be paid a subsistence allowance from the date he is deemed to have been placed under suspension, under Rule 98 of the Mysore Civil Services Rules, 1958.
(ii) If the Government servant is not deemed to have been placed under suspension as envisaged under (i) above, the payment of full pay and allowances for the intervening period and treatment of that period as duty for all purposes will be automatic and compulsory, provided that:-
(a) the arrears should be paid subject to the law of limitation -
(b) where the reinstated Government servant has secured employment during any period between the dismissal/removal/discharge/termination and reinstatement, the pay and allowances admissible to him after reinstatement for the intervening period shall be reduced by the emoluments earned by him during such employment unless the
emoluments earned by him exceeds the pay and allowances admissible to him provided that the amount to be paid under (i) and (ii) above will be determined subject to the directions, if any, in the decree of the Court regarding arrears of salary.
5. As the dismissal/removal/discharge/termination of service of a Government servant without following the procedure laid down in the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, results in the payment of arrears by way of pay and allowances, the need for meticulously observing the proper procedure in such cases is once again impressed on all concerned. In all cases where the circumstances leading to a Government servant's reinstatement reveal that the authority which terminated his services, either wilfully did not observe, or through gross negligence failed to observe, the proper procedure before terminating the services of any Government servant, proceedings should be reinstituted against such authority under the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 and the question of recovering from such authority the whole or part of the pecuniary loss arising from the reinstatement of the Government should be considered.