Issue instructions regarding the Departmental Proceedings against Government Servants for misconduct.

CIRCULAR No.GAD(S-1) 35 SSR 58, Bangalore, dated 8th January 1959
Issue instructions regarding the Departmental Proceedings against Government Servants for misconduct.

A number of instances have come to the notice Government in which the Departmental proceedings taken against Government Servants have been quashed by the High Court on the Ground that the proceedings were procedurally defective. While this is especially true of departmental enquiries held before the issue of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, it is observed that even in some of the enquiries held after the issue of these Rules, the enquiries have not been held in conformity with the procedure laid down therein. The common defects noticed in the large majority of cases are as under:-
1) failure to frame specific charges,
2) recording of evidence of witnesses in support of the charges, in the absence of the delinquent Government servant, of merely giving him an opportunity to cross-examine the witnesses without first recording his evidence as against the delinquently,
3) failure to comply with reasonable requests for inspecting the relevant records.
4) failure to furnish the reasons for the findings on the charges.
5) the imposition of a major penalty without giving a show cause notice to the official concerned, as required under Article 311 (2) of the Constitution, and
6) failure to furnish a copy of the report of the enquiry to the delinquent alongwith the show cause notice.
2. It would appear from these defects that Enquiry Officers do not study the instructions on the subject. This is inexcusable. The attention of all officers is invited to Official Memorandum No.GAD 3 CAR 57 dated 14th December 1957, which contains detailed instructions regarding the manner of holding Departmental enquires. In particular, the disciplinary authorities should bear in mind that failure to comply with the provisions of Article 311(2) of the Constitution, which requires that a reasonable opportunity to show cause against the action proposed to be taken in regard to him, should be given in any case in which a Government servant is proposed to be dismissed or removed or reduced in rank, will vitiate the entire proceedings. As provided in Rule 11(8) to (12) of the Mysore Civil Services (Classification, Control and Appeal) Rules, it is mandatory that whenever any major penalty such as is mentioned in Rule imposed on a Government servant, a show cause notice must be issued to the accused Government servant, stating the action proposed to be taken against him, and asking him to show cause, within a specified time, why such action should not be taken. The official is also entitled to know the reasons of the disciplinary authority in coming to the conclusion that the charges against him have been proved. Therefore, while issuing a hx show cause notice, it is essential that a copy of the enquiry officer's report is also furnished. Where the disciplinary authority is not the inquiring authority, a statement of its findings to-gether with the reasons for disagreement, if any with the findings of the inquiring authority, should also be made available to the accused Government servant.
3. In this connection, It may be noted that reduction in pay or postponement of increment with retrospective effect except where the pay is held up at an efficiency bar is a major penalty which attracts the provisions of Article 311 (2) of the Constitution requiring the disciplinary authority to serve a show cause notice on the delinquent Government servant before imposing such a penalty.
4. It is impressed upon all officers that neglect in the due observance of the procedure prescribed in the Rules, is liable to vitiate the whole proceedings and the ultimate order passed therein. It may happen that though on merits the order of punishment may be fully justified, it may have to be set aside on account of some technical defect or irregularity committed in the conduct of the enquiry. This may often enable a guilty party to escape punishment, as also cause considerable financial loss to Government. It should be noted that glaring faults in procedure by officers conducting enquiries will be deemed a failure of duty and Government will be constrained to take suitable action against the defaulting officers.