Procedural instructions regarding the holding of Departmental Enquiries under the Mysore Civil Services (Classification, Control and Appeal) Rules1957

Official Memorandum No.GAD(OM) 3 CAR 57 dated 14th December 1957
Sub:- Procedural instructions regarding the holding of Departmental Enquiries under the Mysore Civil Services (Classification, Control and Appeal) Rules 1957.

The procedure to be follwed before an order of reduction to a lower post or time-scale or to a lower stage in a time-scale, compulsory retirement before completion of the prescribed number of years of qualifying service, removal or dismissal is passed against a Government servant under rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957, subject of the exceptions mentioned in rule 14, is prescribed in rule 11 of those rules. Neglect in the due observance of the provisions of the rule is liable to vitiate the whole proceedings and the ultimate order passed therein. It may often happen that though on merits on order of punishment may be fully justified, it may have to be set aside an account of some technical defect or irregularity committed in the conduct of the inquiry. This may often enable a guilty party to escape punishment as also cause considerable financial loss to Government. The following instructions are therefore issued for the guidance of officers who may have occasion to hold an inquiry under the above mentioned rule. Before holding an inquiry such officer is requested to go through these instructions carefully and adhere to them:-
1. Preliminary enquiry:- (a) Before commencing and departmental enquiry against a Government servant with regard to a disciplinary matter, it is necessary that thenar should be sufficient evidence gathered by way of preliminary enquiry and the authority competent to order the enquiry should be satisfied that there is sufficient prima-facie evidence to start disciplinary proceedings against the Government servant concerned. This preliminary enquiry may be made by any officer under whose administrative control the officer alleged to be at fault is working (or was working at the time the acts complained of were
committed), but the decision to hold the enquiry can only be taken by the authority competent to hold the enquiry under the rules.
(b) Any officer can ask for an explanation from a subordinate officer in respect of any matter pertaining to his duties and it will often be advisable before initiating a departmental enquiry to obtain the explanation as, after obtaining the explanation, the reporting authority may feel that there is no case to initiate departmental proceedings at all. The asking of such an explanation is, however, not compulsory and the authority competent to order the investigation, will have to decide, according to the circumstances of each case, whether such an explanation should be obtained before issue of a chargesheet or not.
2. Issue of Charge-Sheet:- (a) Once the authority competent to appoint the enquiry officer is satisfied that a departmental enquiry is necessary, or he is directed by higher authority to hold a departmental enquiry the first higher authority to hold a departmental enquiry the first step will be to appoint an Enquiry Officer (if a higher authority has directed the officer to hold the enquiry himself, he himself will be the Enquiry Officer). The Enquiry Officer should frame a charge-sheet containing:-
(i) definite charge or charges,
(ii) under each charge the grounds on which that charge is based, and
(iii) any other circumstances which it is proposed to take into consideration in passing orders in the case.
Each charge should be drawn up clearly and precisely and care should be taken to avoid vagueness.
(b) The charge-sheet should conclude with the following formula:-
"Please show cause why suitable disciplinary action should not be taken against you on the charges mentioned above."
"You are required herewith to put in any written statement you may desire to submit in your defence by ................. (the date to be specified). Please also state whether you desire any oral enquiry and/or to be heard in person. In case you desire any oral enquiry to be held please specify the witnesses you desire to cross-examine and the witnesses you desire to examine in your defence. Your attention is invited in this connection to rule 11(6) of the Mysore Civil Services (Classification, Control and Appeal) Rules 1957. In case you fail to put in your written statement by the above date, the undersigned may proceed with the enquiry on the basis that you have no defence to offer".
3. Written statement in defence-The Enquiry Officer should fix a reasonable time within which the written statement must be filed. In dealing with requests if any, for further time, by the accused Government servant, the Enquiry Officer Will consider whether the accused Government servant is sufficiently active in the preparation of his defence and whether the time asked for is really necessary. An accused Government servant must have reasonable facilities for the preparation of his defence, and subject to this condition, it is the Enquiry Officer's responsibility to complete the Departmental proceedings with the greatest despatch and submit his report to the appropriate authority. Normally, the maximum period for which an officer can be kept under suspension is six months and, as within this period, final orders have to be passed, it would be reasonable to except the Government servant concerned to put in his defence within three to five weeks according to the nature of the case. These limits are only ment for general guidance and are not to be taken as absolute limits. In simple and straight forward cases, even three
weeks may not be necessary, while a case which involves study of columinous record, not in the Government servant's own office, a longer period than five weeks may be necessary.
4. Request for an oral inquiry and/or to be heard in person:- (a) If within the prescribed time, or such further time as the Enquiry Officer may give, no written statement in defence is filed and no request in writing is made for oral enquiry or for being heard in person, the Enquiry Officer may either record his findings forthwith without holding any further enquiry, or, at his discretion, enquire into the matter further to satisfy himself about the truth of the charges. An enquiry must be held where the Government servant asks for it, or has expressed a desire to be heard in person, or having regard to the written statement in defence or the statement made by the Government servant himself when he is heard in person, a further enquiry is necessary to decide the truth of the charges.
(b) Except in respect of very straight forward cases, the Enquiry Officer will always find it useful to examine the Government servant concerned orally, irrespective of whether the Government servant desires to be heard in person or not.
5. Record of evidence:- (a) At the oral enquiry evidence should be heard on charges which are not admitted or which, though admitted, the Enquiry Officers desires to investigate. The enquiry, however, should not extend to matters not mentioned in the charge-sheet.
(b) The evidence in support of the charges should be recorded first and the accused Government Servant given an opportunity to cross-examine the witnesses.
(c) The evidence of each witness should be recorded in the form of a narrative and when the evidence is completed it should be read over to the witness, and, if necessary explained to him in the language in which it was given. If the witness denied the correctness of any part of the evidence when it is read over to him, the Enquiry Officer may either carry out the correction or, instead of correcting the evidence, make memorandum of the objection and add such remarks as he thinks necessary. Then, the statement shall be signed by the Enquiry Officer. Copies of such evidence as are required by the accused Government servant may be permitted to be taken by him or at the discretion of the Enquiry Officer supplied to him.
6. Enforcing the attendance of witnesses:- (a) The Officer holding the enquiry has no power to enforce the attendance of any non-official witnesses. As regards official witnesses he should be able to procure their presence either by writing to them direct or to their superior officers at appropriate levels. Normally, the request to call an official witness, when his evidence is relevant, should not be rejected. When, however, it appears that the request is frivolous or vexatious or it is made with a view to prolong unnecessarily the enquiry, the request should be refused and the reasons there of recorded in writing.
(b) The above instructions for recording the evidences of witnesses apply equally to the record of the examination of the accused Government servant himself.
7. Expenses of witnesses:- Except where they are official witnesses whose evidence is, in the opinion of the Enquiry Officer, relevant the expenses of witnesses called by the Enquiry Officer at the instance of the person charged should be borne by the latter. Before asking such a person to appear before him as a witness, the Enquiry Officer may require the person charged to deposit the necessary expenses with him. The expenses of other witnesses called to give evidence should be borne by Government. As far as official witnesses are concerned, their appearance at the enquiry will form part of their duty.
8. Inspection of documents by the Government servant concerned:- The Enquiry Officer should give every reasonable facility to the accused Government servant to inspect
any documents or records necessary for the purpose of preparing his defence. Such inspection shold be arranged in the presence of a responsible Government servant to ensure that the records are not tampered with in any manner. The documentary evidence in the custody of the accused should be produced by him along with his written statement. If it is produced later, the Enquiry Officer may admit or reject it in his discretion. Normally such evidence should not be rejected unless it has the effect of unnecessarily prolonging the enquiry and the accused Government servant has not offered a reasonable excuse for not having produced the evidence earlier.
9. Enquiry Officer's responsibility:- It is the Enquiry Officer's responsibility to arrive at the truth of falsity of the charges against the Government servant. For this purpose, it is his responsibility to put whatever questions as may be necessary both to the witnesses examined in support of the charge and to the withnesses produced by the accused Government servant.
10. Prohibition against appearance by Lawyers:- Lawyer should not be allowed to appear in departmental enquiries, whether for the accused Government servant or against the accused Government servant. Rule 28 of the Classification Control and Appeal Rule refers.
11. Submission by the accused of another written statement:-After all the evidence has been heard, the person charged shall, if he so desires, put in a further written statement in his defence and also explain his defence orally to the Enquiry Officer.
12. Drawing up of the findings by the Enquiry Officer:- (a) On completion of the enquiry, including the personal examination of the accused Government servant, if any, as the case may be, the enquiry officer shall record his findings in respect of each charge, with reasons thereof, and forward the proceedings to the authority appointing him.
(b) The proceedings, forwarded shall contain,-
(i) the charges framed against the Government servant alongwith the grounds of charge;
(ii) written statement filed in defence, if any;
(iii) a sufficient record of the evidence, given during the oral enquiry as also the documentary evidence;
(iv) a memorandum of the points urged by the Government servant concerned during the personal hearing, if any;
(v) a statement of the finding of the Enquiry Officer on the different charges and the grounds therefor; and
(vi) the penalty recommended.
13. Provisional conclusion:- The authority competent to impose punishment, on perusal of the proceedings, shall come to a provisional conclusion in regard to the penalty to be imposed.
14. Giving of a second or further opportunity to the person charged:- If this penalty is any one of the penalties mentioned in clauses (v), (vi), (vii) and (viii) of rule 8 of the Rules, the person charged should be supplied with a copy of the report of the enquiring authority and be called upon by t he competent authority or such other officer authorised by it in this behalf to show cause within a reasonable time, not ordinarily less than one week, or exceeding one month, against the particular penalty proposed to be inflicted.
Any representation in this behalf submitted by the person charged shall be duly taken into consideration before final orders are passed.
15. Consultation with the Public Service Commission:- (a) Where the authority to impose punishment is Government it is, save in exceptional cases, necessary, before passing an order, to consult the Public Service Commission. In asking for the advice of the Commission, the complete records of the case, namely, the records mentioned in para 12(b), the show cause notice issued under para 14 and the Government servant's reply, if any, should be forwarded to the Commission. It would not be necessary to examine the case in great detail at this stage, as Government would take a final decision only after receiving the advice of the Public service Commission. For the same reason, unless the Minister concerned has specifically so directed, it is ordinarily undesirable and unnecessary to obtain the orders of the Minister concerned at this stage.
(b) On receipt of the advice of the Commission, the papers should be submitted to the Minister concerned for orders.
(c) Where, for any reason, it is felt that the Commission's advice cannot be accepted, the papers should be referred to the General Administration Department. The General Administration Department will either take up the case again with the Commission or, in case it is felt necessary to deviate from the advice of the Commission, submit the case to the Council of Ministers for final orders.
16. Drawing up of the final order:- (a) The final order containing the decision of the authority competent to impose the penalty should be a self-contained order. The order should set out briefly the relevant facts, findings of the Enquiry Officer, the advice of the Commission and Government's decision thereon with reasons in brief for any departure from the findings of the Enquiry Officer or advice of the Commission, and it should be signed by an officer authorised to sign orders on behalf of Government under the Rules of Business, if Government issues the order or in other cases by the authority competent to impose the particular punishment. A copy of this order should be supplied to the accused Government servant.
(b) A copy of the letter of the Public Services Commission containing its advice may, if applied for, be supplied to the accused Government servant.
17. Cases in which procedure detailed above need not be follwed:- The procedure laid down in rules 11, 12 and 13 of the Rules may not be followed and all or any of the above instructions may be waived in the following cases:-
(i) when the order of punishment, i.e., reduction, compulsory retirement, removal or dismissal, is based on facts which have led to the conviction of the person charged in a criminal court. In such cases the order of punishment may be passed on the strength of the facts as disclosed in the criminal case;
(ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rule, e.g., where the Government servant has absented himslef from duty and the address of the Government servant is not known; or
(iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders thereon as it deems fit:
Provided that the Commission shall be consulted before passing such orders in any case in which such consultation is necessary.
18. Procedure to be followed in cases of minor punishments:- It is not necessary, to follow the elaborate procedure detailed in the preceding paragraphs in respect of penalties mentioned in clauses (i), (ii), (iii) and (iv) of rule 8 of the Rules. But before imposing any such punishment, the Government servant should be given a reasonable opportunity to make a representation against the action proposed to be taken. In particular, it is not necessary to give the Government servant, in such cases a notice to show cause against the proposed punishment after he had an opportunity to answer the allegations aganist him.
19. Suspension:- (a) Placing of a Government servant under suspension under rule 10 of the Rules where an enquiry into his conduct is contemplated, or is pending, would imply the commencement of a departmental inquiry in a disciplinary action. This Action shall not require the giving of a prior notice and obtaining the explanation of the Government servant concerned.
(b) The purpose in placing an officer under suspension is to keep him away from a position where he can interfere with conduct of the enquiry or temper with the documentary or oral evidence in any manner, or, where, having regard to the nature of the charges against him, it is felt that it would be unsafe to continue to vest in him the powers of his post.
(c) Where an officer is placed under suspension, it is particularly necessary to expedite the enquiry proceedings and to complete the departmental enquiry as early as possible.
(d) The authority competent to suspend a Government servant, while issuing the orders of suspension should invariably mention in the said order the subsistence allowance which shold be paid to the Government servant concerned under the rules.
(e) A Government servant should not be suspended pending enquiry as a measure of punishment. Where, however an officer has been suspended pending enquiry into his conduct, the following courses would be open at the conclusion of the inquiry:-
Where the authority competent to impose any punishment-
(i) makes an order fully exonerating or acquitting him, the period during which he was under suspension pending the inquiry shall be deemed to be period of duty and the Government servant shall be entitled to full pay and allowances as if he had not been placed under suspension:
(ii) makes an order imposing any penalty, other than a penalty of compulsory retirement, removal from service or dismissal from service, the Government servant shall be paid for the period of suspension such proportion of his pay and allowances not less than subsistences allowance payable under the rules as the said authority may in its discretion specify; and where no such proportion is specified, the Government servant shall be paid the maximum subsistence allowance admissible under the rules relating to grant of subsistence allowance and the period of suspension shall count as duty unless the said authority has otherwise directed:
(iii) makes an order imposing the penalty of compulsory retirement, removal from service or dismissal, shall be paid for the period of suspension such proportion of his pay and allowances as the said authority may, in its discretion specify and where no such proportion is specified the maximum subsistence allowance admissible under the rules relating to grant of
subsistence allowance and the period of suspension shall not count as duty for any purpose unless the said authority has otherwise directed.
20. Cases of alleged criminal misconduct of Government Servants:- The following procedure should normally be adopted in cases of alleged criminal misconduct of Government Servants:-
(a) As soon as sufficient evidence is available for the purpose in the course of investigation in case of misconduct, whether such investigation is conducted departmentally, through the Anti-Corruption Department or through the Police, action should be taken under the Mysore Civil Services (Classification, Control and Appeal) Rules, 1957 or other appropriate disciplinary rules, and disciplinary proceedings should be initiated forthwith. Such departmental proceedings need not interfere with the Police investigation, which may be continued, where necessary. After the departmental proceedings are concluded, the penalty, if any, imposed as a result thereof, the question of prosecution should be considered in the light of such material as may have become available as a result of the investigation.
(b) In suitable cases, criminal proceedings should thereafter be initiated. Before initiating such proceedings advice on the evidence should be obtained from Government's legal advisers, including in sufficiently important cases from the Advocate-General. Where the conduct of a Government servant discloses a grave offence of a criminal nature, criminal prosecution should be the rule and not the exception. Where the competent authority is satisfied that there is no criminal prosecution, which can be reasonably sustained against such an officer prosecution should not, of course, be resorted to, but prosecution should not be avoided merely on the ground that the case might lead to an acquittal.
(c) Should the decision of the trial court or the appellate court, as the case may be, lead to the acquittal of the accused, it maybe necessary to review the decision taken earlier as a result of the departmental proceedings a point to be taken into account in such review would be whether the legal proceedings and the departmental proceedings covered precisely the same grounds.
If they did not, and the legal proceedings related only to one or two charges, i.e., not the entire field of departmental proceedings, it may not be found necessary to alter the decision already taken. Moreover, it should be remembered that while the court may have held that the facts of the case did not amount to an offence under the law, it may well be that the competent authority in the departmental proceedings might hold that the Government servant was guilty of a departmental misdemeanor and he had not behaved in the manner in which a person of his position was expected to behave.