GOVERNMENT OF ANDHRA PRADESH
GENERAL
ADMINISTRATION (SER.C) DEPT.
Circular
Memo.No.24637 /Ser.C/2000-2. Dt. 5-9-2000
Sub: Public
Services-Andhra Pradesh Civil Services (CCA) Rules - Departmental Inquires -
Further Instructions - Issued.
Ref: 1. Circular Memo.No.290/Ser.C/94-2, G.A. (Ser.C)Dept., dt.01-06-1994.
2. Govt.Memo.No.650/Ser.C/94-3, G.A. (Ser.C) Dept., dt. 06-01-1995.
3. Cir. Memo. No.56183 / Ser.C/99, G.A. (Ser.C) Dept., dt. 15-10-1999.
4. From the
Vigilance Commr., A.P. Vigilance Commission, D.O. Lr.No. 194NC.A2/2000- l,
dated.16-5-2000.
5. From the
Vigilance Commissioner, A.P. Vigilance Commission, Lr.No. 194NC.A2/2000-2,
dated 01-08-2000.
Rule
20 of A.P. Civil Services (CCA) Rules, 1991 deals with procedure for conducting
departmental Inquiry. Instructions were issued vide the reference first cited,
highlighting the rule position to follow the procedure for initiating
departmental Inquiry. In the reference
second cited various points on the course of conducting departmental Inquiry
were clarified. A check list was also communicated vide the reference third
cited, on departmental Inquiries.
In
the reference 4th cited the Vigilance Commissioner, A.P. Vigilance
Commission has made certain observations on the "Role and Responsibility
of the Inquiry Officers" as follows:
"Inquiring
Officers" regard themselves to be in the same position as Judges or Magistrates
in criminal trials. They take the view that the Presenting Officer is in the
position of the "Prosecutor" in Criminal trials and as the prosecutor
cannot also be the judge in its own case, Inquiring Officers have been
appointed as neutral third-party Judges or magistrates. This view is far from
correct, because it is well recognised that these Departmental Inquires which
are conducted under the provisions of rule 20 of the Andhra Pradesh Civil
Services (Classification, Control and Appeal) Rules, 1991 applicable to the
State Government Servants are "domestic enquiries" in which the
disciplinary authority is in the position of a Master in relation to the
charged Government Servant.
The
Departmental Inquiries also have to be held according to the principles of
natural justice which are fully incorporated in the CCA Rules. It is the duty
of the Inquiring Authority to the Charged officers to ensure that these
principles of Natural Justice are observed. The distinguishing feature,
however, is that the Inquiring Authority, being a creature, or a delegate of
the disciplinary authority, also retains, throughout the inquiry, clear
responsibilities towards the disciplinary authority.
In
criminal trails, the entire responsibility for producing the evidence in
support of the charge is on the prosecution, and if the prosecution fails to
establish the guilt of the accused, the trial Magistrate or Judge will be
entirely within his rights to give the benefit of doubt to the accused. The
functions of an Inquiring Authority in a departmental proceeding are, however,
more active. His duty, on behalf of the disciplinary authority, is to find out
all the true facts about the charge. A Presenting Officer is appointed, to
assist the Inquiring Authority in presenting the facts in Support of the
Charge. Inquiring Authority may summon the listed or other unlisted witnesses,
if he considers that the evidence of such witnesses will materially assist in
establishing the true facts.
The
Inquiring Authority in a departmental proceeding, has no responsibility
whatever in the matter of prescribing a penalty on the charged officer and
should not in his report go into this question at all, though he may draw
attention to certain proved facts which may extenuate the guilt of the charged
officer. It is not expected, therefore, of an Inquiring Authority to launch
forth on an analysis of legal technicalities and judicial precedents.
The
only legal principles with which Inquiring Authorities are primarily concerned
are the principles of natural justice which basically are that (i) the charged
officer should be given a reasonable opportunity to present his case; (ii)
evidence against him should be taken in his presence; (iii) he should have a,
opportunity to cross-examine the witnesses produced in support of the charges
and (iv) he should be given an opportunity to produce his own witnesses and
documents. All other laws of procedure have been relaxed for departmental
enquiries. Even. the provisions of the Indian Evidence Act and the Criminal
Procedure Code, except in so far as they refer to the general principles of
natural justice already referred to, are not applicable to a departmental
enquiry. The principles of natural justice are already incorporated in the CCA
Rules and as long as the Inquiring Authority follows these rules, particularly
all the 23 sub-rules of rule 20, which lay down step by step, stage by stage
procedure, neither the disciplinary authority who has appointed him nor the law
courts are likely to find fault with the Inquiry.
The
Supreme Court of India, in the case of union of India Vs. Sardar Bahadur, 1972
SLR 355 SC, has clearly held that "a disciplinary Proceeding is not a
criminal trial and that the standard of proof required is that of
preponderance of probability and not proof beyond reasonable doubt". It
has been held by the Supreme Court in the case of Union of India Vs. H.C. Goel,
AIR 1964 SC 364 that a High Court under Article 226 of the Constitution should
not go into the question of sufficiency or adequacy of evidence in support of a
particular conclusion.,
The
emphasis in departmental inquiries is heavily on facts as the word
"Inquiry" itself signifies the main thrust of the Inquiring Officer
must be to inquire into all the facts either in favour of or against the
charged officer and the quality and excellence of his work will be judged not
by his ability to deal with legal technicalities but by his ability to bring
out and assess all the facts relevant to the charge and come to findings that
are based on formal logic as well as practical common sense. In doing so, while
he must give every opportunity to the charged officer under the principles of
natural justice and CCA Rules, he must also remember his basic responsibility
to the disciplinary authority.
When
the case for the disciplinary authority is closed, the Government Servant shall
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 Government servant
shall be required to sign the record. In a Departmental Inquiry in which the
charge is to be proved on the basis of preponderance of probability and the
emphasis is on true facts, the charged officer must indicate a coherent line of
defence giving his version of what the true facts are. Thus, there is no
obligation on the Inquiry Officer to examine any and every witness that the
charged officer may suggest.
Inordinate
delay in conducting the inquiry and in submitting the report is the bane of
administration. Hardship is caused to a public servant by delay in dealing with
a complaint against him. If an inquiry is started against a public servant on
the allegation of lack of integrity, he immediately comes under a cloud, and
even if subsequently he is cleared of the suspicion against him, the suspense
and anguish which he suffers virtually amounts to punishment. It is only fair
that all possible delay is avoided in taking the final decision even in a case
where the public servant is found guilty.
This
over-riding necessity for conducting and completing departmental inquiries
within a relatively short period of time is fully recognised and laid down in
the CCA Rules. If inquiries are conducted strictly according to these Rules, an
average inquiry not involving too many witnesses and documents, should take
between three (3) and four (4) months only. It is deplorable that those
provisions of the CCA Rules are honoured more in the breach than in observance,
and departmental inquiries even on petty charges are found to linger on for
years.
All
the Departments of Secretariat, Heads of Departments and District Collectors
are requested to keep in view scrupulously the above observations and bring to
the notice of all concerned for compliance.
The
receipt of this memo should be acknowledged.
G.S.R.C.V.
PRASAD RAO
Secretary
to Government (SER.)
