Departmental action and conviction
Ref:- Lr.No.11018/7/75-AIS
(III), dated 8th March, 1976 from the Government of India, Cabinet Secretariat,
Department of P&AR, New Delhi.
Sub-rule (3) (a) of rule 19 of the Andhra Pradesh Civil Services (CCA) Rules, 1963, provides that the provisions of subrules (1) and (2) shall not apply where it is proposed to impose on a member of a service any of the penalties mentioned in rule 8 or rule 9 on the ground of conduct which has led to his conviction on a criminal charge. Instructions were issued in Memo.No.2598/65-2,General Administration (Services.C) Department, dated 25- 9-1965, that if a Government employee is removed or dismissed or reduced in rank after complying with the requirements of article 311 (2) of the Constitution of India or of the provisions of rule 19(2) of the Andhra Pradesh Civil Services (CCA) Rules, then the order of removal, dismissal or a reduction in rank is not effected by his acquittal in a Criminal court, if he is prosecuted in addition to the departmental action taken against him. If however, a Government employee is removed or dismissed or reduced in rank, solely on the ground of conduct which led to his conviction on a criminal charge, without complying with the requirements of the aforesaid article or rule and if his conviction is eventually set aside by the appellate court, or by the High Court, in revision, then the order of removal, dismissal or reduction in rank, as the case may be, cannot stand and that order will have to be reviewed. According to rule 13(4) of the Andhra Pradesh Civil Services (CCA) Rules, 1963, where a penalty of dismissal, removal or compulsory retirement, from service imposed upon a member of a service is set aside, or declared or rendered void, in consequence of or by a decision of a court of law, and the authority competent to impose the penalty on a consideration of the circumstances of the case, decides immediately thereafter to hold a further inquiry against him on the allegation on which the penalty of dismissal, removal or compulsory retirement was originally imposed, the member of the service shall be deemed to have been placed under suspension by the authority competent to impose suspension from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders.
2. The Government of India have issued self-contained instructions regarding action to be taken in cases where Government servants are convicted on a Criminal charge or where an appeal/revision in a higher court succeeds. Keeping them in view, the following instructions are issued:-
(1) The disciplinary
authority may, if it comes to the conclusion that an order imposing a penalty
on a Government servant on the ground of conduct, which had led to his
conviction on a criminal charge should be issued, pass such an order without
waiting for the period of filing an appeal, or, if an appeal has been filed,
without waiting for the decision in the first court of appeal (Standard Form I
for such an order is annexed). Before such an order is passed the Andhra
Pradesh Public Service Commission should be consulted, where such consultation
is necessary.
(2) (a) where an appeal or
a revision in a higher court i.e., the court higher than the first court of
appeal, against conviction, succeeds and the Government servant is acquitted
the order imposing a penalty on him on the basis of conviction, which no longer
stands, become liable to be set aside. A copy of the Judgement of the higher
court should, therefore, be immediately procured and examined with a view to
decide-
(i) whether the acquittal
should be challenged in a still higher court, or
(ii) whether, despite the
acquittal, the facts and the circumstances of the case are such as to call for
a departmental action against the Government servant on the basis of the
misconduct on which he was previously convicted.
(b) If it is decided to
take the matter to a still higher court under item (i) above, action to
institute proper proceedings should be taken with the least possible delay, and
the order imposing penalty need not be set aside during the pendency of such
proceedings. If, however, it is considered expedient that the Government
servant should not be allowed to discharge his duties during the pendency of
such proceedings, he may be placed under suspension as soon as he reports to
duty after his acquittal by the court of appeal.
(c) If, on the other hand,
it is decided that departmental action may be taken under item (ii) above, a
formal order should be made,
(i) Setting aside the order
imposing the penalty on the basis of conviction; and
(ii) Ordering such
departmental inquiry
In case where the penalty
imposed on the basis of the conviction was dismissal, removal or compulsory
retirement from service, the order should also state, that under rule 13(4) of
the Andhra Pradesh Civil Services (CCA) Rules, 1963, the Government servant is
deemed to be under suspension with effect from the date of dismissal, removal
or compulsory retirement from service.
(3) For appreciating
properly the scope and implication of the term "on the basis of the
misconduct on which he was previously convicted" occurring in
sub-para(2)(a)(ii) above, the point to be taken note of is that one identical
set of facts and allegations may be sufficient to constitute a criminal
offence, as well as misconduct not amounting to criminal offence, but
punishable under the Andhra Pradesh Civil Services (CCA) Rules, or similar
other rules. If the facts or allegations had come to be examined by a Court of
competent jurisdiction and the court has given a finding that the allegations
are not true, then it is not permissible to hold a departmental inquiry in
respect of a charge based on the same allegations. If on the other hand, the
Court had merely expressed a doubt as to the correctness of the allegations
then there may be no objection to hold a departmental inquiry on the same
allegations, if better proof than what was produced before the Court or was
then available is forthcoming. Then again, if the court has held that the
allegations are proved but do not constitute the criminal offence with which
the Government servant is charged, then also there would be no objection to
hold a departmental inquiry on the basis of the said allegations if such proved
allegations are considered good and sufficient reason for taking disciplinary
action. So also, it is permissible to hold a departmental inquiry after the
acquittal in respect of a charge which is not identical with or similar to the
charge in the criminal case, and is not based on any allegations, which have
been negatived by the criminal court. Furthermore, where an allegation has not
been examined by a court of law, but it is considered good and sufficient
reason for taking disciplinary action, there is no bar to taking such action.
(4) In case, where neither
of the courses mentioned, in sub-para (2) is followed, a formal order should be
issued setting aside the previous order imposing the penalty
