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Recorded.
Copy of Office Memorandum No.134/20/68-AVD dt.28-8- 1968 from the Government of India, Ministry of Home Affairs, New Delhi, addressed to all Ministries of the Government of India.
A question has arisen whether past bad record of service of an officer can be taken into account in deciding the penalty to be imposed on the officer in disciplinary proceedings, and whether the fact that such record has been taken into account should be mentioned in the order imposing the penalty. This has been examined in consultation with the Ministry of Law. It is considered that if previous bad record, punishment etc. of an officer is proposed to be taken into consideration in determining the penalty to be imposed, it should be made a specific charge in the charge sheet itself, otherwise any mention of the past bad record in the order of penalty unwittingly or in a routine manner, when this had not been mentioned in the charge sheet, would vitiate the proceedings, and so should be eschewed.
"We held that it is incumbent upon the authority to give the Government servant at the second stage reasonable opportunity to show cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation ....
In the present case the second show cause notice does not mention that the Government intended to take his previous punishments into consideration in proposing to dismiss him from service. On the contrary, the said notice put him on the wrong scent, for it told him that it proposed t0 dismiss him from service as the charges proved against him were grave ... the order of dismissal.... indicate that the show cause notice did not give the only reason which influenced the Government to dismiss the respondent from service. This notice clearly contravened the provisions of Art. 311 (2) of the Constitution as interpreted by Court".
These
observations were made by the Supreme Court in the context of the provisions of
Article 311 (2) of the Constitution before its amendment by the Constitution
(Fifteenth Amendment) Act, 1963. Under the amended Article, at the stage of
show-cause notice, the Government servant has to be given a reasonable
opportunity of making representation on the penalty proposed but only on the
basis of evidence adduced during the enquiry. This would indicate that at the
second stage, the procedure should be limited only to the proposed penalty on
the basis of the proved charges and additional material in the form of past bad
record etc. cannot be introduced. If such matter is to be introduced, the
Government servant must have a right to make his representation on those
matters and for that purpose to call for confidential record and even witnesses
to establish mitigating circumstances like his subsequent good conduct. This
will be contrary to amended Article 311 (2) which clearly limits the right of
representation "only on the basis of evidence adduced during such
enquiry". This cannot be one-sided restriction and presupposes that the
penalty is proposed only on the basis of the charges inquired into, without any
additional factors being taken into consideration. Accordingly, if past bad
record is proposed to be taken into account in determining the penalty to be
imposed, it should be made subject matter of a specific charge in the charge
sheet itself. If it is not so done, it cannot be relied upon after the enquiry
is closed and the report is submitted to the disciplinary authorities, and/or
at the time of imposition of penalty.
OPEN - CCA Rules - References (open)
