1. What are the main precautions to be observed while drafting penalty orders?
While drafting penalty orders it must be ensured that the final orders are speaking orders and are free from ambiguity or vagueness.
2. What is a speaking order?
Speaking order may be defined as an order which contains not only the conclusions and directions but also the reasons that have led to the conclusions. It must not be confused with “oral orders” or “verbal directions”. Normally, courts used to reserve judgments when the arguments are concluded. Judgments will be delivered after some time lag because the court has to evaluate the evidence received and the submissions made by the parties. Contrary to this, the court may dictate orders in the court immediately on hearing the parties. Such orders are known as “Oral orders”. Although these are called Oral Orders, they are also reduced to writing and the copies of these orders are also supplied to the parties in due course of time.
The term “Verbal instructions” refers to the instructions issued by superior officers to their subordinates under urgent circumstances. CCS Conduct Rules 1964 requires that such instructions should be confirmed through written instructions as soon as possible.
3. What are the advantages of speaking orders?
- Disclosure guarantees consideration.
- Introduces clarity.
- Excludes or minimises arbitrariness.
- Satisfaction of the party
- Enables appellate forum to exercise control.
Travancore Rayons Vs Union of India (AIR 1971 SC 862)
4. What are the instances in the course of disciplinary
proceedings wherein speaking orders are to be issued?
Firstly, it must be understood that the speaking orders is not confined to disciplinary proceedings. All orders having an impact on the employees are to be speaking orders. For example, rejection of the request of an employee seeking stepping up of pay on par with junior should be through speaking orders. Disposal of a representation against supersession in the matter of promotion should also be through speaking orders.
It needs no emphasis that orders passed in the course of disciplinary proceedings have a far-reaching impact on the employee because they relate not only to career prospects and monetary issues but also have a bearing on the honour and reputation of the employee concerned. Thus, there are all the more stronger reasons for passing reasoned orders while conducting disciplinary proceedings.
An illustrative and non-exhaustive list of instances when speaking orders are required to be issued in the course of disciplinary proceedings is as under:
- Deciding the request of the Charged officer on defence documents and witnesses.
- Deciding on the request for change of Inquiring Authority.
- Deciding on the request of the charged officer for engagement of legal practitioner for the purpose of defence.
- Deciding on the request of the charged officer for engagement of a defence Assistant from out station.
- Deciding on the request for adjournment.
- Disposal of the appeal or review of revision application.
- Appeal against suspension.
- Appeal for enhancement of subsistence allowance.
- Decision regarding the treatment of period of suspension.
5. There are some orders which are based on subjective satisfaction of the disciplinary authority. Under such circumstances, what reason can be given in the order?
No doubt there are some areas where the decision is made based on the subjective satisfaction of the authority concerned as in the instances where the rule specifically and explicitly indicates in some areas that the authority may decide “having regard to the circumstances of the case. For example, the request for engagement of legal practitioner as defence assistant may be permitted by the Disciplinary Authority “having regard to the circumstances of the case”. Rule 14(8)(a). Similarly, Rule 16(1)(b) provides that for imposing a minor penalty, the provisions of rule 14(3) to 14(23) may be followed if “the disciplinary authority is of the opinion that such inquiry is necessary.”
Even in areas of exercise of discretionary powers, the orders should indicate application of mind. Besides, although some of the powers appear purely discretionary, there are guidelines for exercise of such powers. For example, MHA, DP&AR OM. No. 11012/7/83-Estt (A) dated the 23rd of July 1984 lays down a list of non-exhaustive list of circumstances wherein the discretion is to be exercised in favour of the delinquent employee. Decision making authority may consider stating that the delinquent official has not justified the engagement of legal practitioner and that the special circumstances (comparable to those mentioned in the above OM) do not exist in the present case. Two important factors in this regard are:
(a) There must be
evidence of application of mind
(b) Referring to, if not reproducing in the order, the submissions of the applicant and the relevant rule position will normally be a clear indication of application of mind.
6. What are the essential ingredients of a speaking order?
Speaking
order should necessarily contain the following:
(a)
Context:
The order should narrate the background of the case. As has been laid down in a
catena of decisions, law is not to be applied in vacuum. The circumstances that
have caused the issue of the orders have to be brought out clearly in the
introductory portion of the order. For example, if there is representation
about incorrect pay fixation, the speaking order disposing of the
representation should narrate how the anomaly has crept in, etc.
(b)
Contentions:
Rival submissions, where applicable, must be brought out in the order. For example,
the evidence led by the presenting officer in support of the charges and by the
charged officer for refuting the charges. Needless to add that there may be
cases wherein submissions may be unilateral as is the case of stepping up of
pay, etc. Even in the course of disciplinary proceedings, there may be some
instances wherein the concept of rival submission may not apply as in the case
of representation for change of Inquiring Authority or for engagement of legal practitioner
as defence assistant.
(c)
Consideration:
The order should explicitly evaluate the submissions made by the parties
vis-à-vis each other and in the light of the relevant statutory provisions.
Each submission by the parties must be considered with a view to decide about
its acceptability or otherwise.
(d)
Conclusions:
Outcome of the consideration is the ultimate purpose of the order. It must be
ensured that each conclusion arrived at in the order must rest on facts and
law.
7. What is the pre-caution to be taken in the matter of
specifying the penalty?
The penalty being imposed must be free from ambiguity and vagueness. Scope of penalty must be clearly brought out in the order without leaving any scope for interpretation or filling up the gap through arguments such as ‘by necessary implication’.
While
there cannot be any confusion with regard to orders of Dismissal, removal from
service and censure, care must be taken in the following types of penalties as shown
against each:
(a) Withholding of
promotion: such an order should clearly state the period for which promotion is
withheld.
(b) Recovery from
pay: This penalty can be imposed only when it has been established that the
Government servant was guilty of negligence or breach of orders or rules which
caused the loss. When ordering such recovery, the disciplinary authority should
clearly state as to how exactly the negligence was responsible for the loss.
The order should also specify the following:
(i) Total amount
to be recovered
(ii) number of instalments
(iii) Amount to be
recovered in each instalment
(c) Withholding of
increment – such orders should give the period for which increment is withheld
and whether the withholding will have the effect of postponing future
increments.
(d) Reduction to a
lower stage in the time scale of pay. Orders of this kind should indicate the
following:
(i) the date from
which the order will take effect;
(ii) the stage in
the time scale of pay in terms of rupees to which the pay of the Government
servant is to be reduced;
(iii) the period,
in terms of year and moths, for which the penalty will be operative;
(iv) Whether the
Government servant will earn increments of pay during the period of such
reduction; and
(v) Whether on the
expiry of such period, the reduction will or will not have the effect of
postponing the future increments of his pay.
(e) Reduction to a
lower time scale of pay, grade, post or service: such an order should cover the
following aspects:
(i) the lower time
scale of pay, grade, post or service and stage of pay in the said lower time
scale to which the Government servant is reduced;
(ii) the date from
which the order will take effect;
(iii) where the
penalty is imposed for a specified period, the period, in terms of years and
months, for which the penalty will be operative;
(iv) if the penalty is imposed for an unspecified period direction regarding conditions of restoration to the grade or posts or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service.
8. What is the deficiency if the order is not a speaking one and
what is its impact?
The following observations by the Apex Court in the case of Markand C. Gandhi Vs.Rohini M. Dandekar Civil Appeal No. 4168 of 2008 Decided On: 17.07.2008 highlights the inadequacy of non-speaking orders:
“4. The impugned order runs into 23
pages. Upto the middle of Page 10, the Committee has referred to cases of the
parties; from middle of Page 10 to middle of Page 11, issues have been
mentioned; from middle of Page 11 to the top of Page 22, the Committee has
referred to the evidence, oral and documentary, adduced on behalf of the
parties without discussing the same and recording any finding whatsoever in
relation to the veracity or otherwise of the evidence; and thereafter disposed
of the proceeding which may be usefully quoted hereunder: We have gone through
the records. The issues were framed on 18-8-1990. Issue No. 1 relates to a
threat given by the Respondent to the complainant on 8-6-1977. This issue is
not related to the professional misconduct and in this regard the complainant
has not submitted any documentary evidence to prove her stand. As far as the
issue No. 2 is concerned, this is a very important issue. The complainant has
submitted document in support of her contention and proved the issue. This fact
cannot be denied by oral version, as there is documentary record. As far as the
issue No. 3 is concerned, this is also proved by the complainant by her
evidence. Issue No. 4 relates to the
certificate issued by the Respondent. This has also been proved by the
complainant by documentary proof which is on record.
Likewise Issue No. 6 is also proved
by documentary proof. Issues Nos. 6 to 7 relate to one Mr. Vora, architect and
builder and Mr. B.S. Jain and the Respondent. The main issue in this
controversy is issue No. 8 i.e., whether the Respondent is guilty of
professional misconduct or other misconduct. In this respect it is the admitted
position before the Committee that some documents were already on record and
retained by the Respondent and the certificate issued by the Respondent with
regard to the property in question. It is also admitted position that in this
matter a compromise letter was filed by the parties earlier. We have heard the
arguments and we have also perused the documents. The complainant has proved
her allegations made in the complaint against the Respondent. The allegations
made are very serious. We are of the opinion that the Respondent has committed
professional misconduct and thus we hold him guilty of professional misconduct
and suspend him from practice as an advocate before any Court or authority in
India for a period of five years and we also impose a cost of Rs. 5,000/- to be
paid by him to the Bar Council of India which on deposit will go the Advocates
Welfare Fund of the Bar Council of India. If the amount of cost is not paid
within one month from the date of receipt of this order, the suspension will be
extended for six months more.
5. From a bare perusal of the
order, it would appear that, virtually, there is no discussion of oral or
documentary evidence adduced by the parties. The Committee has not recorded any
reason whatsoever for accepting or rejecting the evidence adduced on behalf of
the parties and recorded finding in relation to the misconduct by a rule of
thumb and not rule of law. Such an order is not expected from a committee
constituted by a statutory body like B.C.I.
6. We are clearly of the opinion
that the finding in relation to misconduct being in colossal ignorance of the
doctrine of audi alteram partem is arbitrary and consequently in infraction of
the principle enshrined in Article 14 of the Constitution of India, which make
the order wholly unwarranted and liable to be set aside. This case is a glaring
example of complete betrayal of confidence reposed by the Legislature in such a
body consisting exclusively of the members of legal profession which is
considered to be one of the most noble professions if not the most.
7. Accordingly, the appeal is
allowed, impugned order rendered by the Disciplinary Committee of the B.C.I, is
set aside and the matter is remitted, for fresh consideration and decision on
merits in accordance with law. Chairman of the B.C.I, will see that this case
is not heard by the Disciplinary Committee which had disposed of the complaint
by the impugned order and an altogether different Committee shall be
constituted for dealing with this case.
Thank you
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