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Departmental Proceedings: Findings, Quantum of Punishment, Final Order, Appeal, Revision & Review

Findings are presented by the inquiry officer after the inquiry of the charge against the delinquent has been completed as part of the departmental proceedings initiated against him. Recording the inquiry officer�s findings and the reasons for his findings is absolutely essential for a valid departmental/managerial inquiry and is not a mere formality. Failure to record the findings on which the order of dismissal is based is a serious defect which will vitiate the enquiry. Khardah & Co. Ltd. V. Its Workmen, 1963 II LLJ 452

Findings must be based only on evidence (oral and documentary) adduced during the inquiry. It should rely only on facts which have passed in evidence which the accused has had an opportunity to refute, examine or rebut. Be careful in your inquiry and be objective and judicious when analyzing the evidence.

To draw conclusions as a rational and prudent person would after considering all the evidence, also noting who said it when and under what circumstances, whether what was said or done was consistent with the normal probabilities of human behavior. Remember that once signed, the findings become functus officio and you cannot make any changes to it.

State in the findings the relationship between the charge, evidence and conclusions after considering each article of charge separately. If the inquiry officer is of the opinion that any misconduct different from the original charge has been discovered in the course of the inquiry, he may record his findings of such misconduct, provided that the charged officer has admitted the facts on which such misconduct is based or had an opportunity of rebutting them.

Dos of Findings
  1. Findings should not be cryptic or evasive.
  2. The findings are not an investigative report.
  3. It is not for the investigating officer to propose punishment.
  4. Findings may be based on the testimony of a witness in isolation.
  5. A double standard should not be used when dealing with evidence.
  6. Findings not to be based on evidence recorded in another inquiry.
  7. Findings should not be based on unspecified records.
  8. Findings should be limited to the specific charge.
  9. The wording of the findings should be mild.

Don�ts of Findings
  1. Do not collect information from persons who have not been named as witnesses.
  2. Disregard the Presenting Officer's written communication if filed after the due date and receipt of his written communication by the charged officer.
  3. If you do not wish it to be excluded from the hearing, you must send a copy of it to the Charged Officer/Presenting Officer for an opportunity to file a rejoinder.
  4. Disregard any facts or evidence not presented during the inquiry.
  5. No weight should ever be given to conjecture, guesswork, whimsy, or your personal knowledge of a matter that is not otherwise recorded.
  6. Do not admit any additional witnesses if there is an inherent gap or defect in the evidence originally produced. Be careful in exercising this discretion.
  7. Never delay submitting the findings of the inquiry report, not more than six months.

Quantum of Punishment
Depending on the seriousness of the offense committed by the charged officer, the disciplinary authority has to decide on the type of punishment that will be imposed on him.

The rules enumerate the following two kinds of punishments under the Police Regulations of Bengal:

Minor Punishment

  • Censure (reprimand for improper conduct).
  • Extra drill
  • Extra fatigue duty
  • Confinement to quarters with or without punishment drill
  • Extra Guard, fatigue or other duties.

Major Punishment

  1. Dismissal, removal from service.
  2. Reduction in rank
  3. Withdrawal of sanctioned increment
  4. Withdrawal from any office with special emoluments
  5. Award of black marks

It must be remembered that the quantum of punishment is a very delicate question which needs to be decided by the competent authority, be it a judge presiding criminal court or disciplinary authority exercising disciplinary powers. The imposed punishment must be neither too excessive nor too mild. It must be fair, proper and reasonable; at the same time neither too harsh nor too indulgent. It must be either deterrent or reformative.

Final Order
After all the procedures have been completed, the disciplinary authority finally issues an order to impose punishment. Since the disciplinary proceedings under the Service Rules are quasi-judicial in nature, the Appellate Authority may confirm, reduce, increase or cancel the punishment or refer the matter to the authority which issued the impugned order with such direction as considered appropriate in the case. It can revise, review or modify an earlier order if it finds that the earlier order was inconsistent with the Constitution of India or a provision of law or was otherwise arbitrary or unjust.

When after the judgment of the Appellate Authority, the charged officer is not satisfied, he can file a petition for revision with the Revisional Authority as provided in the Service Rules. No review proceedings should be commenced until the statute of limitations has expired for an appeal or the disposal of an appeal if such an appeal has been preferred. The power of review will be exercised only because of:
  1. Material irregularities in the course of the appellate body's inquiry which, after exercising due diligence, were not known to the appellant or could not have been presented by him when orders were issued against him; or
  2. As a result of any mistake or error apparent on the face of the record. A request for revision should be handled in a manner consistent with how an appeal would be processed according to the established rules.

The right of review is not a right of appeal where all the questions decided are appealable, in the absence of a specific provision authorizing the authority to review the order passed in disciplinary proceedings, it is not permissible for the authority to review the order (State of Haryana vs Roshan Lal, AIR 1970 (P&H) 739). If such authority is so conferred, the designated authority shall exercise such authority within the limitation period.

The term review is used in two distinct senses, namely (1) procedural review which is either inherent or implied in a court or tribunal to set aside a manifestly erroneous order passed on a misapprehension; and (2) review on the merits if the error to be corrected is one of law and is apparent from the direct record.

When a manifest error is brought to the attention of the Tribunal, the Tribunal is obliged with grace to correct its error of law through a review of its original order/direction. Surjit Singh v. Union of India, AIR 1997 SC 2693 (2695): 1997 (77) FLR 41: (1997) 10 SCC 592

Remedies against the imposition of Penalty
A civil servant who is not satisfied with the decision of the disciplinary authority has the following remedies against the order passed against him:
  1. Constitutional Remedies:
    A Government servant who is a citizen of India is entitled to protection under the Constitution of India. Therefore, if any action is taken against him in violation of his constitutional rights, he can invoke the jurisdiction of the Supreme Court under Article 32 and the High Court under Article 226 of the Constitution of India. However, the petitioner will have to firstly move the State Administrative Tribunal before going to the High Court and then to the Supreme Court if he is a state government employee and will have to firstly move the Central Administrative Tribunal before going to the High Court and then to the Supreme Court if he is a central government employee.
  2. Appeal:
    The right to appeal is one of the fundamental rights and defenses of a delinquent employee. An employee may prefer an appeal to the concerned Appellate Authority as per the rules governing his service. As a rule, the appeal will be prioritized within 37 days from the date of delivery of the order to the government employee.
However, the appellate authority may grant the appeal even after the expiry of the said period of 37 days, if it is convinced that the appellant had sufficient reason for not filing the appeal in time. The appeal should be complete in all respects and should contain all material representations that may be relied upon. It should not contain any disrespectful or inappropriate language.

A copy of the appeal, which is complete in itself, shall be sent by the appellant to the authority which passed the impugned order. The same with its comments along with the relevant records shall be forwarded by the disciplinary officer to the appellant authority without delay.

In general, the appellate authority is the authority to which the authority issuing the order against which the appeal is filed is directly subordinate. The order passed by the appellate authority must be a speaking order. The appellate body must dispose of the appeal taking into account all the circumstances of the case in accordance with the rules governing the exercise of powers of the appellate authority.

Departmental Proceedings are Quasi-Judicial in Nature
Departmental proceedings are quasi-judicial in nature and as such it is necessary that an order in such proceedings passed by a disciplinary authority should have the attributes of a judicial order.
  • It should be a separate and reasoned order meeting legal requirements.
  • It therefore requires that the final order imposing punishment be a reasoned order clearly stating the points to be considered, the decisions thereon, and the reasons on which the decisions are based. The reasons should reveal a rational connection between the facts considered and the conclusions reached.
  • It also allows the charged officer to appeal or review the decision of the disciplinary authority to a higher administrative authority or to invoke the jurisdiction of the High Court or Supreme Court.

Important concepts in the union proceedings:
Quasi-judicial means ostensibly but not actually judicial. Quasi-judicial proceedings are proceedings conducted by administrative or an executive officer that is similar to a court proceeding, e.g., a hearing. Court can review decisions resulting from quasi-judicial proceedings.

Natural justice
Natural justice is identified with the two components of a fair hearing, which are the rule against bias and the right to a fair hearing. The term natural justice is nowhere used in the Constitution of India. However, the principles of natural justice are firmly enshrined in Article 14 and 21 of the Constitution.

The principle of natural justice can be suggested as follows:
  1. Tell the person what he did
  2. Hear Him
  3. Give Him the choice to defend Himself
While conducting the enquiry, the inquiry officer should record his findings and its reasons. He should refrain from recommending punishment and leave it to the discretion of the disciplinary authority. After all, he is just an inquiry officer. Disciplinary action may be taken if the misconduct against the charged officer is proved.

In deciding the nature of disciplinary action, the previous records of the employee, precedents, effects of actions on other employees, etc. must be considered. When the employee feels that the inquiry that has taken place was not right and the steps taken were unjustified, he must have a choice of appeal.

Preponderance of Probabilities
A word describing evidence that persuades a judge or jury to take one side as against the other in the course of litigation. In many states, criminal trials require proof beyond a reasonable doubt. But in civil trials, evidence is required only by preponderance of the evidence.

Article 311 of the Constitution of India

Article 311 of the Constitution of India places certain restrictions on the absolute power of the President or Governor to dismiss, remove, or reduce in rank an officer.

Article 311 reads as follows:
  1. No person who is a member of the Union or All India Civil Service Service or civil service in a State or holds a civil office within the Union or a State may be dismissed or removed by an authority subordinate to that by which he was appointed.
  2. No such person as aforesaid shall be dismissed or removed or reduced in rank except upon inquiry where he has been informed of the charges made against him and has been given a reasonable opportunity of being heard in connection with such charges.
  4. Police Regulations of Bengal, 1943

Written By: Md. Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565

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