CCA Constitution Inquiry
• 311-Dismissal, removal or reduction in rank of person employed in civil capacities under the Union or a State
(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall 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 after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
•
Provided that where it is proposed after such
inquiry to impose upon him any such penalty, such penalty may be imposed on the
basis of the evidence adduced during such inquiry and it shall not be necessary
to give such person any opportunity of making representation on the penalty
proposed:
Provided further that this clause shall
not apply:-
(a) where a person is dismissed or removed or reduced in rank on the ground of
conduct which has led to his conviction on a criminal charge :
or
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that
for some reason, to be recorded by that authority in writing, it is not
reasonably practicable to hold such inquiry; or
(c) Where the President or the Governor, as the case may be, is satisfied that
in the interest of the security of the State it is not expedient to old such
inquiry.
• 311(3): If, in respect of any such person as aforesaid, a question arises whether it is reasonably practicable to hold such inquiry as is referred to in clause(2),the decision thereon of the authority empowered to dismiss or remove such person or to reduce him in rank shall be final.
• Scope of clause-1
Application of this clause on two conditions:-
– Person dismissed or removed is a member of civil service or holds a civil post under the union or state;
– That such termination is by way of punishment which amounts to ‘dismissal’ or ‘removal’
•
Appointing authority-Rule.2(a)
of CCS(CCA) Rules,1965
Appointing authority in relation to a G.S means:-
• A.A has to be located with reference to the present post and not the post in which misconduct was committed.
• Find out the A.A of present post( as per rules/orders);
• Find out the authority who actually appointed him.
A.A for the purpose of disciplinary action will be highest of (b) & (c)
• Procedure on conviction in criminal case
• Duty of the Government servant, to inform his office of his conviction. Failure, is misconduct.
• Action by D.A to be taken on conviction by first court. No need to wait for the results of appeal.
• Suspension of sentence or release on bail no bar to action.
• If finally acquitted on appeal, order has to be revised.
• Provision should not be invoked in petty cases of Rs.2000 fine/summary/ordinary conviction.
• Penalty under relevant rules after conviction doesn't amount to double jeopardy
• Even if sentence remitted under sec.4 of the Probation of Offender’s Act, 1958, inquiry can be dispensed with.
• Penalty imposed is subject to judicial review.
• Steps to be taken by D.A in conviction in criminal case
• Obtain copy of the judgment
• Check whether charges serious enough to warrant Departmental action
• If D.A intends to impose penalty no enquiry is required
• D.A to tentatively decide the penalty and issue show cause notice to employee
• Consult UPSC/CVC, if necessary
• Quantum of punishment to commensurate with the gravity of offence.
• Dismissal or removal only in case of conviction on grounds of moral turpitude.
• Proviso (b)-Not reasonably practicable to hold Inquiry
• Requirements of the proviso:
– The holding of inquiry should be ‘reasonably not practicable’ and not impracticable.
– ‘Reasonably not practicable’ means, in the opinion of a reasonable man taking a reasonable view.
– View has to be personally formed by the Disciplinary Authority.
– Reasons are to be recorded in writing.
– When it should not be resorted?
• Should not be resorted to avoid holding inquiry; or
• Because the Department’s case is weak and must fail.
• Mere anxiety to take drastic or swift action however expedient
• When it should be resorted to?
• Government servant/ his associates terrorizes, threatens or intimidates
– Witnesses
– Disciplinary authority / Inquiry authority or
– Members of their family
• Atmosphere of violence or general indiscipline and insubordination prevails.
• D.A is not bound to suspend the inquiry and wait for the normalcy to return.
• However for appeal/ revision may wait for reasonable length of time.
• Reasons can arise even during the course of inquiry.
• Drafting and issue of the final order
• The final order should:-
– Refer to clause (b) of the second proviso and/ or statutory rule;
– Mention clearly that Disciplinary Authority has personally formed the opinion to dispense with inquiry;
– Contain the reasons if there is no objection;
– Mention consultation with UPSC;
– Be a speaking order regarding quantum of punishment
– Be published in the Gazette or one or two leading Dailies if cannot be served personally or thru normal channels
•
Clause (c) Second proviso
Security of State [Rule 19(3)]
• Only president (or Governor) can take action under this proviso.
• ‘Security of State’ not restricted to security of entire country but could be part of a state also.
• May not be armed rebellion or revolt but could be related to state secrets etc.
• May be open or clandestine.
• Reasons not to be recorded in the order.
• Consultation with UPSC before making order.
• Judicial review-satisfaction should not be vitiated by wholly extraneous or irrelevant consideration