(6)        Provision in the rules of public undertaking enabling disciplinary action against direct recruits for acts committed prior to their recruitment :-          

It has been recommended by the Joint Conference of the Central Bureau of Investigation and the State Anti-Corruption officers held in  November, 1965, that a provision should be made in the rules of public sector undertakings which would enable them to take disciplinary action against their employees appointed through direct recruitment, for acts done by them in their previous or earlier employment.  After a careful consideration of this recommendation, Government have come to the conclusion that an employer is not precluded from taking action against an employee in respect of misconduct committed before his employment if the misconduct was of such a nature as has rational connection with his present employment and renders him unfit and unsuitable for continuing in service.  A provision in the Discipline Rules that penalties can be imposed for �good and sufficient reasons� as in rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, would be adequate authority for taking action in respect of misconduct of the nature referred to above.  When such action is taken, the charge should specifically state that the misconduct alleged is such that it renders him unfit and unsuitable for continuance in service.

Ministry of Industry etc. are requested to bring the above position to the notice of all public sector undertakings under their control and request them to make a provision in their Discipline Rules, so as to enable them to impose penalties on their employees for �good and sufficient reasons� as in rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, if such a provision does not already exist.

[MHA OM No. 39/1/67-Ests.(A) dated the 21st February, 1967].

(7)        Promotion of employees on whom any penalty has been imposed �  

The Staff Side of the National Council, at its meeting held on 27th and the 28th Januaray,1971 raised the following points :-

(i)         �Censure� should not be a bar to eligibility to sit for a departmental/promotional examination or for promotion;

(ii)        Where the responsibility of an employee for any loss is indirect, he should not be debarred from being considered for promotion during the period of recovery of the loss; and

(iii)       A distinction should be made between stoppage of increments and reduction to a lower stage of the pay scale and in the former type of cases, the employees should not be debarred from being considered for promotion.

2.        As regards the first point, under existing instructions, every person eligible for promotion and in the field of choice has to be considered for promotion.  The fact of the imposition of the minor penalty of censure on a Government servant does not by itself stand against the consideration of such person for promotion, as his fitness for the promotion has to be judged, in the case of promotion by seniority, on the basis of an overall assessment of his service record, and in the case of promotion by selection on merit, on the basis of his merit categorisation which is again based upon an overall assessment of his service record.  So far as the eligibility of a Government servant who has been awarded the penalty of censure, to appear at a departmental/promotional examination is concerned, the same principles would apply, viz. that he cannot, merely because of the penalty of censure, be debarred from appearing at such an examination.  In case, however, the rules of such an examination lay down that only those eligible persons can be allowed to appear at the examination who are considered to be fit for the purpose, the fitness of an eligible candidate, who has been awarded the penalty of censure, to appear at the examination has to be considered on the basis of an overall assessment of his service record and not merely on the basis of the penalty of censure.

3.        As regards the other two points mentioned in paragraph 1 above, while it is not possible to lay down any hard and fast rules in this regard, and it is for the competent authority to take a decision in each case having regard to its facts and circumstances, it is considered necessary to reiterate the existing instructions on the subject.  Recovery from the pay of a Government servant of the whole or part of any pecuniary loss caused by him to Government by negligence or breach of orders, or withholding of increments of pay, are also minor penalties laid down in rule 11 of the CCS (CCA) Rules.  As in the case of promotion of a Government servant, who has been awarded the penalty of censure, the penalty of recovery from his pay of the loss caused by him to Government or of withholding his increment(s) does not stand in the way of his consideration for promotion though in the latter case promotion is not given effect to during the currency of the penalty.  While, therefore, the fact of the imposition of such a penalty does not by itself debar the Government servant concerned from being considered for promotion, it is also taken into account by the Departmental Promotion Committee, or the competent authority, as the case may be, in the overall assessment of his service record for judging his suitability or otherwise for promotion or his fitness for admission to a departmental/promotional examination (where fitness of the candidates is a condition precedent to such admission).

[Cabinet Sectt.(Department of Personnel) OM No. 21/5/70-Ests.(A) dated the 15th May, 1971].

(7A)  

The attention of the Ministry of Finance etc. is invited to MHA OM No. 39/3/59-Estt.(A) dated 31.08.1960, OM No. 7/28/63-Estt.(A) dated 22.12.1964 and OM No. 22011/3/77-Estt.(A) dated 14.07.1977 [since revised and consolidated vide OM No. 22011/4/91-Estt.(A) dated 14.09.1992] which lay down the guide-lines for following the �sealed cover� procedure and for granting benefits with retrospective effect on the �complete exoneration� of the official concerned.  The scope of the term �complete exoneration� was very wide, resulting in denial of benefits even to those who had not been awarded any of the prescribed penalties as a result of disciplinary proceedings but were only issued a warning.  There is also in  vogue the practice of issuing �recordable warning� to Government employees which affect their career prospects.  The matter has, therefore, been examined carefully and the following decisions have been taken :-

(i)         As clarified in the Ministry of Home Affairs OM No. 39/21/56-Estt.(A) dated 13.12.1956, warning is administered by any authority superior to a Government employee in the event of minor lapses like negligence, carelessness, lack of thoroughness, delay etc.  It is an administrative device in the hands of superior authorities for cautioning the  Government employees with a view to toning up efficiency and maintaining discipline.  There is, therefore, no objection to the continuance of this system.  However, where a copy of the warning is also kept in the Confidential Report dossier, it will be taken to constitutes an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing instruction relating to communication of adverse remarks and consideration of representations against them.

(ii)        Where a departmental proceeding has been completed and it is considered that the officer concerned deserves to be penalised, he should be awarded one of the recognised statutory penalties as given in Rule 11 of the CCS (CCA) Rules, 1965.  In such a situation, a recordable warning should not be issued as it would for all practical purposes, amount to a �censure� which is a formal punishment and which can only be awarded by a competent disciplinary authority after following the procedure prescribed in the relevant disciplinary rules.  The Delhi High Court has, in the case of Nadhan Singh Vs. Union of India also expressed the view that warning kept in the CR dossier has all the attributes of �censure�.  In the circumstances, as already stated, where it is considered after the conclusion of disciplinary proceedings that some blame attached to the officer concerned which necessitates cognizance of such fact the disciplinary authority should award the penalty of �censure� at least.  If the intention of the disciplinary authority is not to award a penalty of �censure�, then no recordable warning should be awarded.  There is no restriction on the right of the disciplinary authority to administer oral warnings or even warnings in writing which do not form part of the character roll.

(iii)       Where the departmental proceedings have ended with the imposition of a minor penalty, viz, censure, recovery of pecuniary loss to the Government, withholding of increments of pay and withholding of promotion, the recommendation of the DPC in favour of the employee, kept in the sealed cover, will not be given effect to.  But the case of the employee concerned for promotion/confirmation may be considered by the next DPC when it meets after the conclusion of the departmental proceedings.  If the findings of the DPC are in favour of the employee, he may be promoted in his turn if the penalty is that of �censure� or �recovery of pecuniary loss caused to the Government by negligence or breach of orders�,  In the case of employees who have been awarded the minor penalty of �withholding of increments� or �withholding of promotion� promotion can be made only after the expiry of the penalty.

(iv)       If a recordable warning has been issued to an officer as a result of disciplinary proceedings before the issue of this Office Memorandum and the case of the officer concerned for promotion is still under consideration, he should be treated as having been �censured�.  The officer will also have the right of representation against such warning and such representation shall be dealt with by the competent authority as if it were an appeal under the relevant disciplinary rules.

[Deptt. of Peronnel & A.R. O.M. No. 22011/2/78-Estt.(A) dated the 16th February, 1979]

(8)        Scope of penalty of reduction in rank-Supreme Court judgment in cases of Shri Nayadar Singh & Shri M.J. Ninama  Vs. Union of India (Civil Appeal No. 3003 of 1988 and 889 of 1988) :-  

Clause (vi) of Rule 11, which enumerates the penalties that may be imposed on a Government servant after following the prescribed procedure, provides as under :-

�(vi) reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant, to the time scale of pay, grade, post or Service from which he was reduced with or without further directions regarding conditions of the restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service.�

2.          The judgment cited above related to two cases in one of which a Government servant who was initially recruited as a Postal Assistant and was later promoted as UDC, while working as UDC, was reduced in rank, as a measure of penalty, to a post of LDC, which was lower in rank than the post of Postal Assistant to which he had been recruited initially.  In the second case, disciplinary authority had imposed a penalty of reduction in rank reducing an officer from the post of Assistant Locust Warning Officer to which he was recruited directly to that of Junior Technical Assistant.  The Supreme Court, while setting aside the penalty imposed in both cases have held that a person appointed directly to a higher post, service, grade or time-scale of pay cannot be reduced by way of punishment to a post in a lower time scale, grade, service or to post which he never held before.

3.          The rulings given by the Supreme Court in the above cases may be kept in view by all disciplinary authorities while deciding cases in future.  However, past cases need not be reopened in the light of the aforesaid judgment.

           [Deptt. of Pers. &  Trg. OM No. 11012/2/88-Estts. Dated 02.02.89]

(9)        Penalty of reduction to a lower stage in the time scale of pay for a period not exceeding three years without cumulative effect and not adversely affecting his pension.

A new clause (iii a) was inserted in Rule 11 of CCS (CCA) Rules, 1965 vide this Department�s notification No. 11012/4/86-Estt.(A) dated 13.07.1990.  As a result, reduction to a lower stage in the time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting the pension of the Government servant who has been punished, was introduced as another minor penalty.

2.          A doubt has been raised that the minor penalty introduced vide clause (iii a) is also covered under clause (v) of Rule 11 and, therefore, can in some circumstances be treated as a major penalty.  It is clarified that since the penalty to the extent mentioned in clause (iiia) of Rule 11 has been carved out of clause (v) of Rule 11 specifically, it does not constitute a major penalty under clause (v) of Rule 11.  To ensure that this is clear, clause (v) of Rule 11 is being amended and a notification is being issued separately.

           [Deptt. of Pers. & Trg. OM No. 11012/4/86-Estt.(A) dated 28.05.92]

(10)      Action against Government servants to be taken if they are later found ineligible or unqualified for their initial recruitment -  

Attention of the Ministries/Departments is invited to Ministry of Home Affairs OM No. 39/1/67-Ests.(A) dated 21.02.1967 wherein it was clarified that departmental action can be taken against Government servant in respect of misconduct committed before his employment.  Attention is also invited to the Ministry of Home Affairs OM No. 5/1/63-Estt. (D) dated 30.04.1965 wherein Ministries/Departments were requested to make use of the provision of �warning� inserted in the Attestation Form for taking action against Government servant furnishing false information at the time of appointment.

2.          A question has now arisen as to whether a Government Servant can be discharged from service where it is discovered later that the Government servant was not qualified or eligible for his initial recruitment in service.  The Supreme Court in its judgment in the District Collector, Vizianagram vs. M. Tripura Sundari Devi (1990(4) SLR 237 went into this issue and observed as under :-

�It must further be realized by all concerned that when an advertisement mentions a particular qualification and an appointment is made in disregard of the same, it is not a matter only between the appointing authority and the appointee concerned.  The aggrieved are all those who had similar or better qualifications than the appointee or appointees but who had not applied for the post because they did not possess the qualifications mentioned in the advertisement.  It amounts to a fraud on public to appoint a person with inferior qualifications in such circumstances unless it is clearly stated that the qualifications are relaxable.  No Court should be a party to the perpetuation of the fraudulent practice.�

The matter has been examined in consultation with the Ministry of Law and Justice and it has now been decided that wherever it is found that a Government servant, who was not qualified or eligible in terms of the recruitment rules etc, for initial recruitment in service or had furnished false information or produced a false certificate in order to secure appointment, he should not be retained in service.  If he is a probationer or a temporary Government servant, he should be discharged or his services should be terminated.  If he has become a permanent Government servant, an inquiry as prescribed in Rule 14 of CCS (CCA) Rules, 1965 may be held and if the charges are proved, the Government servant should be removed or dismissed from service.  In no circumstances should any other penalty be imposed.

3.          Such discharge, termination, removal or dismissal from service would, however, be without prejudice to the right of the Government to prosecute such Government servants.

[Deptt. Of Personnel & Training OM No. 11012/7/91-Estt. (A) dated 19.05.1993]

(11)      Rule 11 (iii) of the CCS (CCA) Rules, 1965 � Recovery of pecuniary loss caused by a Government servant � Clarifications �  

References are being received in this Department seeking clarification whether the instructions contained in DGP&T Letter No. 3/312/70-Disc-I dated 17.08.1971 are applicable to Government servants serving in other Ministries/Departments also.

2.          The DGP&T�s instructions mentioned above provide that recovery from the pay of a Government servant as a punishment for any pecuniary loss caused by him to the Government by negligence or breach of orders, should not exceed 1/3 of his basic pay (i.e. excluding dearness pay or any other allowances) and should not be spread over a period of more than three years.  However, no such limits have been prescribed in the statutory rules i.e. in Rule 11 (iii) of the CCS (CCA) Rules, 1965.

3.          The matter has been examined in consultation with the Ministry of Law.  It was observed that the DGP&T instructions prescribed the procedure to effect the recovery of the amount levied as penalty in terms of Rule 11 (iii) of the CCS (CCA) Rules, 1965 and these procedural instructions cannot amend, supercede, or modify the substantive provisions of Rule 11 (iii) of the CCS (CCA) Rules, 1965.  While it is expected that in imposing the penalty of recovery of pecuniary loss the disciplinary authority should not display such severity that a Government servant suffers hardship disproportionate to his negligence/misconduct that led to the loss, it is not necessary to fix a rigid limit for the purpose of such recovery.  The DGP&T instructions would, therefore, be treated as unwarranted.  Therefore, the implication of this OM is to recover the entire loss from the delinquent official but the recovery may be spread over till entire loss is discovered.

[Deptt. Of Personnel & Training OM No. 11012/1/2000-Estt. (A), dated 6th September, 2000]

(12)  Imposition of penalty of reduction to a lower time scale of pay, grade, post or service �

Clause (vi) of rule 11 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides for the imposition on a Government servant of a penalty of reduction to lower time scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant to the time-scale of pay, grade, post or Service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced, and his seniority  and pay on such restoration to that grade, post or Service.

2.         The Staff side of the National Council (JCM) has made a request that the penalty of reduction to lower time scale of pay in the said clause (vi) should not be imposed on the Charged Officer on a permanent basis on the ground that it is harsh and does not allow the employee to be promoted to the next grade even if he improves his working and the Competent Authority later finds him fit for promotion.  The Staff Side has suggested that the penalty in question should be for a specified time-period with clear directions regarding restoration to the higher grade.

3.         The existing rule position is that the imposition of the penalty of reduction to a lower grade, post or service is normally a bar to the promotion to a higher grade, post or service (from which he was reduced) unless the conditions of restoration are specified.  It is open to the Disciplinary Authority to prescribe the conditions of restoration to the higher grade in deserving cases. 

4.         The minor penalties and major penalties in rule 11 of the CCS (CCA) Rules, 1965 have been graded in order of the severity to be awarded to a charged Government servant in proportion to the gravity of misconduct/negligence which has given rise to the charge-sheet.  While the major penalties of compulsory retirement, removal from service and dismissal from service have been included as clauses (vii), (viii) and (ix) of the said rule 11, the penalty reduction to a lower time scale of pay, grade, post or Service has been incorporated therein as clause (vi).  This clause also provides that while imposing this penalty, the Disciplinary Authority or the Appellate/Revision Authority is also required to indicate in the penalty order whether or not the individual charged Government servant would be eligible for restoration to the grade/post or Service from which he was reduced and his seniority and pay on such restoration and the conditions for such restoration.  It will, therefore, be seen that the penalty has been provided to be awarded to an individual who may not be sent out of Government service (through dismissal/removal etc.) but who needs to be given a very severe penalty in view of the gravity of his misconduct. 

5.            Attention in this connection is also invited to the Government of India, MHA O.M. No. 9/13/92-Estt.(D) dated 10.10.1962 and No. 9/30/63-Estt. (D) dated 07.02.1964 which stipulates that an order imposing  the penalty of reduction to a lower service, grade or post or to a lower time-scale should invariably specify the period of reduction unless the clear intention is that the reduction should be permanent or for an indefinite period.  These instructions also indicate the manner in which the order should be framed when the reduction is for specified period of indefinite period.  In case the intention of the Competent Authority is to award the penalty of reduction on permanent basis, the same may be specifically stated in the order so that the intention is conveyed to the Government servant in unambiguous terms and he is afforded full opportunity for submission of his appeal as provided in the rules.

[DOPT OM No. 11012/2/2005-Estt. (A), dated 14th May, 2007]

12.      Disciplinary Authorities

(1)       The President may impose any of the penalties specified in Rule 11 on any Government servant.

(2)       Without prejudice to the provisions of sub-rule (1), but subject to the provisions of sub-rule (4), any of the penalties specified in Rule 11 may be imposed on -

(a)               a member of a Central Civil Service other than the General Central Service, by the appointing authority or the authority specified in the schedule in this behalf or by any other authority empowered in this behalf by a general or special order of the President;

(b)               a person appointed to a Central Civil Post included in the General Central Service, by the authority specified in this behalf by a general or special order of the President or, where no such order has been made, by the appointing authority or the authority specified in the Schedule in this behalf.

(3)        Subject to the provisions of sub-rule (4), the power to impose any of the penalties specified in Rule 11 may also be exercised, in the case of a member of a Central Civil Services, Group �C� (other than the Central Secretariat Clerical Service), or a Central Civil Service, Group �D� ,-

(a)              if he is serving in a Ministry or Department of the Government of India, by the Secretary to the Government of India in that Ministry or Department, or

(b)        if he is serving in any office, by the head of that office, except where the head of that office is lower in rank than the authority competent to impose the penalty under sub-rule (2).

(4)       Notwithstanding anything contained in this rule -

(a)        except where the penalty specified in clause (v) or clause (vi) of Rule 11 is imposed by the Comptroller and Auditor-General on a member of the Indian Audit and Accounts Service, no penalty specified in clause (v) to (ix) of that rule shall be imposed by any authority subordinate to the appointing authority;

(b)        where a Government servant who is a member of a Service other than the General Central Service or who has been substantively appointed to any civil post in the General Central Service, is temporarily appointed to any other Service or post, the authority competent to impose on such Government servant any of the penalties specified in clauses (v) to (ix) of Rule 11 shall not impose any such penalties unless it has consulted such authority, not being an authority subordinate to it, as would have been competent under sub-rule (2) to impose on the Government servant any of the said penalties had he not been appointed to such other Service or post;

(c)         in respect of a probationer undergoing training at the Lal Bahadur Shastri National Academy of Administration, the Director of the said Academy shall be the authority competent to impose on such probationer any of the penalties specified in clauses (i) and (iii) of rule 11 after observing the procedure laid down in rule 16.

EXPLANATION I.           For the purposes of clause (c), 'probationer' means a person appointed to a Central Civil Service on probation.

EXPLANATION II.         Where a Government servant belonging to a Service or holding a Central Civil post of any Group, is promoted, whether on probation or temporarily to the Service or Central Civil post of the next higher Group, he shall be deemed for the purposes of this rule to belong to the Service of, or hold the Central Civil post of, such higher Group.

Government of India�s decision :

(1)   Officers performing current duties of a post cannot exercise Statutory powers under the Rules :- 

An officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax Act) or Rules, Regulations and Bye-Laws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules etc.)

[MHA OM No. 7/14/61-Ests. (A) dated 24th January, 1963].

(2)     Powers delegated to Chief Commissioner, Andaman & Nicobar Islands :-  

In pursuance of sub-rule (2) of rule 12 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 the President empowers under clause (a) of, and specifies under clause (b) of, that sub-rule the Chief Commissioner, Andaman and Nicobar Islands, for the purpose of imposition of the penalties specified in clause (i), clause (ii) and clause (iii) of rule 11 of the said rules on :-

(a)        any member of Central Civil Service Class I, other than the General Central Service.

(b)        any person appointed to a Central Civil Post Class I included in the General Central Service serving under the Andaman and Nicobar Islands Administration.

[MHA Memo No. F.7/16/64-Ests.(A) dated the 30th may, 1964].

(3)       Clarification about rules 12, 14 etc.

Several points relating to rules 12, 14, 15 and 29 of CCS (CCA) Rules, 1965, are being frequently referred to Home Ministry for clarification.  These points are indicated below and the clarification given against each.

 

  Points raised

Classification

1.

(a)  In cases where the disciplinary authority is the President, whether the case should be shown to the Minister before disciplinary proceedings are initiated.

(a)   Having regard to the Transaction of Business Rules, it is necessary that in cases where the disciplinary authority is the President, the initiation of the disciplinary proceedings should be approved by the Minister.

 

(b)  Whether it is necessary to show the file to the Minister every time before formal orders are issued in the name of the President, under Rules 14 (2), 14(4), 14(5) etc. of the CCS (CCA) Rules?  

(b)  It would be sufficient if Minister�s orders are obtained for taking action ancilliary to the issue of the charge sheet at the stage when the papers are put up to him for initiation of disciplinary proceedings.  However formal orders of the Minister should be obtained at the stage of show cause notice under Rule 15 (4) (i) (b) and at the stage of issuing final orders imposing penalty under Rule 15 (4) (iii).

2.

What happens to the disciplinary proceedings started by a disciplinary authority (A) in respect of a Government servant when the latter is transferred to the jurisdiction of another disciplinary authority (B) even though the said Government servant continues to be in the same service?

In such cases it is not necessary for disciplinary authority (B) to start de novo proceedings by framing and delivering fresh articles of charge to the concerned official.  He can carry on with the enquiry proceedings at the point where the transfer of the accused Officer was effected.  If, however, the accused official is transferred to another service then the procedure laid down in Rule 12 (4) (b) of the CCS (CCA) Rules will have to be followed.

[MHA Memo No. F.39/1/69-Ests.(A) dated the 16th April, 1969]

13.           Authority to institute proceedings

(1)       The President or any other authority empowered by him by general or special order may -

(a)        institute disciplinary proceedings against any Government servant;

(b)         direct a disciplinary authority to institute disciplinary proceedings against any Government servant on whom that disciplinary authority is competent to impose under these rules any of the penalties specified in rule 11.

(2)         A disciplinary authority competent under these rules to impose any of the penalties specified in clauses (i) to (iv) of rule 11 may institute disciplinary proceedings against any Government servant for the imposition of any of the penalties specified in clauses (v) to (ix) of rule 11 notwithstanding that such disciplinary authority is not competent under these rules to impose any of the latter penalties.

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