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IMPORTANT POINTS IN DAR

August 30, 2010

TIME SCHEDULE FOR DAR:

i Answering the charges 10 days
ii Inspection of documents if requested by the employee 15 days
iii Submission of reply after (ii) 10 days
iv If the inspection is asked in (ii) is not agreed to and then reply must be given within. 10 days
vi Reply statement after receipt of inquiry report 15 days
v Appeal 45 days
vi Revision 45 days

Appellate Authority / Revision Authority may entertain the petition after expiry of the prescribed 45 days time, if it is satisfied that the charged employee had sufficient cause for not preferring in time.

Time limit for disposal:

No time limit has been prescribed in the rule for disposal of an Appeal & revision.

Constitutional provisions:

Under Article 311(1) no civil servant shall be removed or dismissed from service by an authority subordinate to the authority who appointed him.

As per Article 311(2) no civil servant shall be removed or dismissed from service or reduced in rank without an inquiry in which he is informed of the charges against him and is given an opportunity to be heard about the charges.

Action against Casual Labour:

Discipline and Appeal Rules do not apply to Casual Labour, but they do apply when the Casual Labour has attained temporary status. In any case the procedure of a show cause and reasonable opportunity is desirable in cases not covered by D&A Rules.

Delay in finalization of DAR :

Delay in finalization of DAR cases lead to corresponding delay in promotion of the staff against whom the proceedings are pending. The case would be reviewed every six months and after the expiry of two years, the case of the employee should be reviewed for grant of Adhoc promotion.

Inter Locutory orders:

Are those orders which are passed during the course of proceedings in a manner, but they do not by themselves finally determine the proceeding. During the proceedings many objections may be raised by either of the parties. Those issues may require immediate decision of the Enquiry Officer before they proceed further with the matter. For example:

  1. Demanding translation in local language;
  2. Demanding various documents/ witnesses;
  3. Demanding copies of documents;
  4. Asking for production and discovery of documents;
  5. Prayer for adjournments;
  6. Demanding extra facilities for the Defence Counsel ; etc. etc.

Unless the Inquiry Officer decides these issues it may not be possible for him to proceed further with the case. Of course, he may hear the parties wherever necessary. Such orders are called Interlocutory (e.g. only an inter-locution and not a final say) and no appeal lies against such orders.

The idea is that if appeals were to be allowed against even such orders then the progress of the case would be impossible as the Defence could put a spoke at every step of the proceeding.

‘Step-in-Aid’

Orders are such steps which are calculated to promote the final disposal of the proceedings. They remove the obstacles which may stand in the way of such final disposal. No exhaustive list of such steps can be made, but it can broadly be stated that if a step in the proceeding has the effect of facilitating or advancing the finalization of the case to the extent of removing some obstacle, it may be regarded as a step-in-aid. No appeal lies against such orders.

Suspension as step-in-aid:

Suspension is not a penalty. It is one of forbidding or disabling the employee to discharge his duties and thus to help the investigation or the enquiry to proceed unhindered. It is a step-in-aid to the ultimate result of the investigation.

Appellate Order and CVC-

While disposing of an appeal if the appellate authority makes any reference to the advice of the CVC, the employee will be entitled to get copy of CVC advice.

Punishment imposed upon a union office bearer for his activities as such office bearer :

The union office bearer have right to appeal direct to the President when punishment is imposed on them due to their union activities. Such appeals should be placed before the Minister in charge for final orders.

Appellate Authority:

(1)    shall always be the Authority next higher above the Authority whose orders are appealed against.

(2)    Where such lower authority itself became Appellate authority due to its promotion, then appeal shall lie to his next higher authority.

(3)    Subsequent transfer of the railway servant will not change the Appellate Authority.

(4)    Where punishment has been enhanced on appeal, appeal shall lie to next higher authority of such authority who enhanced the punishment.

(5)    Higher authority who may have directed suspension is not barred to act as Appellate Authority because directive to suspend is not one to initiate or finalise disciplinary proceedings.

Service of orders, notices etc. on behalf of Railway Board or President

Any of the following officers in the Ministry of railways shall be competent to sign on behalf of the Railway Board or President

(1)   Secretary, Railway Board / Joint Secretary / Deputy Secretary.

(2)   Executive Director / Director/ Joint Director.

Special Provision under Rule 24 for Non-gazetted staff:

Group C&D staff who are dismissed, removed or compulsorily retired from service after disposal of their appeal and within 45 days thereafter, may apply for revision to GM or DRM, or senior most Administrative Grade officer.

Action  for other than official activity:

A Government official can be taken up in respect of activities which are not purely official, such as those related to Recreation Clubs, Co-operative Societies, Canteens etc.

Procedure after Retirement:

Where disciplinary proceedings had been initiated against an employee while he was in service, those may be continued and finalized after his retirement by the same authority. In major penalty cases, the final settlement dues namely pension, gratuity, commutation of pension will be paid on finalization of the case.

If the case is not initiated during his service, the same can be initiated after his retirement with the sanction of the President. It should not be related to an event which took place more than 4 years before the new date of initiating the case.

Consultation with Vigilance Branch:

Where in case, the Vigilance Branch has recommended imposition of a major penalty and the Disciplinary Authority proposes to impose a minor penalty, the Disciplinary Authority would first record his provisional order and consult the Vigilance  organization once. Likewise, when a major penalty has been imposed by the   Disciplinary Authority in agreement with the Vigilance department, but the Appellate / Revision Authority proposes to exonerate or impose a minor penalty, the Appellate / Revision Authority would first record his provisional order and consult the Vigilance  organization once. After such consultation, the Disciplinary/ Appellate / Revision Authority,  as the case may be is free to take a final decision in the manner.

Apology amounts to admission:

Charged employee in a departmental inquiry against him tenders an unqualified apology, this amounts to an admission of the charges against him and it is not necessary thereafter to conduct an inquiry. (AIR 1966 Rajastan 28)

Evidence Act:

In departmental proceedings, the strict laws of evidence act is not applicable.

Grounds for refusing inspection & Appeal :

The Disciplinary Authority must give detailed reasons for rejecting the request of the delinquent railway servant to inspect additional documents and no appeal lies against the refusal of request.

Measure to prevent tampering with records:

The Disciplinary Authority and the Inquiry Authority must take adequate steps to ensure that the official records are not tampered with by the delinquent employee at the time of inspection of Relied up on documents.

The delinquent employee may inspect the documents along with his defence helper.

Central Vigilance Commission cannot suggest the quantum of punishment.

The power to impose  penalty on a delinquent employee is with the competent authority under Article 309 of the constitution. If there has been an inquiry consistent with the rules and in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority.

Disagreement with findings of Enquiry Officer:

When the Disciplinary Authority disagrees with the findings of Inquiry Officer, it should record reasons for disagreement and communicate them to the charged official, giving him an opportunity to make a representation against them.

Orders recorded in file are final:

The decision recorded on the file by the Authority, even if not communicated, shall be final and cannot be changed by that Authority himself or by his successor-in office. The decision taken by the disciplinary authority ( other than the Head of the state) is a judicial decision and once it is arrived, it is final.

Communication of orders:

If a decision recorded on the file could not be communicated to the charged official by the authority who had recorded the said decision, the successor disciplinary authority will merely act as in the role of a communicator of the decision already taken by his predecesso

NATURAL JUSTICE

“ Justice should not only be done

But also seem to have been done”

In the most simplest words “Natural Justice” can be said to provide all reasonable opportunities to the charged employee to PROVE HIMSELF NOT GUILTY. In one case the Supreme Court has held that:

(a)      None shall be judgede in his own cause which means there should be no personal interest in the case;

(b)      Decision should be given only after a reasonable hearing has been provided and

(c)      That has been held in good faith and without any bias

(d)      None lower that the Appointing Authority can compulsorily retire, remove, or Dismiss one from service. i.e. hear the other side and that the judgement should be in good faith.

Reasonable opportunities means that the charged employee should be allowed to challenge the evidences adduced being produced against him and substantiating the statement given by him as his defence by way of producing defence witness and or documents. His right to cross examine should not be over ruled and if this is done the entire inquiry vitiated since it will be a violation on Natural Justice. Refusal to permit the charged employee to cross examine a witness who is to appear against him tentamounts to denial of reasonable opportunity.

Fair and impartial Justice means Natural Justice.

Justice should not only be given

But should also appear to have been given.

  1. Principle of Natural Justice are deemed to govern the Departmental Inquiry even though where not provided for;
  2. They do not refer to any one principle;
  3. Principles of Natural Justice lays down the prode4cure and it has nothing to do with the merits of the case.

Ensuring fair prodecure is generally called the Principle of Natural Justice.

NEMO JUDEX CAUSE SUA i.e. RULE AGAINST BIAS.

Bias can be of the following types:

  1. Personal Bias
  2. Pecuniary Bias.
  3. Departmental Bias.
  4. Subject matter Bias.
  5. Preconceived Bias.

If at any stage the employee raises the issue of bias against the Inquiry Officer the matter should be referred by the Disciplinary Authority to the Revisionary Authority who will decide the issue. Till then the Inquiry should be stalled.

My Rights

AUDI ALTERM PARTEM i.e. RUEL OF FAIR HEARING

v     Right to Notice:

Give adequate notice

1)       indicating charges which should be clear, precise and accurate. i.e. SF5/SF11

2)       List of documentary evidences and witness.

3)       Legal authority under which hearing is to be held. i.e.SF7/8

4)       Indicating date, place and time of Inquiry to be held.

v           RIGHT TO PRESENT CASE AND EVIDENCE

Submission of defence.

v           RIGHT TO REBUT ADVERSE EVIDENCE.

Cross Examination

Legal Representation.

v           NO EVIDENCE AT THE BACK OF PARTY

Nothing is confidential as such should be done in his presence.

v           INQUIRY REPORT TO BE SHOWN TO THE PARTY

Where ever inquiry is held, copy of the finding along with Disciplinary Authorities reasons for disagreement, if any must be communicated in brief before imposing any penalty.

v           REASONED DECISION

Speaking orders must be very clear. As discussed earlier begin with who has been charge sheeted, what for charge sheeted been proved or not proved, which penalty has been imposed and conclude with why has the penalty been imposed.

v           RULE AGAINST DICTATION

The Deciding Authority has to give his own judgement, therefore decision taken at the direction of any other agency is a violation of fair hearing.

v                 FINANCIAL INCAPACITY TO ATTEND INQUIRY

If Subsistence Allowance has not been paid or no action taken to arrange payment of Subsistence Allowance, if proved nullifies Exparte inquiry.

v           DECISION POST HASTE

Decision taken in haste without loosing time, indicates that the mind of the Disciplinary Authority was already made up mind as such harsh penalty imposed. It is an indication that any opinion had been formed in the mind before hand.

Exception to the Principle of Natural Justice:

  1. Exclusion in case of Emergency
  2.  Exclusion in case of Public Interest.
  3. Exclusion in case of Confidentiality.
  4. Exclusion in case of Academic Adjudication.
  5. Exclusion in case of impracticability.
  6. Exclusion in case of interim preventive action.
  7. Exclusion in case of Legislative action.

APPEAL

The Disciplinary Authority while issuing the  Notice of imposition of penalty advice it should ensure that the penalty advice indicate the period within which the appeal lies and whom the appeal lies. The period/time limit for submission of an appeal is 45 days from the date of receipt of the Notice of imposition of penalty  and the Appellate Authority is an authority who is always higher in rank, as per hierarchy, to the Disciplinary Authority.

What is an appeal?

Appeal is a representation against an order with which one is aggrieved.

What can be appealed against?

Any service matter.

Subsistence Allowance if review not done after 90 days (3 months) against Suspension, if Charge sheet is not issued within 90 days from the date of placing the employee under Suspension.

What cannot be appealed against?

Any order made by the President of India or any order made by the President of India, or any order that is of an inter-locutory or step-in- aid nature or any order passed by the Inquiry Officer during the course of inquiry cannot be Appealed against.

An employee has a right to appeal against any orders of suspension or deemed suspension; any penalty imposed by the Disciplinary Authority, Appellate Authority or Reviewing Authority or any orders that hampers or denies or changes his service conditions or is interpreted to his disadvantage. On receipt of the Appeal by the Personnel Dept, the same should be put up to the Disciplinary Authority, who should ensure that:

a)            The Appeal is received within the specified time (45 days) from the date of receipt of the Notice of imposition of penalty . In case it is received late may consider if satisfied, that the reasons for later submission were due to reasons beyond control.

b)            The Appeal is addressed to the correct Appellate Authority

c)            The Appeal is sent under the delinquent employee’s own name and signature.

d)            The Appeal is penned in a respectful and proper language.

e)            The Appeal is restricted to the charges leveled and for which he has been imposed the punishment.

After ensuring the follow up of the above points the Disciplinary Authority should go through the Appeal in detail and forward the same to the Appellate Authority with:

a)          Brief History of the DAR

b)          Para wise remarks on the appeal receive from the delinquent employee.

c)          Original DAR case along with all the relied upon documents.

d)          Service Register of the employee.

e)          Annual Confidential Reports, if any being maintained.

The Appellate Authority on receipt of the Appeal through the Disciplinary Authority should ensure that:

a)      The Appeal is addressed to the correct Appellate Authority and is penned by the employee under his own name and signature.

b)      The Appeal contains civil and polite language and is restricted to the material facts of the case.

c)      The Disciplinary Authority and the Enquiry Officer have followed the correct procedure as laid down.

d)      The orders of Disciplinary Authority are backed by evidence on record.

e)      The penalty imposed by the Disciplinary Authority commensurate with the gravity of the offence.

After having satisfied the above being complied, the Appellate4 Authority should ensure that proper procedure has been followed or not, that the orders given by the Disciplinary Authority are backed by evidences on record and that the penalty commensurate with the gravity of offence thereafter:

i)           Confirm, enhance, reduce or set aside the penalty and record the reasons for having arrived at the decision.

ii)                   Remit the case back to the Disciplinary Authority with further directives, as deemed fit, in case he came across any lapses in the conduct of the Inquiry by the Inquiry Officer or by the Disciplinary Authority while issuing the charge sheet or penalty advice or notice denial of Natural Justice at any stage.

In case where it is decided to enhance the punishment on appeal, the appeal shall lie tom the next higher authority. The penalty can be enhanced if the employee has been informed of this and given opportunity to explain as to why it cannot be enhanced. It is only in cases where the Appellate Authority  has enhanced the penalty, a second appeal lies since this Appellate Authority now becomes Disciplinary Authority. Once the Appellate Authority has exercised his powers, his orders should be given effect by the Disciplinary Authority against whose orders the employee had appealed against. The deliquent employee should also be informed as to whom the Revision lies and within what period should it be preferred. In case where the Appellate Authority decides to enhanced the penalty and that happens to be a Major Penalty, it should be ensured that an Inquiry will have to be conducted and in no case should any penalty be enhanced unless a reasonable opportunity has been provided to the employee.

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 EXTRACT FROM IMPORTANT CIRCULARS ISSUED BY Rly BOARD

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Sl.No RBE No. Boards letter No. Subject
1

E(D&A)63 RG 6-8 dt.27.4.1963

All promotions and appointment orders should invariably be signed by or on behalf of the respective Dept. officer by Sr.DPO/DPO/ SPO/APO/WM etc, over their respective designation to avoid complication regarding appointing authorities of the original officiating post held by the delinguent employee at the time of taking disciplinary action.

2

E(D&A) 62 RG 6-8 dt.27.7.1963

All reasonable facilities should be made available to the Defence Counsel/ Assistant for conducting the delinquent Rly. employee’s defence including examining, cross examining, re-examining of witnesses and making submission before the Enquiry officer.

3

E(D&A) 62 RG 6-8 dt.27.7.1963

In case where the DA marks a case to the higher authority for imposition of penalty since his powers as per SOP, DAR is restricted, and that higher authority is of the opinion that the penalty justified is within the competence of the lower authority for imposition of the punishment.

4

E(D&A) 63 RG 6-26 ( c) dt.28/30.8.1964

The proved charges must be specified on the Notice of imposition of the penalty.

5

E(D&A) 63 RG 6-23 dt.21.2.1964

Wherever records are not available to verify the actual initials of the Appointing Authorities, General Manager will be treated as the Appointing Authorities.

6

E(D&A) 66 RG 6-24 dt.13.2.1967

If the delinquent employee critically makes a request it would be obligatory, to summon the handwriting expert for cross examination in Departmental Inquiries if the report of the handwriting expert is sought to be brought on records in an inquiry and treated as evidence.

7

E(D&A) 67 RG 6-35 dt.20.12.1967

The Notice of imposition of penalty must invariably be signed by the authority imposing the penalty.

8

E(D&A) 66 RG 6-16 dt.6.6.1966

Within 2 months the delinquent employee should be informed if the charge sheet is dropped.

9

E(D&A) 69 RG 6-8 dt.19.9.1969

An authority under whose control an employee has been transferred and posted is entitled to know the reasons for his not having reported to him and is therefore fully competent to initiate disciplinary proceedings against that employee

10

E(D&A) 70 RG 6-13 dt 2.6.1970

The DA should apply their minds fully and properly and see that the material available them justifies initiation of a proceeding under Minor penalty or under Major penalty or the ends of justice can be met by issue of any other administrative order. Application of mind is equally necessary at all the stages of the disciplinary proceedings to avoid delays in finalization of the cases.

11

E(D&A) RG 6-59 dt.21.4.1971

In cases where the DA wishes to recall any witness for further inquiry/examination the delinquent employee, alongwith the defence council if he so desire, should also be asked to be present during the re-examination.

12

E(D&A) 71 RG 6-37 dt.19.10.1971

Where the delinguent have to play witness against each other instead of common proceedings, separate inquiries should be held in order to meet the ends of Natural Justice.

13

E(D&A) 71 RG 6-36 dt.6.6.1974

Because a criminal case is pending in the court of law, it is not binding to stay proceedings in the DAR case on the same charge and the case can be considered individually on the facts and circumstances. But if the employee obtains a stay order of proceedings from the court, then the proceedings should be suspended.

14

E(D&A) 87 RG 6-66 dt.17.8.1977

As far as possible a junior should not be made the immediate supeior of a senior employee whose case is kept in the sealed cover as there can be a reasonable apprehension of the senior’s ACR written by the junior not being objective and unbiased.

15

F(E) III/76 PN1/3 dt.8.4.1976

The period of suspension of a Rly. Servant shall not count towards qualifying service, unless the competent authority to pass orders under the rules governing such cases expressly declares at the time it shall count to such extent as that authority may declare.

16

E(D&A) 76 RG 6-56 dt.18.10.1977

In cases where an employee had placed under deemjed suspension due to detention on account of criminal proceedings does not become eligible for full pay and allowance if he has been discharged from detention without prosecution or has been acquitted by a court because the acquittal may be on more technical grounds but the suspension may be fully justified. He may be eligible for full pay and allowance if the competent authority feels suspension as fully unjustified in cases where an employee was detained in police custody erroneously or with out any bias and was released without any prosecution.

17

E(D&A) 84 RG 6-26 dt.29.4.1985

There cannot be further direction as “honorable” or otherwise in a case in which court sets aside orders passed by an authority on technical grounds like failure to follow the laid down procedure and in a case in which a person has been acquitted by a court inn case of acquittal it self. Cases of re-instatement following acquittal by courts should be dealt with under sub-rules 2,3,6 and 8 of Rule 2044 RII (1345 RII 1987 edition) (FR 54) with prospective effects.

18

E(D&A) 83 RG 6-14 dt 29.3.1985 and 5.12.1985

Photostat or typed copies of all the relied upon documents should be furnished along with the charge sheet. This, however, does not affect the right to inspect the originals. Along with the charge sheet, orders for appointment of Inquiry officer/ Presenting officer, if any, should also be issued, though Inquiry will start only after the DA has considered the defence and remits the case to the Inquiry officer. Exparte’ action may be taken only in cases where defence is not received. All hearing of proceedings should be expeditious and adjournments should be granted only on unavoidable grounds.

19

No. E(D&A) 80 RG 6-25 dt. 20.1.1986.

Penalty of Compulsory retirement, removal or dismissal from service shall be imposed only by the Appointing Authority or an authority of an equivalent rank or a higher authority.

20

No. E(D&A) 86 AE 5/2 of 25.5.1987.

The Inquiry under Discipline and Appeal Rules commences with the issue of a chargesheet and if the Disciplinary Authority holds that it is not reasonably praticable to hold an inquiry before serving the chargesheet, then no action by way of issuing a chargesheet would be necessary. (D.O.P.O.M.  NO. 11012/11/85 Estt.) dt.4.4.1986.

21

No.E(D&A) 83 RG  6-14 dt. 28.8.1987.

In cases where employees have been found guilty of having accepted or having obtained from any person any gratification, other than legal remuneration, as a motive orreward for doing or forbearing to do any official act, one of the penalties of Compulsory Retirement, Removal from service or Dismissal from service shall ordinarily be imposed and where such penalty is not imposed the reasons thereof shall be recorded in writing.

22

No. E(D&A) 90 RG 6-12 dt. 16.11.1990.

Reduction to a lower stage in a time scale of pay for a period not exceeding three years, without cumulative effect and not adversely affecting his pension – Minor Penalty.

23

RB’s No. 93/V-I/VP/1/2 dated 6.12.1993.

In the vigilance cases, draft charge sheets are prepared by the Vigilance Organisation to be served on the delinouent  officials by the Disciplinary Authorities.  In some cases it has come to the notice that the draft chafgesheets are not properly scrutinized by the concerned Executive before issue leading to embarrassment and sometimes delay in processing of the DAR cases.  In this connection, it is pointed out that the role of the Vigilance is advisory and the Executive has to exercise  due check and apply its mind keeping in view that the allegations and the gravity thereof in dealing with DAR cases.  The draft chargesheet is only to assist the Executive in facilitating and speeding up the DAR action.

24

No.E(D&A) 93 RG 6-83 dated 1.12.1993.

The Disciplinary authorities we should be debarred from inititating fresh proceedings against the delinquent officers unless the reasons for cancellation of the original charge memorandum or for dropping the proceedings are appropriately mentioned and it is duly stated in the order that the proceedings were being dropped without prejucide to further action which may be considered in the circumstances of the case.

25

No: 94/V-1/DAR/2/1  dtd. 10.5.94

w.r.t. E(D&A) RG6-41 dtd. 3.4.86 and No: E(D&A) 69RG6-17 dtd. 8.1.71.

Expeditious desposal of dealing of Major penalty DAR cases.  A model time schedule has been accepted by the Railway Board for completion of the DAR action in various cases and steps.  All out efforts are required to be made to achieve finalization of DAR proceedings as early as possible.  This needs no emphasis in order to avoid hardships to the charged official with regard to promotion etc. and at the same time to ensure punishment imposed on the delinquent staff at the earliest to act a deterrent for others.

26

No: M.11012/13/84 Esxtt.(A) dtd. 19.10.94 and O.M. 11012/6/94 Estt.(A) dtd. 28.3.1998 issued by the Govt. of India Ministry of Personnel.

The imposition of appropriate  punishment is within the discretion and judgement of the Disciplinary authority.  It may be open to the Appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the Jurisdiction of the Tribunal as similar to the powers of the High Court under Article 226.  The power under Article 226 is one of judicial review. It is not an appeal from a decision but a review of the manner in which the decision was made.  For details see the following judgements:

  1. 1.      Union of India and others v/s. Upendra Singh (1994 27 ATC 200)
  2. 2.      Parma Nanda’s case {1989(2) SLR 410}
  3. 3.      Union of India v/s. Tulsiram Patel {AIR 1985 SC 1416}
  4. 4.      Challappan (AIR 1975 SC 2216)

All are requested to bring the ruling of the Supreme Court to the notice of all concerned so that the same is appropriately referred to in all cases where the question of quantum of penalty comes up before the CAT or Supreme Court by way of SLP or otherwise.

27

No. 94 RG 6-87 dated 23.1.1995 and E(D&A) 87 RG 6-87 dtd.8.6.1989.

The Supreme Court in the judgment dt. 14.3.89 in CA No: 1709 of 1988 UOI  v/s. Parmanand has ruled that the Tribunal cannot interfere with the findings of the Inquiry Officer of the Competent Authority where they are not arbitrary or perverse.  The Tribunal also cannot interfere with the discretion of the competent authority in so far as quantum of penalty to be imposed after disciplinary proceedings is concerned.  In a recent judgment  SLR 516 (SBI v/s. Samaremdra kishore Endow), the Supreme Court have observed that the imposition of appropriate punishment is within the discretion and judgement of the Disciplinary Authority.  It may be open to the Appellate  Authority to interfere with it but not to theHigh Court or to the Administrative Tribunal for the reason that the  jurisdiction of the Tribunal is similar to the powers of the High Court Under Article 226 and the power under Article. 226 is one of judicial review.  In another case of Union of India and others Vs. Upendra Singh, The Tribunal had examined the correctness of the charges against the respondent on the basis of the material produced by him and quashed the same.  Allowing the appeal of the Union of India, the Supreme Court has held that in the case of charges framed in a disciplinary inquiry the Tribunal or Court can  interfere only if on the charges framed (read  with imputation or particulars of the charges if any) no misconduct or other irregularity alleged can be said to have been made out or the changes framed are contrary to any law.  The Tribunal has no jurisdiction  to go into the correctness or truth of the charges.  The Truth or otherwise of the charges is a matter for the disciplinary authority to go into and the Tribunal cannot take over the function of the Disciplinary Authority.  An officer discharging judicial or quasi-judicial duties is amendable to departmental inquiry into his conduct in discharge  of his duties. These rulings should be brought to the notice of all concerned and should be appropriately referred to in all cases where the question of quantum of penalty or correctness of charges comes up before the CAT or Supreme Court by way of an application, SLP or otherwise.

28

No: 92/V-1/VP/1/3 dated 7.2.95 w.r.t. Board letter dated 16.7.86,  14.3.88 and 17.3.89.

All Vigilance cases of Gr.C&D staff connected with the cases of Gazetted Officers which are processed after obtaining CVC’s advice, will continue to be dealt with as per the existing procedure.  In such cases involving CVC’s advice Vigilance clearance for group C  and  D staff will also be given after the case has been examined by the Vigilance Directorate of the Railway Board as per procedure spelt out in Board’s letter No. 88/V-1/CVC/1/1 dtd.5.4.88.

All the remaining minor/major penalty cases against Group C & D staff where CVC’s advice is not required will be dealt with as under :-

       a). In minor penalty cases Vig. Clearance will be automatic once the Disciplinary Authority has finalized the DAR action and punishment notice has be issued.  The outcome of the case will however, be sent to the Vig. Orlg. Who may get the case reviewed later, if considered necessary. Cases where there is deviation from the first stage advice of the Vig. Org. can be got reviewed by the Reviewing Authority, if considered necessary by the Vig. Organisation as per the existing practice in accordance with Board’s letter dtd. 17.3.89.

b). For major penalty  cases the concerned vigilance case will automatically get closed once the DA has imposed any of the major penalties and advised its outcome to vigilance Department.  The Vigilance Deptt. can later review the case by referring it to RA, if considered necessary as per existing practice.

c). For major penalty cases where the DA does not impose a major penalty and imposes a minor penalty or exonerates the charged official, the case will have to be sent to the Vig. Org. before it is closed.  Then Vig. Deptt. may get it reviewed, if considered necessary before taking a final decision.  To reduce the delays in such cases, it should be ensured that processing  is completed by the Vig. Deptt. within a period of a months after the Disciplinary Authority sends the case to them.

29

No: E(D&A) 95 RG 6-21 dated 6.4.1995.

w.r.t. OMs 11012/7/78 – Estt.(A) dtd. 14.9.78, 39/39/70 Estt. (A) dt. 4.2.71, 39/33/72 Estt. (A) dated 16.12.72, Board’s No. E(D&A) 70 RG6-14 dt. 15.3.71 reiterates that the time limits laid down in their office Memorandum  dated 4.2.71 and 16.12.72 should be scrupulously observed and in no case the government servants should continue to be placed under suspension for unduly long periods. These instructions may be brought to the notice of all concerned for strict compliance.

30

No: E(D&A) 92 RG 6-149(A) dated 17.7.1995.

In cases where the Railway servant is fully exonerated or only a minor penalty is imposed and his suspension is held as wholly unjustified, the period during which his junior was promoted to the higher grade should be reckoned towards the minimum period of service for the purpose of determining his eligibility for promotion to the higher grade.  However, if the penalty imposed is one where he is to be promoted only after the expiry of the penalty, he will be promoted only after the expiry of the penalty.

31

No: E(D&A) 87 RG 6-151.  dated 4.4.1996.

Where the Inquiring Authority holds a charge as not proved and the Disciplinary Authority takes a contrary view, the reasons for such disagreement must be communicated, in brief to the charged officer along with the report of Inquiry so that the charged officer can make an effective representation.  This procedure will require the Disciplinary Authority to first examine the report as per the laid down procedure and formulate its tentative views before forwarding the Report of Inquiry to the Charged Officer.

32

No. E(D&A) 95 RG 6-4 dated 7.6.1995.

It is clarified that there is no legal bar to the intitiation of departmental disciplinary action where criminal prosecution is already  in progress and generally there should be no apprehension of the outcome of the one affecting the other because the ingredients of delinquency/misconduct in criminal prosecution and departmental cases as well as the standards of proof required in both cases are not identical.  Departmental and criminal proceedings can be initiated simultaneously against the employee and the disciplinary proceedings can be continued and concluded without waiting for the conclusion of criminal case against the employee on the same charge.  If the facts, circumstances and the charges in the departmental proceedings are exactly indent to those in the criminal case and the employee is exonerated/acquitted in the  criminal case on merit (without benefit of doubt or on technical grounds) the Departmental case may be reviewed if the employee concerned makes a representation in this regard.

33

No: E(D&A) 95 RG 6-65 dated 17.1.1996

In case of adhoc promotions from Group B to Group A and promotions within Group A (upto SA grade) those imposed with minor penalties of censure, stoppage of passes/ptos recovery from pay, reduction to a lower stage in the time scale of pay and with holding of increments may also be promoted prospectively in their turn with reference to their position in earlier panel of the DPC.  In case of those where the penalty of withholding of increments or reduction in time scale of pay is operative they will not be promoted before the expiry of the penalty, but where the penalty is to become operative from a future date the person concerned should be promoted in his turn prospectively with reference to his position in the earlier panel of the DPC and the penalty imposed in the promotion grade for a period which would not result in greater monetary loss.

34

No: PE(D&A) 95 RG 6-72 dated 22.1.1997.

Passing of written orders in suspension cases and the imposition of punishment in cases of misconduce/negligence of repeated nature as well as timely recording of punishment in service records.  Disciplinary Authority may take the past bad record of service of the delinquent official into account while, determining the penalty to be imposed provided this past record is made the subject matter of a specific charge in the charge sheet itself.  Utmost care should be taken to ensure that the punishments awarded are promptly recorded in the service records of the employee concerned and the subsequent revision of penalty if any, may be likewise recorded at the appropriate time, giving reference to the earlier entry.

35

No: E(D&A) 96 RG 6-59 dated 19.6.1997.

The Appellate Authority which up holds the penalty of dismissal, removal or compulsory retirement in the case of Group C & D employees should make a mention about the special provision under Rule 24 so that the concerned employees have the choice of submitting their revision petition either to the prescribed Revisionary Authority or to the GM or DRM/Senior Administrative Grade Officer as the case may be.

36

No: E(D&A) RG 6-69 dtd. 4.8.1997.

Disciplinary action should be initiated  and finalized by the authorities under whose administrative control the delinquent employee may be working.  Only SR.DOM/DOM will exercise disciplinary powers in respect of operating staff even in matters relating to violation of safety norms.  Any practice contradictory to the above that may be in force on the zonal railways may be discontinued forthwith.

37

No: E(D&A) 97 RG 6-26 dtd. 18.9.97 and No: E(DAR)308/0 Vol.VI dt.3.10.97.

With reference to E(D&A) 72 RG-6 149 (A) and E(D&A) 92 RG-6-149(B) both dated: 21.1.1993 wherein instructions have been laid down for speedy disposal of DAR cases within the specified time limit so that the need for holding back the promotion of the staff adjudged suitable for promotion is limited to the bearest minimum.

38

No: 97/V-1/VP/1/3 dtd.18.11.97

“censure” is a formal punishment under D&AR 1968 Rules whereas “Warning” either oral or recorded is an administrative action, as such a government servant if deserves to be penalized, he should be atleast “censured” and No Recorded Warning should be issued in such cases.

39

No: E(0)I-97/PU-2/Genl.3 dtd. 5.1.98 

Accord top priority for finalization of the departmental proceedings.  Staff/Officials who attempts to delay the case intentionally should be taken up for appropriate action.

40

No: E/D&A/95 RG 6-32 dated 2.2.98.

General Managers and Officers of equivalent rank have been empowered to communicate Governments displeasure to Group A officers and staff upto and including officers in selection Grade of JA Grade in respect of Major Penalty proceedings which were initiated against them before retirement.  Modified schedule has been annexed  to this letter.

41

No: E(O) I-97/PU-2-Genl.3 dated: 5.1.98.

Expeditious Finalisation of D&AR cases – Inordinate delays occurs in finalization of a large number of cases resulting in unintended hardship to the delinquent officials by way of delayed promotion, with holding of settlement dues, etc. during the pendency of the case.  Immediate necessary action may be taken  to finalize the DAR cases within a reasonable time frame.

42

No: E(D&A) 98RG 6-24 dated 15.9.98.

Withholding of pensionary benefits of railways.  Servants against whom disciplinary proceedings were pending at the time of retirement from service – The Disciplinary Authority dropped the proceedings pending under Rule 9 of Rs(Pension) Rules and communicated Governments displeasure since he was of the opinion that the offence was not  so grave that warranted a cut in the pension.  There was no mention of the said order in the charge memo. Issued to the railway employees as such the employee filed an O.A. and the CAT directed the Railway Administration to pay interest on his withheld DCRG.  This was due to deficiencies in the order passed by the Disciplinary Authority.  Therefore, if the disciplinary proceedings initiated against a railway servant before his retirement from service have been concluded with the issue of the Governments displeasure this should be reflected clearly in the orders communicating governments displeasure.  Any claim for payment of interest in such cases should also be defended effectively before the ‘courts in the light of the above position’.

43

No: 98/V/1(DAR) 3/3 dated 11.6.98.

Sub-rule 3 under Rule 10 of the Railways service conduct Rules, 1966, entails upon Railway servant to give evidence if called for in the following circumstances :

1). Evidence at an inquiry before an authority appointed by Government. Parliament

or a State Legislature.

2). Evidence in any judicial inquiry.

3). Evidence at a departmental inquiry ordered by authorities subordinate to Government.  Any willful avoidance will constitute a breach of  R.S.C. Rules, 1966and liable to action under D&AR.

44

No:E(G) 97 LE 2/13 dated 18.8.1998.

It is imperative that the cases of unauthorized absence of the employees are not dealt with in a routine manner and proceedings under Railway servants D&AR against the defaulting employees are initiated immediately leading to the imposition of one of the major penalties.  Review all such cases and wherever the employee has remained unauthorized absent for more than 6 months initiate action against them.

45

No: F(E)I/98/AL-28/20, dated 1.2.99,  R.B.E. No. 14/99.

Sub:- Payment of TA/DA to Retired Railway servants for journeys  undertaken by them for attending departmental enquiry as defence assistants.

The pay will be reckoned by taking into account the basic pay drawn by them at the time of their retirement plus Dearness Allowance as admissible on 1.1.96(e.g. 148% of basic pay for employees drawing pay upto Rs.3,500) plus I & II instalments of Interim Relief.  Arrears, if payable, in terms of these orders may also please be paid.

46

No. E(D&A) 98 RG6-44, dated 16.3.99, R.B.E. No.46/99.

Sub:- Promotion to employees, disciplinary proceedings in respect of whom are finalized after their retirement from service with communication of Government’s displeasure.
Attention of the railways is drawn to the instructions contained in Board’s letter No.E(D&A) 97 RG6-27 dated 1.10.97(Bahri’s RBO 1997, p.118).  In terms of these instructions, an employee whose promotion was withheld on account of pending disciplinary/Judicial proceedings and who retires from service while the case is still pending is eventually exonerated he would become entitled to notional promotion from the date he was due for such promotion.  For the period of notional promotion, his case for grant of arrears has also to be considered.

It is reiterated that if the disciplinary proceedings are finalized before retirement, it is not permissible to issue ’warning’ or ‘Government’s displeasure’ to railway employees as a result of such proceedings in terms of extant instructions contained in Board’s letters dated 21.1.93 referred to above.

48

 No.E(D&A)99/RG 6-40, dated 13.1.2000, R.B.E. No. 7/2000.

Sub:- Comments of the disciplinary authority on the appeal under Rule 21(3) to the RS (D&A) Rules regarding.

It has to be ensured that, while forwarding appeals to the Appellate Authority, the Disciplinary Authority confines its comments to the points raised in the appeal without commenting on any extraneous circumstances on which the charged official has had no opportunity to explain his position.  Board desire that the above directions be brought to the notice of all the authorities concerned on your railway for their guidance and strict compliance.

49

No.E(D&A)2000 RG 6-41, dated 21.11.2000, R.B.E. No. 199/2000.

Sub:- Continuation of departmental proceedings against retired Railway servants who were under suspension on the date of their retirement.

It has, therefore, been decided that in cases where the Railway servant was under suspension on the date of his retirement and the departmental proceedings are continued after his retirement from service and a charge memorandum is proposed to be issued to him in  this connection, the first paragraph of the charge memorandum should read as under:

“In terms of order No._________________ dated______, Sh_________ while he was still in service.  In terms of Sub-rule(2) (a) read with Sub-instituted before the retirement of Shri._____________ are deemed to be proceeding under Rule 9 of the Railway Services(Pension)Rules, 1993.

50

No. E(D&A)2000 RG 6-24, dated 22.2.2001, R.B.E. No. 37/2001.

Sub:- Appointment of Board of Inquiry in disciplinary proceedings.

It is clarified that the  appointment of a Board of Inquiry and that of a CDI/CVC as Inquiry Officer are on different footings altogether.  It has already been clarified under Board’s letter of even number dated 20.2.2001(Bahri’s 36/2001, p.33)that the status of a CDI of the CVC vis-à-vis the charged official is immaterial, since he belongs to an independent organization outside the department of charged official.  As regards the Board of inquiry, which is generally appointed in complicated cases involving technical aspects relating to more than one department, as in the case of Railway accidents etc., the members of Board are Railway employees and hence as per the provision of Rule9(3), the members should be higher in rank than the charged official.

51

No. F(E)III/77/LE1/4, dated 12.8.1987 and No. F(E)III/2001/LE1/1, dated 17.5.2001.

R.B.E. No. 94/2001.

Sub:- Cash payment in lieu of unutilized leave onn average pay(LAP) on the date of retirement to the Railway servants who are compulsorily retired as a measure of punishment under the disciplinary rules – Amendment to Indian Establishment Code, Vol.I, 1985 Edition(Reprint Edition, 1995) Rule 550 thereof.

Encashment of unutilized leave on average pay (LAP) will not be allowed to those Railway servants who are compulsorily retired as a measure of punishment under the disciplinary rules, where the disciplinary authority has imposed a cut in the amount of pension.

52

No. E(D&A)97 RG 6-72, dated 28.5.2001,   R.B.E. No. 99/2001.

Sub:- Decisions taken on file in disciplinary cases – question whether such decisions are to be treated as final even though not communicated to the charged officials.

It is clarified that if the decision recorded on the file could not be communicated to the charged official by the authority who had recorded the said decision, the successor disciplinary authority will merely act in the role of a communicator of the decision already taken by his predecessor.

It is also clarified that the principle laid down in para 2 above shall be applicable only to the decision recorded at the conclusion of the disciplinary proceedings i.e., the final orders passed in the case by the disciplinary authority.  It shall not apply where the disciplinary authority proposes to disagree with the advice of the CVC or to the decision recorded by the disciplinary authority before referring the case to the UPSC for advice.  These decisions are provisional in nature and can therefore, be modified by the same authority or the successor disciplinary authority, before a final decision is recorded and communicated to the charged official.

53

No. E(G)2002 QR1-3, dated 29.4.2002.  R.B.E.No. 54/2002.

Sub:-Allotment of quarters – prevention of misuse.

Instances have come to the notice of the Board wherein commercial activities in the form of Insurance agency, Commission agency, Business, trade etc. are carried on from the Railway quarters allotted to Railway servants for residential purposes.

In this connection, it is clarified that Railway accommodation allotted to a Railway servant is meant only for his/her bona fide use and cannot be used for any purpose other than residence.  In order to prevent misuse of Railway accommodation in any manner, a clear provision to this effect should invariably be made in all House Allotment letters issued to Railway Servants.  The provision should also clearly specify that any violation in this respect would result in cancellation of allotment of the accommodation besides initiation of disciplinary action under Railway Servants (D&A)Rules.

54

No. E(D&A)87 RG 6-151, dated 8.8.2002, R.B.E.No. 132/2002.

G.S.R……. In exercise of the power conferred by the proviso to article 309 of the Constitution, the president hereby makes the following rules further to amend the Railway Servant(Discipline and Appeal) Rules, 1968, namely:-

1.     (1) These rules may be called the Railway Servants (Discipline and Appeal)

(Amendment) Rules, 2002.

(2) They shall come into force on the date of their publication in the Official

Gazette.

2.     In the Railway Servants(Discipline and Appeal) Rules, 1968(herein after referred to as the said rules), for rule 10, the following rule shall be substituted, namely:–

10.Action on the inquiry report:-

 (1)  If the disciplinary authority:-

(a)   after considering the inquiry report, is of the opinion that further

examination of any of the witnesses is necessary in the interests of justice, it

may recall the said witness and examine, cross-examine and re-examine the

witness;

(b)   is not itself the inquiring authority may, for reasons to be recorded by it in

Writing, remit the case the inquiring authority for further inquiry and report

and the  inquiring authority shall thereup proceed to hold further inquiry

according to the provisions of rule 9, as far as may be.

(2)  The disciplinary authority:-

(a)   shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority, its findings on further examination of witnesses, if any, held under sub rule(1) (a) together with its own tentative reasons for disagreement, if any, with findings of the inquiring authority on any article of charge to the Railway Servant, who  shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Railway servant;

(b)    shall consider the representation if any, submitted by the Railway servant and record its findings before proceeding further in the matter as specified in sub-rules(3), (4) and (5).

(3) Where the disciplinary authority is of the opinion that the penalty warranted is

such as is not within its competence, he shall forward the records of the inquiry to the

appropriate disciplinary authority who shall act in the manner as provided in these rules. 

(4)If the disciplinary authority having regard to its findings on all or any of the articles of

Charge, is of the opinion that any of the penalties specified in clauses (i) to (iv) of rule 6

Should be imposed on the Railway servant, it shall, notwithstanding anything contained

In rule 11, make an order imposing such penalty:

Provided that in every case where it is necessary to consult the Commission, the record

Of the inquiry shall be forwarded by the disciplinary authority to the Commission for its

Advice and such advice shall be taken in to consideration before making any order

imposing any penalty on the Railway servant.

(5)If the disciplinary authority, having regard to its findings on all or any of the articles of

Charge and on the basis of the evidence adduced during the inquiry, is of the opinion that

any of the penalties specified in clauses (v) to (ix) of rule 6 should be imposed on the

Railway servant, it shall make an order imposing such penalty and it shall not be

necessary to give the Railway servant any opportunity of making representation on the

penalty proposed to be imposed.

Provided that in every case where it is necessary to consult the Commission, the record of

the inquiry shall be forwarded by the disciplinary authority to the commission for its

advice and such advice shall be taken into consideration before making an order

imposing any such penalty on the Railway servant.

3. In the said rules, for rule 12, the following rule shall be substituted, namely:-

12.Communication of orders:- Orders made by the disciplinary authority which would

also contain its findings on each article of charge, shall be communicated to the Railway

servant who shall also be supplied with a copy of the advice, if any, given by the

Commission and, where the disciplinary authority has not accepted the advice of the

Commission, a brief statement of the reasons for such non-acceptance.

55

No. E(D&A) 2002 RG 6-36, dated 25.11.2002, R.B.E.No. 211/2002.

Sub:-Imposition of the penalties of dismissal, removal or compulsory retirement – Determination of appointing authority reg.

It has been brought to the notice of the Board by the NFIR, that on the Railway disciplinary powers as appointing authority for the purpose of imposing the penalties of dismissal, removal or compulsory retirement are even exercised by the authorities who have merely issued the offer of appointment or order of promotion.

The contents of Rule 2(1) (a) of RS (D&A) Rules, 1968 relating to definition of ‘Appointing Authority’ as elaborated vide Board’s letter No. E(D&A) 88 RG 6-12, dated 7.5.1990 are reiterated.  The gist of the rule and the said instructions is also explained below for easy understanding.

As the Railways are aware, in terms of Rule(1) (a) of RS(D&A) Rules, appointing authority in relation to a railway servant means the authority empowered to make appointment to the service of which the railway servant is, for the time being a member or to the grade of the service in which the railway servant is, for the time being included or the authority empowered to make appointment to the post which the Railway servant for the time being holds or the authority which actually appointed the Railway servant to such service, grade or post as the case may be, whichever is the highest authority.  It is advised that the authority empowered to make appointment, referred to in Rule2(1) (a) above, means the authority empowered to make appointment to the grade or post  which the railway servant is holding, at the time of imposition of penalty.  This authority may be higher or lower in rank than the authority which was empowered to make appointment at the time of induction of the Railway servant to the relevant grade or post or the authority which actually appointed him to that grade or post.  The intention of the rule is that the  penalties of dismissal , removal or compulsory retirement from service on a Railway servant  should be imposed only by the highest of these authorities i.e., either by the authority which actually appointed the railway servant to the relevant grade or post or the authority which is empowered to make appointment to that grade or post at the time of imposition of penalty, whichever is the higher authority.  The penalty of dismissal, removal or compulsory retirement from service should obviously not be imposed by an authority which have merely issued the offer of appointment or order of promotion, with regard to the appointment or promotion ordered by a competent authority higher to that authority.

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