Disciplinary Proceedings in Odisha

This presentation relates to various provisions of Odisha Civil Services (Classification, Control & Appeal) Rules, 1962

1. By DR SATYANARAYANA DASH EX-Acting Chairman, Odisha Administrative Tribunal Presentation on Orissa Civil Services (Classification, Control and Appeal) Rules, 1962

2. No dismissal or removal by authority subordinate to appointing authority No dismissal or removal or reduction in rank without inquiry in which:- charge should be communicated to the Govt. Servant concerned. should be given reasonable opportunity of being heard in respect of charges; and penalty may be imposed only on the basis of evidence adduced during such inquiry Safeguards under Article 311 of the Constitution of India

3. Conviction on a criminal charge Not reasonably practicable to hold inquiry Appointing authority to be satisfied Reasons to be recorded in writing In the interest of the security of the state President/ Governor to be satisfied Exceptions to Article 311 safeguards of Constitution of India

4. Definition of Misconduct The term ‘misconduct’ is not defined in any of the conduct rules or other enactments’ Misconduct’ literally means wrong conduct or improper conduct. The expression misconduct is an expression of wide amplitude. Misconduct has been defined in Black’s Law Dictionary ,Sixth Edition at page 999,thus –“a transgression of some established and definite rule of action ,a forbidden act, a dereliction from duty, unlawful behaviour , wilful in character, improper or wrong behaviour . It’s synonyms are misdemeanour , misdeed, misbehaviour , delinquency, impropriety, mismanagement, offence, but not negligence or carelessness”. Any violation of Rule 3 of Odisha Government Servants’ Conduct Rules is treated as misconduct Definition of Misconduct

5. Rule 3: Government Servant to maintain:- ( i ) Absolute Integrity (ii) Decorum of Conduct (iii) Devotion to Duty He should not commit any Act involving ( i ) Personal Immorality like Drinking, Sex and Gambling damaging the reputation of Government and concerned Employee (ii) Failure to Discharge Duty Properly likely to weaken position & Prestige of Appropriate Government Essence of Orissa Government Servants’ Conduct Rules 1959

6. Rue 2:Appointing Authority : Authority who appointed the Government Servant to the Service/Grade/Post or Authority empowered to make appointment to concerned Service/Post or Authority who appointed him in any other permanent post Disciplinary Authority : Authority Competent under these Rules to impose penalty as per schedule to these rules Secretary : means and includes a Special Secretary/Additional Secretary/Joint Secretary in independent charge of the Department OCS(CCA) Rules,1962

7. Rule 3:Application of these Rules to all Government Servants except casual employees, persons liable to discharge in less than a month’s notice, persons having separate applicable rules or members of All India Services These rules shall apply to temporarily transferred Government Servants who originally came under these rules Government may exempt certain categories of Government Servants from application of all or some of these rules by an order Decision of Government will be final in case of any doubt about applicability of these rules. OCS(CCA) Rules, 1962

8. Rule 4:Special Provisions may be made in case of a Government Servant in consultation with Government for applying some of these rules where the special provisions will apply . Approval of Governor is must if Governor is not appointing Authority Rule 5: Rights/Privileges conferred on Government Servants by any other law in force can not be taken away by these Rules OCS(CCA) Rules, 1962

9. Rule 6: Classification : State Civil Service is classified as Group A, Group B, Group C. Each Group may have Different Grades Rule 7:Group A, B or C may be consisting of different Grades/Posts as may be specified . Any new service created will be part of State Civil service & placed in relevant grade till it is classified. OCS(CCA) Rules, 1962

10. Rule 8:Classification of Posts in Group A, B,C and D . Government order classifying an unclassified Post is final Rule 8A:Any reference to Classes I,II,II &IV in any rule shall mean Groups A, B,C, & D respectively. Rule 9:General State Service those not included in any other State Civil Service of corresponding class OCS(CCA) Rules, 1962

11. Rule 10:Appointing Authorities: Governor in case of SCS/Post in Group A . Governor may delegate this power Rule 11:Appointments to SCS/Post other than Group A shall be by Authority in the Schedule All appointments to General State Service Posts consisting SCS Groups B,C & D shall be by order of Governor, otherwise by Authorities specified in the Schedule OCS(CCA) Rules, 1962

12. Rule 12:Suspension:Can be issued by ( i ) Appointing Authority (ii) Authorities to which Appointing Authority is subordinate (iii) Authority empowered by Governor in cases where (a) Disciplinary Proceeding is pending or contemplated (b) where a Criminal case against him is under investigation or trial OCS(CCA) Rules, 1962

13. Rule 12(2): Deemed Suspension when a Government Servant is arrested on criminal charge or otherwise and detained exceeding 48 hours from the date of detention by an order of Appointing Authority & shall remain under suspension until further orders Rule 12(3) & 12(4):If order of dismissal/removal/compulsory retirement is set aside/remitted back on appeal/Review/order of Court of Law, suspension is deemed to have continued from the date of dismissal/removal/compulsory retirement until further orders Rule 12(5):Suspending Authority or his higher Authority may review the suspension order at any time Rule 12(6):Disciplinary Authority to indicate in the final punishment order how the period of suspension is to be treated whether as a punishment or not. OCS(CCA) Rules, 1962

14. SUSPENSION : (a) Government Servant continues to be a member of service during suspension (b) Suspension is an administrative order . Gravity of an offence should determine whether official should be suspended (c) In Grave cases of Dowry Death/Rape, suspension is resorted to (d) Grave Acts prejudicial to the interest of the state (e) No suspension of absconding officials (f) Suspended official may be proceeded against if he does not stay at Headquarters fixed (g) No confirmation in service during suspension period .No promotion, name to be kept in Sealed Cover OCS(CCA) Rules, 1962

15. SUSPENSION: (g) Suspension period earns increment (h) Charge sheet should be issued within three months of date of suspension,(Ajay Kr Choudhury Vrs UOI) ( i ) No Retrospective Suspension except in cases of deemed suspension (j) Resignation can not be accepted during suspension (k) Subsistence Allowance must be paid during suspension, at 50% of Basic Pay for the first year and may be enhanced to 75% OCS(CCA) Rules, 1962

16. Rule 13:Punishments: Minor Penalties:- Fine shall be imposed on Group D Government Servants Censure Withholding of increments without cumulative effect (iii)A Withholding of promotion (iv) Recovery from pay of pecuniary loss caused to Government or to a company or body of individuals, incorporated or not, wholly or substantially controlled by Government or to a Local Authority by negligence or breach of orders (v) Suspension OCS(CCA) Rules, 1962

17. Rule 13 contd : Major Penalties:- (vi) Reduction to a lower service, grade or post or to a lower time Scale of Pay or to a lower stage in the time scale (vi)A Withholding of increments with cumulative effect (vii) Compulsory Retirement (viii) Removal from Service not a disqualification for future employment (ix) Dismissal from Service which is ordinarily to be a disqualification for future employment OCS(CCA) Rules, 1962

18. Following do not amount to penalty With holding increments for not passing Departmental test Non promotion of a Government Servant on consideration of his case Reversion from higher grade to lower grade on ground of unsuitability or administrative grounds Post probation reversion to his permanent service as per guidelines Replacement of service of borrowed Government Servant to the lent organization Compulsory Retirement as per rules relating to superannuation/retirement Termination during probation or on temporary service or on contractual appointment as per terms of contract OCS(CCA) Rules, 1962

19. Rule 14:Disciplinary Authority: ( i ) Government – may impose any Rule 13 Penalty (ii)Any Rule 13 Penalty may be imposed on a member of SCS by (a) Appointing Authority (b) Authority in Schedule and (c) Authority empowered by Governor by general/special order Any Rule 13 Penalty on a Class III or Class IV Employee of Secretariat by Secretary to Government or of any other office, by Head of that Office unless the Head of Office is of rank lower than Authority specified in Schedule OCS(CCA) Rules, 1962

20. Rule 14 Contd : All Major Penalties under Rule 13 (vi) to (ix) shall not be imposed by any authority lower than Appointing Authority If Govt Servant is appointed to any other service/Post where the Rule 13 Major Penalty awarding Authority of parent service is not subordinate to latter such Punishment awarding Authority, the latter must consult the former in awarding such Punishment OCS(CCA) Rules, 1962

21. Rule 15:Procedures for imposing Major Penalty– No Major Penalty order be passed except after an Enquiry as prescribed without prejudice to Public Servants (Inquiry) Act, 1850 Charge Sheet must be issued by Disciplinary Authority to delinquent officer giving Notice containing definite charges appended with Statement of Imputations/Allegations, Memo of Evidence showing Documents and Witnesses to be examined giving time not exceeding a month to reply to the charges indicating also his desire, if any, to be heard OCS(CCA) Rules, 1962

22. Charge sheet for major penalty shall be in four parts Annexure I – Articles of charge Annexure-II – Statement of imputations/Allegations to furnish elaborate details of the Article of charge covering all the documents and witnesses Annexure-III – List of documents Annexure-IV - List of witnesses Selection of charges – simple, precise, easy to understand, easy to prove – should not be vague OCS (CCA) Rules 1962

23. Clear, precise and intelligible Should mention all relevant facts Then state the nature of the misconduct Any Departmental Rule or Guidelines violated may be mentioned No inference as to guilt Separate charge for each allegation The articles of charge should be framed in clear, concise terms and without ambiguity. Avoid charges which mainly depends on the statement of govt. servant Contents of a Charge Sheet

24. Rule 15 Contd : Rule 15(3) mandates supplying all Documents listed in Memo of Evidence to the CO to submit his Written Statement of Defence (WSD). He may ask for other documents, which if the Disciplinary Authority (DA) considers relevant, may allow him to peruse and take extracts in presence of a responsible officer . If the Authority feels such Documents are irrelevant or not in public interest to show, such permission may be refused. On receipt of Written Statement of Defence , in respect of not admitted charges, DA may appoint a Board of Inquiry/Inquiring Officer(IO).For presenting the case before the IO on Prosecution side/Government side, he may appoint a Marshalling Officer (MO) or Presenting Officer On going through the WSD, if the DA feels that a Minor Penalty be awarded, he may record such reasons, and consult OPSC if necessary for Gazetted Officers and award any Minor Penalty listed at Rule 13 ( i ) to (v) OCS(CCA) Rules, 1962

25. Rule 15 Contd : The IO must consider the Documentary Evidence and Oral Evidence. All Prosecution Witnesses must be examined by MO and cross examined by the Charged Officer (CO).All Defence Witnesses be examined by the Charged Officer and cross examined by the MO. The MO may cross examine the CO. If the IO does not want to examine any witness on the ground of irrelevancy of evidence, reasons for the same be recorded in writing OCS(CCA) Rules, 1962

26. Rule 15 Contd : On conclusion of Enquiry, The IO must prepare an Enquiry Report (ER) containing his specific finding on each of the charges with reasons. In case of a new charge found in course of Enquiry, the IO must ignore it unless same is admitted by the CO or he had opportunity of defending himself against the same. The IO may recommend suitable punishment against the CO. Record of Enquiry shall consist of Charges+ Statement of Imputations + Memo of Evidence + WSD+ Oral Evidence+ Documentary Evidence + Order of DA about appointment of IO & MO +Enquiry Report with findings on each charge with reasons +Recommendations regarding punishment. DA, who is himself not IO, to peruse the Enquiry Report and record his finding on Each Charge OCS(CCA) Rules, 1962

27. Rule 15 Contd : 15(10)( i )(a) A Copy of Enquiry Report be given to CO by Registered Post/Otherwise to reply in 15 days to the ER containing his representation 15(10)( i )(b) On Considering the Representation, if DA feels any of Major Penalties be imposed he shall furnish to CO by Registered Post/Otherwise his findings along with brief reasons for disagreement with IO and along with proposed punishment , calling for his representation For cases requiring OPSC Consultation, Record of Enquiry + Copies of above notices +Representations of CO received be forwarded to OPSC On receipt of OPSC Advice, DA shall consider Representations of CO + OPSC Advice and issue appropriate Orders. If OPSC Advice is not required, DA shall issue appropriate orders based on CO’s representations. The CO may be served with final order along with copy of OPSC Advice and brief reasons for disagreement with such Advice, if any. OCS(CCA) Rules, 1962

28. Rule 16:Procedure for Minor Penalties: Penalties under Rule 13( i ) to (v) ( i )The CO is issues a Charge Sheet under Rule 16 containing Statement of Imputations/Allegations giving him reasonable time , say two weeks , to make his representations (ii) DA takes into consideration such representations and consults OPSC where necessary (iii) DA based on the representation of CO and OPSC Advice, if any, passes necessary Orders of Punishment Record of Proceedings to consist of ( i ) Rule 16 notice to CO (ii) Statement of allegations (iii) Representation of CO (iv)Advice of OPSC (iv) Final Orders in the case along with reasons No Formal Enquiry is necessary in case of Minor Penalty Proceedings as required in Major Penalty Proceedings OCS(CCA) Rules, 1962

29. Rule 17:Joint Enquiry : Governor or Authority Competent to impose penalty of Dismissal on all the COs may order Disciplinary Action through a Common Proceeding. Such Order shall specify ( i ) the Disciplinary Authority (ii) Rule 13 Penalties that can be imposed (iii) Whether Procedure under Rule 16 may be followed No Common Proceedings can be held against Retired Officers Rule 18:If a Government Servant is convicted of Criminal Charge or Where it is not practicable to follow procedures or in the interest of security of State it is not expedient to follow the procedure, Disciplinary Authority may Pass such orders notwithstanding Rules 15,16 & 17.If OPSC Consultation is required, that may be done. OCS(CCA) Rules, 1962

30. Rule 19:For Officers lent to Union or other State Governments : Borrowing Authority(BA) shall have powers of Appointing Authority (AA) for Suspension under Rule 12 and powers of DA for taking Disciplinary Proceedings (DP), provided BA must inform Lending Authority (LA) forthwith about circumstances leading to the DP . If BA is other than Union/State Government, Concurrence of LA must be taken before starting the DP. If CO is involved in a Criminal case, action can be taken by BA in anticipation of Concurrence of LA . In case of disagreement between BA and LA, the CO be replaced with LA. In the DP, if BA feels any Minor Penalty under Rule 13 be imposed, it may consult LA and pass orders. In case of difference of views between BA and LA, the CO be sent back to LA In the DP, if BA feels any Major Penalty under Rule 13 be imposed, it shall send back CO to LA and send the DP Records and the LA , if DA of the CO, may pass appropriate orders . If LA is not DA, it shall send the records to concerned DA . The DA must comply with Procedures under Rule 15(10) and 15(11). OCS(CCA) Rules, 1962

31. Rule 20:Officers Borrowed from Union/Other State Governments : If CO is suspended or DP is drawn up, LA must be informed of the Circumstances. If LA is other than Union/State Government, procedures under Rule 19 second proviso be taken . In the DP, if DA feels Minor Penalty is appropriate, it may consult LA and follow Rule 15(10) and pass orders. In case of difference between BA & LA, CO may be sent to LA. If DA feels Major Penalty is necessary, the CO be sent back to LA with Records for appropriate orders. OCS(CCA) Rules, 1962

32. Rule 21:No Appeal against any order of Governor Rule 22: A Group C or D officer may appeal against any order imposing Penalties under Rule 13 to Authority empowered by the Governor or Authority Specified in the Schedule or Authority to whom Punishing Authority is immediately subordinate For Group A or Group B Officers if Punishing Authority is other than the Governor, then Governor will be Appellate Authority Under Common Proceedings under Rule 17, Appellate Authority is the Authority to whom the Disciplinary Authority is immediately subordinate The Group A, B,C and D Officers includes those who ceased to be member of the Service. OCS(CCA) Rules, 1962

33. Rule 23:Appeal against other Orders:-A Government Servant may appeal against any order which denies or varies to his disadvantage his pay , allowances , pension or other conditions of service regulated by Rules or agreement/contract or interprets the Rules to his disadvantage the provisions of any such Rules/Agreement . Such Appeal will lie to Governor if the order is passed by the Rule/Agreement making Authority or an Authority to which such Rule/Agreement making Authority is subordinate . If the order is passed by any other authority, then Appellate Authority will be the Rule/Agreement making Authority OCS(CCA) Rules, 1962

34. Rule 23 Contd : Appeal against an order Stopping the Government at EB in a Time Scale on ground of unfitness Reverting him to a lower service/post/grade from a higher officiating service/grade/post not as a Penalty Reducing/Withholding or denying the maximum pension admissible under Rules Determining Pay/Allowances during the Suspension Period on his reinstatement or treating such period as Duty If Governor is the Dismissal Authority, appeal will lie to him If any other Authority is the Dismissal Authority, appeal will lie to that Authority. This provision will apply to retired persons and pension will include additional pension, gratuity and any retirement benefit OCS(CCA) Rules, 1962

35. Rule 24:Period of Limitation for filing Appeal is three months from the date of appellant receiving original order . Appellate Authority may relax this for sufficient grounds Rule 25: Form/Content of Appeal: Appeal shall contain all material statements/ Arguments and should not have disrespectful/improper language and should be complete in itself. Rule 26:Appeal be submitted to the Original Authority which made the order appealed against . If he is not appellant’s Head of Office nor subordinate to Head of such Office it shall be submitted to Head of such office who shall forward to that Authority . A Direct Copy of Appeal Petition may be submitted to the Appellate Authority OCS(CCA) Rules, 1962

36. Rule 27:Withholding of Appeals : The Original Authority may withhold Appeal if ( i ) No Appeal lies as per Rules (ii) Form/Content is incomplete as per Rule 25 (iii) Time barred as per Rule 24 but no reasonable cause is shown (iv) It is repetition of already decided Appeal without any new facts Withheld appeal under Rule 25 Clause (ii) above should be returned to appellant to be resubmitted within one month after compliance and it shall not be withheld again In case of withholding Appeal, appellant be informed of the same with reasons Every Quarter, the Withholding Authority shall submit details of appeals withheld with reasons to the Appellate Authority OCS(CCA) Rules, 1962

37. Rule 28:Transmissions of Appeals : The Original Authority shall transmit not withheld appeals with Records to the Appellate Authority . Appellate Authority may call for any withheld Appeal Cases with comments of Original Authority with Records Rule 29:Consideration of Appeals : Appellate Authority shall look into the following in Rule 13 Punishment cases Whether prescribed Procedure has been followed Justification of findings Whether Penalty is excessive, adequate or inadequate and after consulting OPSC in required cases pass orders setting aside, reducing , confirming or enhancing the Penalty or remitting the case to the Original Authority/Any other Authority to such directions as it may deem fit provided:- No enhanced Penalty which neither Original or Appellate Authority is competent to impose No enhanced Penalty without the CO being provided opportunity of to make representation against the same If enhanced Penalty is one of Major Penalty under Rule 13, then Rule 15 Enquiry , if not already conducted, be held by Appellate Authority or any Authority directed to conduct the same and after giving opportunity to the appellant to make representations against enhanced Penalty, pass appropriate orders. In case of Rule 23 Appeal, appellate Authority may consider the circumstances and pass appropriate orders . Copy of Appellate Orders be supplied to appellant free of cost Rule 30:The Original Authority shall give effect to Appellate Orders. OCS(CCA) Rules, 1962

38. Rule:31:Power of Governor to Review : Governor may suo moto or otherwise, call for records and review any order under these rules/repealed rules and after consulting OPSC where necessary:- confirm, modify or set side the orders or Impose any penalty or set aside, reduce, confirm or enhance any penalty imposed or Remit the case to Original Authority or any other Authority directing further action/enquiry as he considers proper or Pass such orders as he deems fit Provided enhanced penalty will require that the CO be given chance to make representation against the same If any of Rule 13 Major Penalties is proposed and Rule 15 Enquiry has not been held, subject to Rule 18, direct an enquiry be held and after giving opportunity to CO against Penalty proposed, pass appropriate orders OCS(CCA) Rules, 1962

39. Rule 32:Review of Orders in Disciplinary Cases : The Appellate Authority may call for records in Rule 13 Punishment Cases suo moto or otherwise and review such order and after consulting OPSC where necessary, pass such orders as if the CO had filed Appeal against the Punishment Order provided this can not be done after six months of passing of order to be reviewed OCS(CCA) Rules, 1962

40. Rule 33: Repeal & Savings: The CS (CCA) Rules 1930 and OSS (Discipline & Appeal) Rules,1935 are repealed provided any proceedings under those Rules shall be treated as under these Rules. Rights to appeal under Repealed Rules shall continue under these Rules Rule 34: In case of any doubt as to interpretation of these Rules, the matter be referred to Governor, whose decision shall be final OCS(CCA) Rules, 1962