Final reference here relates to the reference by the disciplinary authority to the charged officer made forwarding of the report of the inquiry officer on its receipt and seeking his comments. This is also referred as the second time extension of natural justice. There is no provision in the DA Regulations of the Bank for providing this benefit. However it is extended as per advice of the CVC, considering employees of PSBs at par with Government Employees. The relevant guidelines of the CVC in its Manual (Chapter -12 Paragraph 1.2 & 1.3) are quoted hereunder:-
1.2. On receipt of the report and the record of the enquiry the disciplinary authority, if it is different from inquiring authority, will forward a copy of the inquiry report to the Government servant concerned, giving him an opportunity to make any representation or submission with the following endorsement:-
"The report of the Inquiry Officer is enclosed. The disciplinary Authority will take a suitable decision after considering the report. If you wish to make any representation or submission, you may do so in writing to the Disciplinary Authority within 15 days of receipt of this letter."
1.3. On receipt of his reply, or if no reply is received within the time allowed, the disciplinary authority will examine the report and record of the inquiry, including the points raised by the concerned Government servant carefully and dispassionately and after satisfying itself that the Government servant has been given a reasonable opportunity to defend himself, will record its findings in respect of each article of charge saying whether, in its opinion, it stands proved or not.
The 2nd stage reference was provided Article 311 clause (2) of the Constitution, before it was amended in the year 1976 by the 42nd Constitution Amendment Act. Full details can be perused by you by linking to the relevant chapter titled Constitutional Safeguards- Page: 3 in the project titled "Safeguards & Remedies"
The DA regulations has prescribed the action to be taken by the disciplinary authority on the Report of the inquiry officer. The disciplinary authority, on merits of the case, has a variety of options provided under DA Regulation 7(1) to 7(4). It is not constrained to blindly ditto the findings of the inquiry officer, to accept the report and to act on the same.
The options given to the disciplinary authority under Regulation No.7 each of which has to be exercised based on justifying reasons to be recorded by the disciplinary authority are as under:-
The disciplinary Authority may arrive at any of options, as may be justified in the circumstances, by adhering to the following course.
Where it is observed that any one of the above requirement is not fulfilled, the disciplinary authority may take the appropriate step as warranted from amongst the options mentioned above.
The above defined role of the disciplinary authority makes him responsible and incumbent to detect all deficiencies in the inquiry process and the findings of the Inquiry officer, even without any representation from the charged office pointing out such grave omissions in his 2nd stage reference. The 2nd stage representation of the charged officer is in fact an additional reference source for the disciplinary authority in deciding the course of action on the report. However this is the precept or the prescribed norm of duty. How far it is diligently followed is another question.
The disciplinary authority should not only take into consideration such submissions of the charged officer, but also evidence the fact that it has considered the submissions of the charged officer against the findings of the inquiry officer, by accepting or rejecting the submissions stating reasons therefor in his own order. Failure to do so would amount to denial of natural justice.
The wording of the contents of CVC Manual Chapter 12, paragraph 1.3 strengthens this conclusion, as the CVC has specified that "the disciplinary authority will examine the report and record of the inquiry, including the points raised by the concerned Government servant carefully and dispassionately". Such careful and dispassionate examination of the points raised by the charged officer, should be evidenced by the disciplinary authority in his order of findings stating the reasons, if he rejects the submissions of the charged officer. Only this course will satisfy the charged officer that his points were considered.
Why Material Safeguards in the System of Discipline Management Turn Out to be
Empty Words - Bureaucratic Style of disposing of Files
It will be seen from the foregoing that the second stage reference is intended as a material safeguard. But it is rarely effective. This is because of the way disciplinary management is carried out in Nationalised Banks. Everything is carried out in a bureaucratic style and executives are not accustomed to act independently and objectively. It is not therefore quasi-judicial approach, it can be more appropriately referred as "bureaucratic-judicial". The hierarchical system of functioning shifts the focus from the disciplinary authority to the dealing Department called DAC (Discipline Action Cell). This is headed by a scale III Manager, at the Head office, and Scale II Manager at the Zonal or Regional Offices. There are a number of assistants under them according to the turnover of work handled by the department. When I went to the head Office of MYBANK, I saw this department working. The first case-worker introduced himself as the one handling disciplinary cases, and next sitting to him looks after Appeals. This way objectivity is introduced, as the same person does not handle both original cases and appeals. So it was contended. But then the manager is the common person, so as also the Chief above them. This department has specialised in using judicial phraseology in typical forms and orders, and a high standard of legal-terminology, words and phrases can be seen in the drafting of charge sheets, letters appointing Presenting and Inquiry Officers, and orders conveying final orders of the disciplinary authority and awarding penalties. The charge sheet signed by the disciplinary authority is in fact, not the work of the disciplinary authority, not even directed or approved by him.
Around 1980 the one of the Sr.Managers of MYBANK in the Southern Zone was first suspended, charge sheeted and then dismissed, alleging certain specific acts of misconduct pertaining to his tenure at Madurai Branch. He did not file appeal or a writ petition in the high court, but on legal advice filed a civil suit at Madurai Civil Court, under the provisions of the Specific Relief Act. The disciplinary authority had to take the witness box and testify. He was questioned extensively about the charge sheet and the disciplinary case. This disciplinary authority considered an able and dynamic executive with original disposition, but could not reply to the cross-examination and at one stage he blurted that "these are not looked after by a Dy.General Manager" (referring to his rank). It was proved that the disciplinary authority has inflicted the punishment of dismissal from service to the employee, but was in fact not knowing any material particulars of the case. MYBANK lost the case and paid heavy arrears to the Manager, a colleague of mine, who rejoined service, secured promotion to Scale IV. He after several years retired from MYBANK Hyderabad Main Branch as Chief Manager, a few months prior to my own retirement in 1996.
At the stage of second reference the system is not capable of bringing original thinking and looking to both sides and objectively and arriving at new conclusions. The system knows a linear approach. A straight-line has a beginning and an end and it connects both these points by the shortest route. Disciplinary case is the straight line, the charge sheet being at one end and the order of the disciplinary authority the other. This is the approach of the DAC. In most cases, the disciplinary authority would be giving a conventional order, dittoing the findings of the Inquiry Officer, without any reference to the submissions of the charged officer made in reply to the post-inquiry reference to him.
In this background how to best use the tool of submission of the final submissions by the charged officer?
If the Inquiry officer follows a rational system and considers each and every evidence/argument by both sides and gives his orders, as described in the Guidelines for the Inquiry Officer (Chapter -4)under headingHow to Analyse the Records of Inquiry many discrepancies will not hear. Many Inquiry Officers arrive at tentative conclusions on each imputation or article during the course of the inquiry and thereafter while drafting the report only search for reasons to substantiate the same.
In other cases when senior executives in Scale V and above are appointed as Inquiry Officers, they may hand over the entire records of inquiry to their subordinate officers (unconnected with the inquiry) and request them to prepare the Report of the Inquiry Officer. Thus performing a responsibility engaging a proxy.
Responding to Final Reference -
Operative Guidelines for Charged Officer
Study carefully each and every sentence in the Report of the Inquiry Officer, and leave all imputations/articles where the Inquiry Officer has given a verdict that these are not proved
Restrict your study to only those imputations/articles where the inquiry officer has given the verdict "charge proved".
Note all evidences of the defence in its favour that have been omitted to be considered. That is, the inquiry officer has considered PO's evidence and arrived at its finding without taking into account the defence pleadings.
Similarly where explanations have been tendered by the defence, to what the P.O contends as having been proved by him and these have not been considered, these should be noted.
All instances of biased handling, one-sided handling and errors of logic or judgement should be pointed out.
These omissions to be graded according to the seriousness, and the findings of the Inquiry Officers with reference to these imputations or articles should be requested for reconsideration by the disciplinary authority.
Invariably request for an oral hearing from the disciplinary authority to amplify your points. You are not entitled to get an oral hearing. But that does not warrant that the disciplinary using discretionary decision cannot allow such hearing. In any case your request has to be considered and a reply conveyed to you either allowing or rejecting oral hearing. If the disciplinary authority ignores totally the request for oral hearing, and also fails to take into account, your submissions and delivers his orders completely ignoring your submissions, it is blatantly irregular. This gives you adequate grounds to fight further using avenues available to you
On the other hand if the disciplinary authority is reasonable and takes into account your submissions in the final reference, and modifies the findings of the inquiry officer accordingly, you can have no grievance.
