The process of Disciplinary proceedings from the point of issue of charge sheet upto the disposal of the case after receipt of the report of inquiry officer have to be objective and bonafide. Such objectivity precludes pre-set opinion in the minds of the dealing authority. The roles of the Investigating officer and that of the disciplinary authority necessitate different mind-set. The investigating officer is probing transactions in terms of a reference on a fact-finding mission. His report establishes only prima facie conclusions. These are to be tested for their accuracy in the inquiry by allowing the charged officer full freedom to present his counter-arguments and evidences against the allegations. If the Investigating officer is to act as the disciplinary authority he cannot be considered as unbiased, since having conducted the investigations and arriving at tentative conclusions, his mind-set gets pre-fixed and cannot be considered open and objective. He has in short to adjudicate against his own earlier findings in his report. This results in a role-conflict.
However the Central Vigilance Commission holds a different view. Its guidelines in, paragraph 9, Chapter 13 of its Manual is reproduced as under:
9. Whether a disciplinary authority can initiate disciplinary proceedings if it has conducted the preliminary enquiry.
The object of a preliminary enquiry is to ascertain whether a prima facie case exists against the official and it is on the basis of this enquiry that the disciplinary authority decides whether disciplinary proceedings should be initiated. No firm conclusion regarding the guilt of the official is or need be expressed on the conclusion of a preliminary enquiry. The fact that the disciplinary authority conducted the preliminary enquiry, therefore, operates as no bar to the same authority initiating formal disciplinary proceedings.
Technically there can be no bar for the same officer to conduct investigation and also to act as disciplinary authority. The charged officer cannot object to the arrangement unless he is to make out a case that his interests are adversely affected and the dual-role results in miscarriage of justice. Initially he will not be able to make such an plea. But this definitely cannot be considered an ideal situation. If decision of the disciplinary authority on account of the inherent contradictions in the role-conflict turns subjective, and results in getting orders issued by the disciplinary authority reversed in subsequent appeal or judicial review, it does not bring credit to the disciplinary management system. At this stage the Charged officer will use this as a powerful plea. Bonafide inquiry process is a pre-requisite for objective decisions and on this ground the dual role is not recommended
The special feature of a departmental inquiry is that the employer conducts both the prosecution and the adjudication. The inherent weakness of the system is neutralised by dividing the functions of prosecution and adjudication amongst different officers and when this is combined, it only weakens the process and not add strength to it.
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What are the Differences between the Inquiry Procedures for
Major and Minor Penalty Cases?
The salient differences are listed below:
Major penalties result in withdrawing existing benefits or reducing the same. After a major penalty is inflicted, the delinquent officer cannot continue to enjoy the same benefits that he had earlier before the penalty was inflicted. On the other hand the imposition of a minor penalty does not result in withdrawing existing benefits, but denies one or more of benefits to accrue in future. Reduction of one increment in the existing scale means loss of part of the existing salary. This is a major penalty. The salary that the employee gets after the punishment is less than that he was earlier getting. On the other hand if he is given a punishment of stoppage of one increment (next increment), his present salary is not disturbed, but a future increase is stopped.
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Awarding Minor penalties by their nature is generally deemed as an administrative process and most of the facilities available to the delinquent officer with regards to submission of his defence in respect of a major-penalty inquiry are not available to him. In fact Article 311 of the Constitution, providing "reasonable opportunity" to the delinquent officer covers only major-penalty inquiries and does not apply in case minor penalty-enquiries. In particular judicial courts have also held that a delinquent officer awarded the penalty of "censure" by his employer is not eligible to demand provisions of natural justice. This is so because the employer himself has accepted a very lenient view in these proceedings, it is essentially deemed an administrative process, though conducted under statutory regulations. What all is needed is that the prescribed procedure as per DA regulations to be strictly followed and punishments, if any, awarded should be for valid reasons.
An oral inquiry is not compulsory for a minor penalty proceeding, while it is a must when major penalties are to be awarded. When no oral inquiry is conducted for a minor penalty proceeding, no appointment of inquiry officer and presenting officer will be made.
The charge sheet issued for minor penalties need not contain an article of charge and may consist of only a statement of imputations, while in respect of a major penalty inquiry both articles of charge and statement of imputations of misconduct must accompany the memorandum of charge-sheet.
