Authorities competent to initiate disciplinary proceedings against officers lent or borrowed
by one department to another or State Government etc (Paragraph 9).

Where the services of a Government servant have been lent or borrowed by one Department to or from another Department or have been lent to or borrowed from a State Government or an authority subordinate thereto or a local or other authority, the borrowing authority will have the powers of the disciplinary authority for initiating disciplinary proceedings against the Government servant. The lending authority will, however, be informed forthwith of the circumstances leading to the commencement of the disciplinary proceedings. Even if the misconduct was committed while the officer was serving under the lending authority, the borrowing authority is competent to initiate action in respect of such misconduct.

1. In cases relating to Gazetted Officers and other category 'A' officers the CBI send their reports recommending regular departmental action or such action as deemed fit to the Central Vigilance Commission. Simultaneously, a copy of the report is sent by the CBI to the disciplinary authority concerned. If the disciplinary authority has any comments on such a report, the same should be sent to the Central Vigilance Commission within two months of the receipt of the CBI report, so that the Commission may take them into consideration while tendering its advice. It will, however, be open to the Ministries/ Departments, if there are any special circumstances, to approach the Commission in individuals cases for reasonable extension of time to enable them to furnish their comments. If no comments are received within the prescribed/extended period, the Commission will tender advice, on the basis of material before it. It is not necessary to call for the explanation of the officer at this stage as the comments of the authorities required are only on the CBI report. The comments of the Ministries/Departments/Public Undertakings/Nationalised Banks should specifically deal with the following :

   1. If the CBI report deals with technical matters, does the disciplinary authority agree with view taken by the CBI on such question?

   2. If the CBI report deals with departmental procedure and practices, has the position been stated correctly?

   3. Has the factual position as obtainable from the records of the Department correctly stated by the CBI?

   4. If the report deals with the use or abuse of discretion by the accused officer, what has the disciplinary authority to say about the discretionary powers and their use by the accused officer in the case (s) under discussion and also about the exercise of such discretion by other officers in similar situations?

   5. In the Department's view, are there some material witnesses who should have been examined by the CBI but whom the CBI has not, in fact, examined?

   6. Are there any extenuating circumstances in favour of the accused? If so, what are these?

   7. Does the Department agree with the conclusion drawn by the CBI? If not, what are its own conclusions/ recommendations?

   8. If the accused has submitted any representation to the Department relating to the CBI report, the Department should also give its commends on such representation. The above list is only illustrative and the Department is not precluded from offering comments of a general nature or bringing any other relevant matter to the Commission's notice that it may consider necessary. While furnishing the comments to the Central Vigilance Commission, the Ministries/Departments/Public Undertakings/ Nationalised Banks may clearly indicate the respective functions, duties and responsibilities of all the Suspect Officers involved in the case with regard to the impugned transaction.

2. The CBI need not send the original documents to the disciplinary authorities as a matter of course. If in any particular case the disciplinary authority feels the necessity of examining the records in original, it should make a request for the particular records to the CBI who will arrange to produce the requisitioned documents before the disciplinary authority expeditiously. The disciplinary authorities will, however, ensure the safety of the records.

3. The report of the Central Bureau of Investigation is a confidential document and should not be produced before the Inquiry Officer or even before a Court of Law. Privilege can be claimed in a Court of Law under Section 123 or 124 of the Evidence Act. No direct reference should be made about the CBI Report in the statements/ affidavits filed in the Courts of Law, as it would be difficult to claim privilege for the production of documents before a court of law, if a direct reference is made in the statements/affidavits. Reference in the statements/affidavits may be restricted to the material which is contained in the statements of charges and allegations served on the accused public servant.

1. Once a decision has been taken, after a preliminary inquiry, that a prima facie case exists and that formal disciplinary proceedings should be instituted against a delinquent Government servant under the CCA Rules, the disciplinary authority will need to decide whether proceedings should be taken under Rule 14 (i.e. for imposing a major penalty) or under Rule 16 (i.e. for imposing a minor penalty).

2. The choice of the rule at this stage is a matter of vital significance. It will determine the procedure to be followed for the further conduct of the proceedings. The procedure under Rule 14 is much more elaborate than that prescribed under Rule 16. It will be waste of time and effort to adopt the lengthy procedure of Rule 14 in cases in which only a minor penalty is indicated. In a case in which proceedings are initiated under rule 14 (as for a major penalty), if after examining the report of oral inquiry the disciplinary authority considers that it would be sufficient to impose a minor penalty, he can do so. But in a case in which proceedings are initiated under Rule 16 (as for a minor penalty) it would not be possible for the disciplinary authority to impose a major penalty. He would have to start proceedings de novo under Rule 14 if he wants to do it.

3. A decision has to be taken by the disciplinary authority on the basis of the circumstances of each case as revealed by preliminary inquiry and by determining provisionally the nature of the penalty - whether major or minor - that may be imposed upon the Government servant in the event of the satisfactory substantiation of the allegations.

4. Certain types of vigilance cases in which it may be desirable to start proceedings for imposing a major penalty are given below as illustrative guidelines:-

   1. Cases in which there is a reasonable ground to believe that a penal offence has been committed by a Government servant but the evidence forthcoming is not sufficient for prosecution in a court of law, e.g.

      1. Possession of disproportionate assets;

      2. Obtaining or attempting to obtain illegal gratification;

      3. Misappropriation of Government property, money or stores;

      4. Obtaining or attempting to obtain any valuable thing or pecuniary advantage without consideration or for a consideration which is not adequate.

   2. Falsification of Government records;

   3. Gross irregularity or negligence in the discharge of official duties with a dishonest motive.

   4. Misuse of official position or power for personal gain;

   5. Disclosure of secret or confidential information even though it does not fall strictly within the scope of the official Secrets Act;

   6. False claims on the Government like T.A claims reimbursement claims, etc.

5. In cases in which the institution of proceedings is advised by the Central Vigilance Commission, the Commission will also advise, keeping in view the gravity of the allegations, whether proceedings should be initiated for the imposition of a major penalty or a minor penalty.

1. In cases in which the disciplinary authority decides that proceedings should be initiated for imposing a minor penalty, the disciplinary authority will inform the Government servant concerned in writing of the proposal to take action against him by a Memorandum accompanied by a statement of imputations of misconduct or misbehaviour for which action is proposed to be taken, giving him such time as may be considered reasonable, ordinarily not exceeding ten days, for making such representation as the Government servant may wish to make against the proposal. In this Memorandum no mention should be made of the nature of the penalty which may be imposed. The Memorandum and the statement of imputations of misconduct or misbehaviour should be drafted by the Chief Vigilance Officer/Vigilance Officer. The memorandum should be signed by the disciplinary authority and not by any one else on its behalf.

2. 12.2. If the competent disciplinary authority in respect of the Government servant against whom action proposed to be taken is the President, the file should be shown to the Minister concerned before the charge-sheet is issued and the memorandum should be signed in the name of the President by an officer competent to authenticate orders on behalf of the President under Article 77 (2) of the Constitution.

3. 12.3 Rule 16 of the CCA Rules does not provide for the accused Government servant being given the facility of inspecting records for preparing his written statement of defence. There may, however, becases in which documentary evidence provides the main grounds for the action proposed to be taken. The denial of access to records in such cases may handicap the Government servant in preparing his representation. Request for inspection of records in such cases may be considered by the disciplinary authority on merits

4. 12.4. After taking into consideration the representation of the Government servant or without it if no such representation is received from him by the date specified, the disciplinary authority will proceed, after taking into account such evidence, as it may think fit, to record its findings on each imputation of misconduct or misbehavior.

5. 12.5. If as a result of its examination of the case and after taking the representation made by the Government servant into account, the disciplinary authority is satisfied that the allegations have not been proved, it may exonerate the Government servant. An intimation of such exoneration will be sent to the Government servant in writing.

6. 12.6. In case the disciplinary authority is of the opinion that the allegations against the Government servant, stand substantiated, it may impose upon him any of the minor penalties specified in Rule 11 of the CCA Rules. In the order imposing a formal penalty it is not desirable to refer to the advice given by the Central Vigilance Commission to the disciplinary authority.

7. 12.7. In cases in which minor penalty proceedings were instituted on the advice of the Central Vigilance Commission, consultation with the Commission at the stage of imposition of the penalty is not necessary if the disciplinary authority decides to impose one of the minor penalties specified in Rule 11 of the CCS (CCA) Rules, 1965 or other corresponding rules. In such cases a copy of the order imposing minor penalty should be endorsed to the Commission. This does not apply to minor penalty cases where oral inquiry has been ordered. In such cases, the Commission would tender second stage advice after considering the report of the Inquiring Authority. This does not also apply to cases where the disciplinary authority decides not to impose any of the minor penalties. In other words, cases in which the disciplinary authority decides to hold oral Inquiry or to drop the proceeding will have to be referred to the Commission. While referring the case, the records of the case will have to be sent to the Commission. Where any statement have been made in the representation of the Government servant to controvert the allegations, the Commission's attention will be specifically drawn to the correct facts.

8. 12.8. In case the Government servant is one whose services had been borrowed from another department or, office of a State Government or a local or other, authority and if other borrowing authority, who has the powers of disciplinary authority for the purposes of conducting a disciplinary proceedings against him, is of the opinion that any of the minor penalties specified in clauses (i) to (iv) of Rule 11 of the CCA Rules should be imposed, it may make such orders on the case as it deems necessary after consultation with the lending authority. In the event of difference of opinion between the borrowing authority and the lending authority, the services of the Government servant will be replaced at the disposal of the lending authority.

9. 12.9. Under Rule 16(1) (b) of the CCA Rules, the disciplinary authority may, if it thinks fit, in the circumstances of any particular case, decide that an inquiry should be held in the manner laid down in sub-rules (3) to (23) of Rule 14 of the CCA Rules. The implication of this rule is that on receipt of representation of Government servant concerned on the imputations of misconduct or mis-behaviour communicated to him, the disciplinary authority should apply its mind to all facts and circumstances and the reasons urged in the representation for holding a detailed inquiry and form an opinion whether an inquiry is necessary or not. In a case where a delinquent Government servant has asked for inspection of certain documents and cross examination of the prosecution witnesses, the disciplinary authority should naturally apply its mind more closely to request and should not reject the request solely on the ground that an inquiry is not mandatory. If the records indicate that, notwithstanding the points urged by the Government servant, the disciplinary authority could after due consideration, come to the conclusion that an inquiry is not necessary, it should say so in writing indicating its reasons, instead of rejecting the request for holding inquiry summarily without any indication that it has applied its mind to the request, as such an action could be construed as denial of natural justice. In cases in which it is decided to hold an inquiry, all the formalities beginning with the framing of articles of charge, statement of imputation etc, will have to be gone through. The procedure to be followed will be the same as prescribed for an inquiry into a case in which a major penalty is proposed to be imposed. Such inquiry will be entrusted to one of the Commissioners for Departmental Inquiries attached to the Central Vigilance Commission in cases in which the proceedings were instituted on the advice of the Central Vigilance Commission. Form E (1-A) is to be issued for initiation of minor penalty proceedings in cases where the disciplinary authority decides to hold the enquiry.

10. 12.10 If in a case it is proposed after considering the representation, if any, submitted by a Government servant, to withhold increments of pay for a period exceeding three years or to withhold increments of pay with cumulative effect for any period or if the penalty of withholding of increments is likely to affect adversely the amount of pension payable to the Government Servant, an oral inquiry shall invariably be held in the manner laid down in sub-rules (3) to (23) of rule 14 of the CCA Rules.

11. 12.11 In cases in which proceedings have been initiated under rule 16(1) (a) of the CCA Rules and where no oral inquiry has been held, a reference will be made to the UPSC, in cases in which consultation with UPSC is required, after the representation, if any, of the Government servant against the proposal to take action against him has been received in the form of an official letter. In cases in which proceedings were initiated under rule 16(1)(b) of the CCA Rules and where an oral inquiry has been held, the UPSC will be consulted after the receipt of the report of the Inquiring Authority. The record of the case will be forwarded to the Commission with clarifications/comments, where necessary to explain any factual/procedural points only in the light of any remarks contained in the Inquiry Report. This note will form part of the record.

12. The record of proceedings in such cases shall include :-

    1. A copy of the intimation to the Government servant of the proposal to take action against him;

    2. A copy of the statement of imputations of misconduct or misbehaviour delivered to him;

    3. His representation, if any;

    4. The evidence produced during the inquiry if an inquiry is held in the manner laid down in sub rules

    5. (3) to (23) of Rules 14 of CCA Rules;

    6. The advice of the Union Public Service Commission, if any;

    7. The findings on each imputation of misconduct or misbehaviour; and

    8. The orders on the case together with the reasons thereof.

1. Rule 14(1) of the CCA Rules provides that no order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry has been held in the manner prescribed in Rules 14 and 15 of the CCA Rules or in the manner provided by the Public Servants (Inquiries) Act, 1850, where an inquiry is held under that Act.

2. Ordinarily an inquiry will be made in accordance with the provisions of Rule 14 of the CCA Rules. However, in respect of a Government servant who is not removable from his office without the sanction of Government, the disciplinary authority, which will be the President in the case of such a Government servant, may decide to make use of the procedure laid down in the Pubic Servants (Inquiries) Act, 1850 (hereafter referred to as the ìActî) if it is considered that there are good grounds for making a formal and public inquiry into the truth of any imputation of misbehaviour on his part.

3. The choice of the procedure is a matter within the discretion of the disciplinary authority. It is not obligatory to proceed under the Act when Government proposes to take action against a Government servant covered by the Act (Venkataraman Vs. Union of India A.I.R. 1954, SC 375).

4. There is no material difference in the scope of the two procedures which is to make a fact-finding inquiry to enable Government to determine the punishment which should be imposed upon the delinquent officer. Like the proceedings under the CCA Rules the Commission (s) appointed under the Act to make the inquiry do not constitute a judicial tribunal though they possess some of the trappings of a court. The findings of the Commissioner (s) upon the charge are a mere expression of opinion and do not partake of the nature of a judicial pronouncement and the Government is free to take any action it decides on the report.

5. The holding of an inquiry against a Government servant under the Act does not involve any discrimination and will not give him cause to question the conduct of an inquiry against him on that ground within the meaning of Article 14 of the Constitution. A person against who an inquiry has been held under that Act could not claim a further or a fresh inquiry under the CCA Rules (Venkataraman Vs. Union of India).

6. The procedure under the Act is, however, distinguishable from the provisions of the disciplinary rules in that while an inquiry made under the Act is a public inquiry, a departmental inquiry made under the relevant disciplinary rules is not so. Another distinguishing feature is that the Commissioner (s) appointed under the Act have the power of punishing contempts and obstructions to the proceedings and of summoning witnesses and to compel production of documents. These factors will need to be taken into account in deciding whether in any particular case the procedure of the Act should be adopted or not. An inquiry under the provisions of the Act is generally made in a case in which a high official is involved and it is considered desirable in the circumstances of the case to have a public inquiry. Generally a judicial officer like a Judge of a High Court is appointed as a Commissioner to conduct an inquiry under the Act. That procedure will, however, not be found suitable in a case which might involve the disclosure of information or production of documents prejudicial to national interest or to the security of the State.