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[Reproduced from Publication of CVC]
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Vigilance Management In Public Sector Banks vis-a-vis The Role And Functions of The CVC
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Procedure for Imposing Major Penalty (Paragraph 12 contd)
Submission of Inquiry Report
After considering the oral and documentary evidence adduced during the inquiry, the IO may draw his own inferences, as a rational and prudent person, and record his findings on each charge. He should rely only on such facts as the CO had the opportunity to refute. Generally, the CO raises a plea of absence of malafides. It is clarified that the PO is not expected to prove malafides in cases where the act itself speaks of a dishonest motive e.g. a person travelling without ticket in a train or a person who has been unable to explain his assets satisfactorily. Malafides, however, are not relevant in proving a misconduct as it does not form an essential ingredient of it. Also, every act of a public servant is expected to be honest, bona-fide and reasonable. An act is not bona fide if it is committed without due care and attention. While assessing the evidence, the IO should also bear in mind that the proceedings are civil rather than criminal or quasi-criminal in nature. Accordingly, the standard of proof required in a disciplinary inquiry is that of "preponderance of probability" and not "proof beyond reasonable doubt". The IO should confine his conclusion only upto the stage of recording whether the charge is proved, or partially proved or not proved. The conclusion should be derived from the facts and circumstances of the case and not on its extenuating aspects. He should not recommend the punishment to be imposed on the CO. Neither is he required to comment on the quality of drafting of the charge-sheet, nor the conduct of the disciplinary authority in framing the charges or that of the PO in arguing the same. The IO becomes functus officio as soon as he submits the report and cannot make any change thereafter. The initial burden in the inquiry of proving the charge with evidence on record is that of the prosecution. Once the same is discharged, the burden of disproving the same and/or bringing to light special circumstances relating to the innocence of the C.O. will be that of the latter. Otherwise, the proceedings being only of quasi-judicial rather than judicial in nature, the strict rules of evidence stipulated in the Evidence Act would not be applicable except to the extent specifically indicated in the relevant rules. The report of the IO should contain:
A reference to the order of his appointment as IO. Articles of charge in brief, indicating those which are dropped, or admitted, or have been inquired into; For each charge inquired into
the case in support of the charge; the case of defence; assessment of evidence; and the findings; A brief summary of the findings. The report should be accompanied by essential documents, namely, the charge-sheet, depositions of witnesses recorded during the inquiry, daily order-sheets, list of exhibits, exhibits and the correspondence files of the IO. The IO would, in all cases, submit the report to the disciplinary authority, with extra copies, one each for the CO and the CBI, if the case had been investigated/presented by them. However, in cases in which a CDI conducts the inquiry, he would also submit a copy of the report to the Secretary of the Commission. The IO must complete the inquiry proceedings and submit his report within a period of six months from the date of his appointment. Action on Inquiry Report
The IO's report is intended to assist the disciplinary authority in coming to a conclusion about the guilt of the CO. The disciplinary authority has the inherent powers to disagree with the findings of the IO and come to his own conclusions on the basis of his own assessment of the evidence forming part of the inquiry. In view of the Supreme Court's judgement in Ramzan Khan's case, if the disciplinary authority is different from the inquiring authority, and if the latter has held all or any of the charges against the CO as proved, the disciplinary authority should ask the CO for his representation, if any, within 15 days. In case the IO has held any or all the charges against the CO as "not proved", the disciplinary authority should consider the IO's report in the first instance. If he disagrees with the IO's findings, he should communicate his reasons for disagreement, to the CO while asking for his representation. The disciplinary authority may take further action on the inquiry report on consideration of the CO's representation or on the failure of the CO to submit the same within the specified time. The disciplinary authority, in exercise of his quasi-judicial powers, may issue an order imposing a major or a minor penalty on the CO; or exonerate him of the charges, if in its opinion, none of the charge has been proved or what has been proved, is non-actionable. He may remit the case for further inquiry if he considers that there are grave lacunae or procedural defects which vitiate the inquiry. The fact that the inquiry has gone in favour of the CO or the evidence led in the inquiry has gaps, should not be a reason for remitting the case for further inquiry (Dwarka Chand Vs State of Rajasthan - AIR 1959 Raj. 38). In such a case, the disciplinary authority may disagree with the IO's findings. The final order passed by the disciplinary authority should be a well-reasoned speaking order. The cases requiring the Commission's advice may be referred to it, in the form of a self-contained note, along with the following documents:
The IO's report and the connected records; Disciplinary authority's tentative findings on each article of charge; Representation of the CO on the inquiry report; and Tentative conclusions of the disciplinary authority and CVO Wherever the inquiry proceedings have been delayed, the CVO shall specifically comment on the delay fixing accountability for the delay and the action taken/proposed against those responsible for the same. While imposing a punishment on the officer, the disciplinary authority should ensure that the punishment imposed is commensurate with the gravity of the misconduct proved against the CO. He may also take into account at this stage the following other criteria:
the extenuating circumstances, as they emerge from the inquiry; and the track record of the charged officer. It should also be ensured that the punishment so imposed is not academic or ineffective; for example, there is no point in imposing a penalty of withholding of an increment, if the CO has already been drawing pay at the maximum of the pay scale. Similarly, there is no point in imposing a penalty of withholding of promotion for a specified period if the officer is not due for promotion.
Procedure for Imposing Minor Penalties (Paragraph 13)
The procedure for imposing a minor penalty is much simpler as compared to the procedure for imposing a major penalty. For the imposition of the latter, the disciplinary authority is only required to serve a Memorandum on the concerned employee, enclosing therewith a statement of imputations of misconduct or misbehaviour and asking for a reply within a specified period, generally 10 days. On receipt of the written statement of defence, if the disciplinary authority is satisfied that the misconduct imputed to the CO has not been established, he may, through a written order, drop the charges. On the other hand, if the disciplinary authority considers the CO guilty of the misconduct in question, he may impose one of the minor penalties. The disciplinary authority, in his discretion, may also decide to conduct an inquiry following the same procedure as stipulated for the imposition of a major penalty, if in his opinion, holding of an inquiry is necessary to come to a definite conclusion about the guilt or innocence of the CO. In cases, where minor penalty proceedings were instituted against an employee on the advice of the Commission, the Commission need not be consulted at the second stage if the disciplinary authority, after considering the defence statement, proposes to impose a minor penalty. But in cases where the disciplinary authority proposes to drop the charges, or an inquiry has been conducted, second stage consultation with the Commission is necessary.
Appeal and Review (Paragraph 14)
If in appeal or review, the appellate/reviewing authority proposes to modify the original order of punishment, the Commission's advice would not be necessary where such modification remains within the parameters of the Commission's original advice. For example, if on the Commission's advice for imposition of a major penalty, the appellate, or reviewing authority proposes to modify the original penalty imposing such a penalty with another major penalty, the Commission's advice at the appellate/review stage would not be necessary. On the other hand, in the instant case, if the modified penalty is not a major penalty, the Commission's advice would be necessary.
Where the Commission has not advised a specific penalty, the CVO shall scrutinise the final orders passed by the Disciplinary Authority and ascertain whether the penalty is commensurate with the nature and gravity of the lapses. If the punishment imposed is inadequate or inappropriate, he may recommend a modification thereof to the Reviewing Authority. On satisfying himself that a case for review exists, the latter may thereafter, assume jurisdiction over the case as provided for under the rules.
Action against Persons Making False Complaints (Paragraph 15)
Section 182 IPC provides for prosecution of a person making a false complaint.. Therefore, if a complaint against a public servant is found to be malicious, vexatious or unfounded, serious action should be considered against the complainant. Section 182 IPC reads as under: "Whoever gives to any public servant any information which he knows orbelieves to be false intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:
to do or omit anything which such public servant ought to do or omit if the true state of facts respecting which such information is given were known by him, or to use the lawful power of such public servant to the injury or annoyance of any person; shall be punished with imprisonment of either description for a term which mayextend to six months, or with fine which may extend to one thousand rupees, or with both." Under Section 195(1)(e) Cr.P.C., a person making a false complaint can be prosecuted on a complaint lodged with a court of competent jurisdiction by the public servant to whom the false complaint was made or by some other public servant to whom he is subordinate. Alternatively, if the complainant is a public servant, it may also be considered whether departmental action should be taken against him as an alternative or in addition to prosecution. When the Commission comes across any such complaint in the normal course of its functioning, it would advise the administrative authority concerned about appropriate action to be taken on its own initiative. However, in respect of cases which do not fall within the Commission's normal jurisdiction, the organisation concerned may decide the matter on its own as it deems fit.
Difference of Opinion Between the CVO and the CMD (Paragraph 16)
Where there is a difference of opinion between the disciplinary authority and the CVO with regard to cases which are not to be referred to the Commission, the CVO may report the matter to the next higher authority/CMD for the resolution of the difference of opinion between the two. However, if the CMD himself is the disciplinary authority in the case and there is an unresolved difference of opinion between him and the CVO, the CVO may report the matter to the Commission for advice.
Grant of Immunity to 'Approvers' in Departmental Inquiries (Paragraph 17)
It is felt that in cases of serious nature, the evidence of "Approvers" may sometimes lead to considerable headway in investigation of cases. This also facilitates booking of offences/misconduct of more serious nature. Therefore, the following procedure may be followed for grant of immunity/leniency to a public servant in the cases investigated by the CVO:
If during an investigation, the CVO finds that an officer, in whose case the advice of the Commission is necessary, has made a full and true disclosure implicating himself and other public servants or members of the public and further that such statement is free from malice, the CVO may send his recommendation to the CVC regarding grant of immunity/leniency to such officer from departmental action or punishment. The Commission would consider the CVO's recommendation and advise that authority regarding the further course of further action; In cases pertaining to officials against whom the Commission's advice is not necessary, the recommendation for grant of immunity/leniency may be made to the CVO who would consider and advise the disciplinary authority regarding the further course ofaction. If there is a difference of opinion between the CVO and the disciplinaryauthority, the CVO would refer the matter to the Commission for advice.
Observance of the Limits in Conducting Investigations and Departmental Inquiries (Paragraph 18)
Delays in disposal of disciplinary cases are a matter of serious concern to the Government and the Commission. Such delays also affect the morale of the delinquent employee and others in the organisation. Therefore, in order to ensure that disciplinary cases are disposed of quickly, the CVO should ensure that the following time limits are strictly adhere to:
| S.NO. |
State of Investigation or inquiry. |
Time Limit. |
| 1 |
Decision as to whether the complaint involves a vigilance angle |
One month of receipt of the complaint. |
| 2 |
Decision on complaint, whether to be filed or to be entrusted to CBI or to be taken up for investigation by departmental agency or to be sent to the concerned administrative authority for necessary action. |
One month of receipt of the complaint. |
| 3 |
Conducting investigation and
submission of report |
Three months. |
| 4 |
Department's comments on the CBI reports in cases requiring Commission's advice . |
One month from the date of receipt of CBI's report by the DA |
| 5 |
Referring departmental investigation reports to the Commission for advice |
One month from the date of receipt of investigation report. |
| 6 |
Reconsideration of the Commission's advice, if required |
One month from the date of
receipt of Commission's advice |
| 7 |
Issue of charge-sheet, if required |
(i) One month from the date of Commission's advice. (ii) Two months from the date of receipt of investigation report. |
| 8 |
Time for submission of defence
statement. |
Ordinarily ten days |
| 9 |
Consideration of defence statement. |
15 (Fifteen) days. |
| 10 |
Issue of final orders in minor penalty cases. |
Two months from the receipt
of defence statement. |
| 11 |
Appointment of IO/PO in major
penalty cases |
Immediately after receipt and
consideration of defence statement |
| 12 |
Conducting departmental inquiry and submission of report. |
Six months from the date of
appointment of IO/PO. |
| 13 |
Sending a copy of the IO's report to the CO for his representation. |
(i) Within 15 days of receipt of IO's report if any of the Articles of charge has been held as proved; (ii) 15 days if all charges held as not proved. Reasons for disagreement with IO's findings to be communicated.
|
| 14 |
Consideration of CO's representation and forwarding IO's report to the Commission for second stage advice. |
One month from the date of
receipt of representation. |
| 15 |
Issuance of orders on the Inquiry
report. |
(i) One month from the date of Commission's advice. (ii) Two months from the date of receipt of IO's report if Commission's advice was not required. |
Supervision over Vigilance Activities (Paragraph 19)
The Commission exercises general superintendence over the vigilance administration and anti-corruption work in the public sector banks. In order to enable the Commission to discharge this function effectively, the Banks would henceforth submit a quarterly report on receipt, disposal and pendency of complaints and vigilance cases to the Commission in the prescribed format. This report would include the list of cases against officers in Scale -III and above as might have been closed/handled by the administrative authorities on their ownon the ground that they did not involve a vigilance angle, or were otherwise found to be baseless.
Institutional Meetings (Paragraph 20)
The CVC would conduct quarterly meetings with the CVO of the Banking Division and a representative each of the RBI and the CBI with a view to sharing information and discussing matters of common interest. The CVO of a bank may also be coopted as a participant for a particular meeting if any of the matters proposed to be discussed in the meeting pertains to him and it is felt that his presence would be of help in taking an appropriate view in the matter.
Reporting and Confirmation (Paragraph 21)
In the normal course of discharging their functions, Bank officials may, on occasions, be required to exceed their powers/discretion, in organisational interests. After such a transaction has taken place, it should be immediately reported to the controlling authority for confirmation. The latter will grant or reject such requests for ratification within 15 days of the receipt of the report. In case queries/clarification are necessary for grant of such confirmation, the controlling authority may take another 15 days for taking the final action in this regard. It should, however, in all circumstances, ensure that such decision is taken within a period of one month of the receipt of the original report. Otherwise, the transaction in question shall be deemed to have been ratified by it. When, however, a transaction has to be ratified under the powers of the Board, the confirmation in respect of such a transaction may be obtained from the latter in its next meeting.
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