Conduct & Disciplinary Rules - 79 & 80 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

Conduct & Disciplinary Rules - 79 & 80 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C

Conduct & Disciplinary Rules – 79

CCS Rules & Principles of Natural justice

1.    Consequence of breach of natural justice in departmental enquiry

A recent two-judge Bench of the Supreme Court after an elaborate discussion (noting leading authorities) has summarised the position in relation to disciplinary proceedings as follows :

"We may summarise the principles emerging from the above discussion. (These are by no means intended to be exhaustive and are evolved keeping in view the context of disciplinary enquiries and orders of punishment imposed by an employer upon the employee):

(1) An order passed imposing a punishment on an employee consequent upon a disciplinary departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.

(2) A substantive provision has normally to be complied with as explained hereinbefore and the theory of substantial compliance or the test of prejudice would not be applicable in such a case.

(3) In the case of violation of a procedural provision, the position is this: Procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under- "no notice", "no opportunity" and "no hearing" categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer/employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice. The court may not insist on proof of prejudice such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/Government is over, the employee shall be given an opportunity to lead defence in his evidence, and in a given case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No proof of prejudice as such need be called for in such a case. To repeat, the test is one of prejudice., i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.

(4) (a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.

 

(b) In the case of violation of a procedural provision, which is of mandatory character, it has to be ascertained whether the provision is conceived in the interest of the person proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement, either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/ employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (including the setting aside of the order of punishment), keeping in mind the approach adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same viz., test of prejudice or the test of fair hearing, as it may be called.

(5) Where the enquiry is not governed by any rules/regulation/ statutory provisions and the only obligation is to observe the principles of natural justice - or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/action - the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partem) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between "no opportunity" and no adequate opportunity i.e., between "no notice" / "no hearing" and "no fair hearing ". (a) In the case of former, the order passed would undoubtedly be invalid (one may call it 'void' or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem) (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. [It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere].

(6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/Tribunal/Authority must always bear in mind the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.

(7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the Court may have to balance public/State interest with the requirement of natural justice and arrive at an appropriate decision."

[State Bank of Patiala v. S. K. Sharma, (1996) 3 SCC 364; AIR 1996 SC 1669] 

Conduct & Disciplinary Rules – 80

CCS Rules & Principles of Natural justice

1.    When principles of Natural justice not attracted

(a) where the employee pleads guilty in the rules.

(b) where interim suspension is directed pending enquiry

(c) disclosure of sensitive information

(d) where no rights are affected

(e) where rules expressly authorise enquiry to proceed ex parte in certain circumstances.

(f) Where deprivation of hearing is caused through negligence of lawyers.

2.    Where Natural Justice violated - Few Illustrations

a) Where one of the members of the Selection Committee was himself a candidate for selection, principles of natural justice were violated.

(b) Where author members were present in the committee constituted for selection of books written by them, it was violation of the rules of natural justice.

c) Where in a departmental enquiry, the management was allowed to be represented by a trained officer and a delinquent officer was denied legal representation, it was held that principles of natural justice were not observed.

Man with the social frame has struggled for centuries to bring into the community the concept of fairness and it has taken scores of years for the rules of natural justice to conceptually enter into the field of social activities. As Krishna Iyer J. says "indeed, from the legendary days of Adams and of Kautlya's Arthashastra the rule of law has had this stamp of natural justice which makes it social justice."

Let us hereafter discuss about the CCS(CCA) Rules 1965.

In the CCS (CCA) Rules 1965, there are 35 Rules divided into nine parts in total. Part I contains three rules under the caption of “General”. Rule 3 deals with the application of these rules in the disciplinary proceedings. All (regular) Government servants are civil servants under these rules.  In the Department of Posts, there is a separate set of disciplinary rules for GDS called as Gramin Dak Sevaks (Conduct and Engagement) Rules 2020. Rule (Note II (V) below Rule 3) (Terms and conditions of engagement Rule (v) says “A. Sevak shall be out of the civil service of the union”. The GDS is always kept away from the purview of CCS (Conduct) Rules and CCS (CCA) Rules.