DISCIPLINARY PROCEEDINGS AGAINST DISTRICT COURT EMPLOYEE AND RECONSTRUCTION OF RECORD: IN UP COURTS

 

DISCIPLINARY PROCEEDINGS AGAINST DISTRICT COURT EMPLOYEE AND RECONSTRUCTION OF RECORD:

Object

1. To punish the guilty

2. Causing the deterrent effect on others

Departmental Inquiry is to maintain discipline in the service and efficiency of public service. The inquiry in a departmental proceeding relates to the conduct or breach of duty by the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law.

Conduct rules have been framed for regulating the conduct of government servants. Violation or Omission of Conduct Rules is treated as misconduct. Rule 23 of Chapter-VI of the 'Uttar Pradesh State District Court Service Rules, 2013' provides for the complete procedure to be adopted in the matter of disciplinary proceedings against the employees of the District Courts in UP and also for the penalty awardable against them and the appeal against such penalties. Rule 2 (16) of these Rules define Misconduct in the following words:-

“‘misconduct’ for the purpose of these Rules shall mean as defined in Rule 3 of the Uttar Pradesh Government Servants Conduct Rules, 1956.”

Rule 3 of Uttar Pradesh Government Servants Conduct Rules, 1956 provide as under:

3. General.- (1) Every Government servant shall at all times maintain absolute integrity and devotion to duty.

(2) Every Government servant shall at all time conduct himself in accordance with the specific or implied orders of Government regulating behavior and conduct which may be in force.

What includes disciplinary proceedings?

1. Demanding explanation

2. Holding preliminary inquiry

3. Suspension

4. Holding inquiry for minor or major punishment

5. Appeal

6. Review

Laws governing disciplinary proceedings against civil servants:

Laws governing the disciplinary proceedings against the public servants are as under:

(i) Articles 309, 310, 311 of the Constitution of India

(ii) Rules providing for the conditions of service of the delinquent public servant.

(iii) The Public Servants (Inquiries) Act, 1850

(iv) The Uttar Pradesh Government Servants Conduct Rules, 1956

(v) The Uttar Pradesh Government Servants (Discipline & Appeal) Rules, 1999

(vi) Section 4 of the Uttar Pradesh Departmental Inquiries (Enforcement of Attendance of Witnesses & Production of Documents) Act, 1976

(vii) Orders XVI & XVI-A of the Code of Civil Procedure, 1908

(viii) Uttar Pradesh Class II Services (Imposition of Minor Punishment) Rules, 1973

(ix) U.P. Temporary Government Servants (Termination of Service) Rules, 1975

(x) Rules 53 & 54 etc. of the Financial Hand Book, Volume II, Parts II to IV

(xi) Certain Provisions like Rules 16 etc. of the U.P. General Clauses Act, 1904

(xii) Rule 27 etc of the Central General Clauses Act, 1897

(xiii)The Uttar Pradesh State Public Service Commission (Regulation of Procedure) Act, 1985 (xiv) Regulation 351-A of Civil Services Regulations

(xv) Judicial Pronouncements

(xvi) Principles of Natural Justice

(xvii) Govt. Notifications & G.Os. Etc

(xviii) Departmental Circulars

"Integrity" & its meaning:

As regards the meaning of the word "integrity", the Hon'ble Supreme Court in the case of Vijay Singh Vs. State of UP & others, (2012) 5 SCC 242 has defined the said word thus : "integrity means soundness of moral principle or character, fidelity, honesty, free from every biasing or corrupting influence or motive and a character of uncorrupted virtue. It is synonymous with probity, purity, uprightness, rectitude, sinlessness and sincerity."

Nature of Departmental proceedings 'quasi-judicial’:

Holding departmental proceedings and recoding finding of guilt against any delinquent and imposing punishment for same is a quasi-judicial function and not an administrative function. Hence, authorities have to strictly adhere to statutory rules while imposing punishment.

PROCEDURE FOR DISCIPLINARY PROCEEDINGS & PENALTY ETC AWARDABLE AGAINST THE EMPLOYEES OF DISTRICT COURTS IN UP W.E.F. 04.07.2013:

Rule 23 of Chapter-VI of the 'Uttar Pradesh State District Court Service Rules, 2013' provides for the complete procedure to be adopted in the matter of disciplinary proceedings against the employees of the District Courts in UP and also for the penalty awardable against them and the appeal against such penalties.

With the coming into force of the 'Uttar Pradesh State District Court Service Rules, 2013' w.e.f. 04.07.2013 vide UP Government's Notification No. 1060/VII-Nyaya-2-2013- 176G/2010 Lucknow, dated July 4, 2013, the following rules governing the service conditions, etc of the employees of the District Courts in UP have stood repealed by Rule 29 of the said 2013 Rules :

(i)The Subordinate Civil Courts Ministerial Establishment Rule, 1947

(ii)The Uttar Pradesh Subordinate Civil Courts Inferior Establishment Rules, 1955,

(iii)The Uttar Pradesh Subordinate Courts Staff (Punishment and Appeals) Rules, 1976

(iv)Rule 269 of the General Rules (Civil), 1957

CHAPTER-VI DISCIPLINE & APPEAL RULE

23(1): One or more of the following penalties for good and sufficient reasons may be imposed on a member of the Service, namely;

Minor Penalties

(i) Censure;

(ii) Withholding of increment for a specified period;

(iii) Stoppage of an efficiency bar;

(iv) Recovery from pay of the whole or part of any pecuniary loss caused by negligence or breach of orders, to the Government or the High Court;

(v) Fine in case of persons holding Group 'D' posts :

Provided that the amount of such fine shall in no case exceed twenty-five percent of the month's pay in which the fine is imposed.

Major Penalties:

(i) Withholding of increments with cumulative effect,

(ii) Reduction to a lower post or grade or time scale or to a lower stage in time scale;

(iii) Removal from service which does not disqualify from future employment

(iv) Dismissal from the service which disqualifies from future employment.

Explanation: The following shall not amount to penalty within the meaning of this rule, namely:-

(i) Withholding of increment of a member of the service for failure to pass a department examination or for failure to fulfil any other condition in accordance with the rules or orders governing the service.

(ii) Stoppage of the efficiency bar in the time scale of pay on account of one's not being found fit to cross the efficiency bar;

(iii) Reversion of a person appointed on probation to the service during or at the end of the period of probation in accordance with the terms of appointment or the rules and orders governing such probation.

(iv) Termination of the service of a person appointed on probation during or at the end of period of probation in accordance with the terms of the service or the rules and orders governing such probation.

(2) Suspension:

(i) A member of the service against whose conduct an enquiry is contemplated, or is proceeding, may be placed under suspension pending the conclusion of the enquiry in the discretion of the appointing authority;

Provided that suspension should not be resorted to unless the allegation against the employee are so serious that in the event of their being established, may ordinarily warrant major penalty;

Provided further that the head of the department by an order in this behalf may place an employee under suspension under this rule;

Provided also that the appointing authority may delegate its power under this rule to the next lower authority.

(ii) An employee in respect of or against whom, an investigation, enquiry or trial relating to a criminal charge, which is connected with his position as an employee of Court or which is likely to be embarrassing in discharge of his duties or which involves moral turpitude, is pending, may, at the

Discretion of the appointing authority or the authority to whom, the power of suspension has been delegated under these rules, be placed under suspension until the termination of all proceedings relating to the charge.

(iii)(a) an employee shall be deemed to have been placed or, as the case may be continued to be placed, under suspension by an order of the authority competent to suspend, with the date of his detention, if he is detained in custody, whether detention is on Criminal charge or otherwise, for a period exceeding forty eight hours.

(b) The aforesaid employee shall, after release from the custody, inform in writing to the competent authority about his detention and may also make representation against the deemed suspension. The competent authority shall, after considering the representation in the light of the facts and circumstances of the case as well as the provision contained in rule, pass appropriate order continuing the deemed suspension from the date of release from custody or revoking or modifying it.

(iv) The employee shall be deemed to have been placed, as the case may be, or continued to be placed under suspension by an order of the authority competent to suspend under these rules, with effect from the date of his conviction if in the event of a conviction for an offence he is sentenced to a term of imprisonment exceeding forty eight hours and is not forthwith dismissed or removed consequent to such conviction.

Explanation: The period of forty eight hours referred to in sub rule will be computed from the commencement of the imprisonment after the conviction and for this purpose, internment periods of imprisonment, if any, shall be taken into account.

( iv) Where the penalty of dismissal or removal from service imposed upon an employee is set aside in appeal under these rules or under rules rescinded by these rules and the case is remitted for further enquiry or action or with any other directions;

(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any such direction as aforesaid, be deemed to have continued in force on or from the date of the original order of dismissal or removal;

(b) If he was not under suspension, he shall, if so directed by the appellate authority, be deemed to have been placed under suspension by an order of the appointing authority on or from the date of original order of dismissal or removal;

Provided that nothing in this sub rule shall be construed as affecting the power of disciplinary authority, in a case where a penalty of dismissal or removal from service imposed upon a Government servant is set aside in appeal under these rules on grounds other that the merits of the allegations on the basis of which, the said penalty was imposed and the case is remitted for further enquiry or action or for any other direction, to pass an order of suspension it being further enquiry against him on those allegations, however any such suspension shall not have retrospective effect.

(v) Whether penalty of dismissal or removal from service imposed upon an employee is set aside or declared or rendered void in consequence of or by decision of a Court of law and the appointing authority on a consideration of circumstances of the case, decides of the case, decides to hold a further enquiry against him on the allegations on which the penalty of dismissal or removal was originally imposed, whether the allegations remain in their original form or are clarified their particulars better specified or any part thereof of a minor nature omitted :

(a) If he was under suspension immediately before the penalty was awarded to him, the order of his suspension shall, subject to any direction of the appointing authority, be deemed to have continued in force on or from the date of the original order of dismissal or removal;

(b) If he was under suspension, he shall, if so directed by the appointing authority, be deemed to have been placed under suspension by an order of the competent authority on and from the date of the original order of dismissal or removal.

(vii) Where an employ is suspended or is deemed to have been suspended (whether in connection with any disciplinary proceedings or otherwise) and any other disciplinary proceeding is commenced against him during the continence of that suspension, the authority competent to place him under suspension may, for reasons to be recorded by him in writing direct that the employee shall continue to be under suspension till the termination of all or any of such proceedings.

(viii) Any suspension ordered or deemed to have been ordered by him in force under this rule shall continue to remain in force until it is modified or revoked by the competent authority.

(xi) An employee placed under suspension or deemed to have been placed under suspension under this rule shall be entitled to subsistence allowance in accordance with the provisions of Fundamentals Rule 53 of the Financial Hand Book Volume II, Part II to IV.

(3) Pay and Allowance etc. of the suspension period : After the order is passed in the departmental enquiry on the basis of criminal case, as the case may be, under these rules, the decision as to the pay and allowances of the suspension period of the concerned employee and also whether the said period shall be treated as spent on duty or not, shall be taken by the disciplinary authority after giving a notice to the said employee and calling for his explanation within a specified period under Rule 54 of the Financial Hand Book Volume II, Part II to IV.

(4) Disciplinary Authority: The appointing authority of the member of the service shall be the disciplinary authority, who, subject to the provisions of these rules, may impose any of the penalties specified in rule 23.

Provided that no person shall be dismissed or removed by an authority subordinate to that by which he was actually appointed.

(5) Procedure of imposing major penalties: Before imposing any major penalty on an employee, an enquiry shall be held in the following manner:-

(i) The disciplinary authority may himself enquire into the charges or appoint any authority subordinate to him as enquiry officer to enquire into the charges.

(ii) The face constituting the misconduct on which is proposed to take action shall be reduced in the form of definite charge or charge or charges to be called Charge-sheet.

The Charge-sheet shall be approved by the disciplinary authority:

(iii) The charges framed shall be so precise and clear as to give sufficient indication to the charged employee of the facts and circumstances against him. The proposed documentary evidences and the name of the witnesses proposed to prove the same along with the oral evidences, if any, shall be mentioned in the charge-sheet.

(iv). The Charged employee shall be required to put in Written statement of his defence in person on a specified date which shall not be less than 15 days from the date of issue of charge-sheet and to state whether he desires to cross examine any witness mentioned in the charge-sheet and whether he desired to give or produced evidence in his defence. He shall also be informed that in case he does not appear or file written statement on the specified date, it shall be presumed that he has none to furnish and enquiry officer shall proceed to complete the enquiry ex-parte.

(v). The charge-sheet along with the copy of documentary evidences mentioned therein and list of witnesses and their statements, if any, shall be served on the charged employee personally or by registered post at the address mentioned in the official record. In case the charge-sheet could not be served in the aforesaid manner, the charge-sheet shall be served by publication in a daily newspaper having wide circulation:

Provided that where the documentary evidences is voluminous, instead of furnishing its copy with charge-sheet, the charged employee shall be permitted to inspect the same before the enquiry officer:

(vi) Where the charged employee appears and admits the charges, the enquiry officer shall submit his reports to the disciplinary authority on the basis of such admission.

(vii) Where the charged employee denies the charges, the enquiry officer shall be proceed presence of the charged employee who shall be given opportunity to cross examine such witness, After recording the aforesaid evidences, if enquiry officer shall call and record the oral evidences which the charged employee desires in his written statement to be produced in his defence;

Provided that enquiry officer may for reasons to be recorded in writing refuse to call a witness.

(viii) The enquiry officer may summon any witness to give evidence or require any person to produce documents before him in accordance with the provision of the Uttar Pradesh Departmental Enquiries (Enforcement of Attendance of Witness and Production of Documents) Act, 1976.

(ix) Enquiry Officer may ask any question he pleases, at any time from any witness or from person with a view to discover the truth or to obtain proper proof of facts relevant to charges.

(x) Where the charged employee does not appear on the date fixed in the enquiry or at any stage or proceedings in spite of service of notice upon him or having knowledge of the date, enquiry officer shall proceed with the enquiry ex-parte. In such a case the enquiry officer shall records the statement of the witnesses mentioned in the charge-sheet in absence of the charger employee.

(xi) The disciplinary authority, if it considers necessary to do so, may appoint an officer or a legal practitioner, to be known as ‘Presenting Officer’ to present on its behalf the case in support of the charge.

(xii) The charge employee may take assistance of any officer to present a case on his behalf but shall not engage a legal practitioner for the purpose unless the presenting officer appointed by the disciplinary authority having regard to the circumstances of the case so permits:

Provided that this rule shall not applying in following cases:

(a) Where any major penalty is imposed on a person on the ground of conduct which has led to his conviction on a criminal charge; or

(b) Where the disciplinary authority is satisfied, that for reasons to be recorded in writing, it is not reasonably practicable to hold any enquiry in the manner provided in these rules; or

(c) Where the High Court is satisfied, in the interest of security of the state, that it is not expedient to hold an enquiry in the manner provided in these rules.

(6) Submission of enquiry report- When the enquiry is complete, the enquiry officer shall submits its enquiry report to the disciplinary authority along with all the records of the enquiry. The enquiry report shall contain sufficient record of the facts, the evidence and statement of the findings on each charge and the reasons thereof. The enquiry officer shall not make any recommendation about the penalty.

(7) Action on enquiry report-

(i) The disciplinary authority may, for reasons to be recorded in writing, remit the case for re-enquiry to the same or any other enquiry officer under intimation to the charged employees. The enquiry officer shall thereupon proceed to hold the enquiry from such stage as directed by the disciplinary authority according to the provisions of Rule 23 (5).

(ii) The disciplinary authority shall, if it disagrees with the findings of enquiry officer or any charge, record it’s finding thereon for reason to be recorded.

(iii) In case the charges or not proved, the charged employee shall be exonerated by the disciplinary authority, of the charges and would be informed accordingly.

(iv) If the disciplinary authority, having regard to its finding on all or any of the charges is of the opinion that any penalty specifies in Rule 23 (1) should be imposed on the charged employee, he shall give a copy of the enquiry report and its finding recorded under sub-rule (ii) to the charged employee and require him to submit his representation if he so desires, within reasonable specified time. The disciplinary authority shall, having regard to all the relevant record relating to the enquiry and representation of the charged employee, if any, pass a reasoned order imposing one or more penalties mentioned in rule 23 (1) of these rules and communicate the same to the charged employee.

(8) Procedure for imposing minor penalty-

(i) Where the disciplinary authority is satisfied that good and sufficient reasons exists for adopting such a course, it may, subject to the provisions of sub rule (ii) impose one or more of the minor penalties mentioned in Rule 23 (1).

(ii) The concerned employee shall be informed of the substance of the imputations against him and shall be called upon to submit his explanation within a reasonable time. The disciplinary authority after considering the said explanation, if any, and relevant record, pass such orders as he considers proper and where a penalty is imposed, reasons there 4 [of] shall be given. The order shall be communicated to the concerned employee.

(9) Appeals- (i) A person against whom an order imposing a penalty specified in rule 23 (1) (i) & (v) of Minor Penalties has been passed by the Presiding Officer of subordinate court other than the court of District & Sessions Judge, may file an appeal before the Appointing Authority i. e. the District Judge.

(ii) A person against whom an order;

(a) Imposing a penalty specified in any of the clauses (i) to (v) of [minor] penalties and clauses (i) to (iv) of major penalties of Rule 23 (1), have been passed by the appointing authority, i.e. the District Judge; or

(b) Of enhancement of punishment has been made by the appointing authority i. e. the District Judge in an appeal filed under Clause (i) of this sub-rule, he may file an appeal before the High Court.

(iii) The period during which an appeal may be filed shall be 30 days in case of an appeal filed under Clause (i) of this sub-rule, and 90 days in the case of an appeal filed under 6 [Clause (ii)] of this sub-rule. The period of limitation shall count from the date on which the appellant is informed of the order appealed against. The time taken in obtaining the copy of the order appealed against shall be excluded in computing the period of limitation.

(iv) The appellate authority shall consider- (a) Whether the facts on which the order was passed have been established, (b) Whether the facts established afford sufficient grounds for taking action; and (c) Whether the penalty is excessive, adequate or inadequate and after consideration, the appellate authority shall pass such order as appeared to it just and equitable having regard to all the circumstances of the case. (v) Every memorandum of appeal shall contain all material facts, statements, and arguments relied upon by the appellant, shall not contain disrespectful 1 [deleted] or improper language and shall be complete in itself. (vi) An appeal may be withheld by the District Judge if- (a) It is an appeal in a case in which no appeal lies under these rules; or (b) It does not comply with a requirement of these rules; or (c) It is barred by time and no cause explaining the delay is stated in the memorandum of appeal; or (d) It is repetition of the previous appeal and no new facts or circumstances have been stated which afford good ground for reconsideration of the case: Provided that where any cause for delay in filing the appeal is stated in the memorandum of appeal, the District Judge shall not withhold it on the ground that the cause stated is not reasonable. (vii) Where an appeal is withheld, the appellant shall be informed of the facts of the reasons therefore; Provided that an appeal withheld on account of failure to comply with the requirement of these rules may be resubmitted within one month of the date on which the appellant is informed of withholding the appeal and if resubmitted in a form which complies with requirements with these rules, it shall not be withheld. (viii) No appeal shall lie against withholding of appeal by the District Judge. (ix) A list of appeals withheld under Clause (vi) of the sub-rule with the reasons

for withholding the same shall be forwarded quarterly to the appellate authority. (x) The appellate authority may call for the record of an appeal withheld by a District Judge and may pass such orders thereon as it considers just and proper.

(10). Opportunity before imposing or enhancing penalty- No order under sub rule (9) imposing or enhancing penalties shall be made unless the concerned employee has been given a reasonable opportunity of showing cause against the proposed imposition or enhancement as the case may be.

(Note : The format of charge is being produced herewith for better understanding)

कार्यालय

Where a clerk was suspended by the Officiating District Judge, Fatehpur for the allegations that the clerk had used unparliamentary language against the In-charge District Judge on 01.01.2016 and had misbehaved with him and appeared to be in a state of intoxication, the suspension order passed by the In-charge District Judge was held proper by the Allahabad High Court. Interpreting the provisions of Article 309 of the Constitution of India, Rule 23(2) of the Uttar Pradesh State District Court Service Rules, 2013 and Section 10 of the Bengal, Agra & Assam Civil Courts Act, 1887, it has further been observed that the Additional District Judge in the absence of the District Judge was statutory delegatee as there was no delegation of power by the District Judge and being a statutory delegatee, the In-charge District Judge could not have further delegated his powers. But the suspension of the clerk by the In-charge District Judge pending enquiry was not penal in nature and the suspension order passed by him was proper. See: Siddharth Pandey vs. State of UP, 2016 (3) ALJ 316 (All)

Evidence of witness recorded in preliminary enquiry not to be used in regular departmental enquiry unless cross examined by the delinquent: The purpose behind holding preliminary enquiry is only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. The evidence recorded in preliminary inquiry cannot be used in regular departmental in enquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. See: Nirmala J. Jhala Vs. State of Gujarat & Another, AIR 2013 SC 1513 (paras 23 & 25).

RECONSTRUCTION OF RECORD:

Most of the Departmental inquiry pending in District Court is related to loss of record. It is often seen that the order for Departmental Enquiry (preliminary or final as the case may be) includes order for reconstruction of record too. There may be a separate order for the reconstruction of the record. Rule 216 of G.R. Civil provides that whenever it is discovered that a record or portion of a record or a document on the file of a record is missing, the loss or theft shall be immediately reported in writing to the district Judge in whose district or office the loss or theft has occurred, and he in turn shall report the fact to the High Court and state the steps taken to try and recover the paper or papers missing.

By reading Rule 216 of General Rules Civil, it is clear that firstly the effort should be made to recover the paper or papers missing. If by taking all steps to recover the original record still the success become impossible, the only remedy available is to reconstruct the record.

Now the question may arise how to proceed to reconstruct the particular record or paper. The possibility of reconstruction depends on the availability of copy or copies of the missing record. The officer who has been assigned the duty to reconstruct the record must be having the talent to think of the places where such copy or copies could be found and discovered.

The procedure which is generally followed for reconstruction are as follows:-

1. Preparing a file with index and order sheet bearing a number of the order for reconstruction and detailed description of the case regarding which reconstruction proceeding is being initiated.

2. Issuing notices to the parties and counsels of the parties to appear before the officer concerned and submit all the copies of the record whatever may be in their possession.

3. Persual of registers of the copying department just to ensure as to where else the copy of the record could be found.

4. In Criminal matters concerned police station and office of Circle Officer may be required to submit the copies of record from filling of FIR to submission of report U/S 173 CrPC.

5. Once the copy or copies of record are submitted before the reconstructing officer, it is expected that the same shall be endorsed by the opposite party and the officer concerned.

6. In case any party to whom the notice has been issued appears and say that he does not have any copy of record, his statement must be recorded in that regard.

7. Day to Day order sheet of each and every proceeding for reconstruction should be maintained and signed by the officer concerned.

8. After exhausting all the tools and techniques for reconstruction of the record if it is not possible to reconstruct the missing record a report of the same effect may be submitted before the Hon’ble District Judge.

9. In case the record is reconstructed by the officer concerned the same shall be forwarded to Hon’ble District Judge for approval and further order.

Some times record is reconstructed but many of the time it is not. This is why it depends upon the talent and effort of the officer assigned the duty for the same. Each and every officer who has been assigned the duty to reconstruct the record should keep in mind that his effort must be reflected from the order sheet and proceeding adopted for reconstruction.

RAJNEESH MOHAN VERMA