Preliminary enquiry – whether necessary before major penalty charge sheet and can...

Preliminary enquiry – whether necessary before major penalty charge sheet and can a junior officer conduct it?

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Can a major penalty charge sheet be issued with a fact-finding inquiry by persons who are very junior to the officer? Is an inquiry necessary before serving a major penalty charge sheet?

Answer: At the outset, let me point out that the “inquiry” referred to by you before serving a major penalty charge sheet is generally called “preliminary enquiry” and I shall use this expression hereinbelow. Let me first attempt your second question.

Whether or not a preliminary enquiry is necessary before serving a charge sheet for major penalty proceedings will actually depend on the relevant rules applicable to the person concerned. But, generally speaking, rules do not provide for necessarily conducting a preliminary enquiry before serving major penalty charge sheet. In particular, in the case of Central Government servants (since you are working with Central Government), conducting a preliminary enquiry is not necessary before issuing a charge sheet for a major penalty proceedings. This, however, does not mean that a preliminary enquiry cannot be conducted before serving major penalty charge sheet. It only means that it is not “necessary” and is not required under the rules applicable to Central Government officers, but at the same time if the competent authority deems it necessary in the facts of an individual case, it can still be conducted. And, in practice, in many cases of departmental misconduct, a preliminary enquiry is in fact conducted to ascertain the correct facts leading to the misconduct, even though such enquiry is not necessary.

For the purposes of departmental or disciplinary action, Central Government officers are governed by the Central Civil Services (Classification, Control and Appeal) Rules, 1965. The procedure for imposing major penalties is covered in Rules 14 and 15 of these Rules; and, procedure for imposing minor penalties is covered in Rule 16 of these Rules. However, there is no provision in these Rules requiring a preliminary enquiry before a major penalty proceeding is initiated against the Government servant.

Relevant extract of Rule 14 that deals with initiation of a major penalty proceeding is reproduced below:

“(2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof.” [Emphasis supplied]

The words “inquire” or “inquiring” used in this provision refer to the regular “inquiry” that is conducted after serving of the charge sheet for major penalty and they do not here refer to “preliminary enquiry”.

Thus, whenever the disciplinary authority is of the “opinion” that a regular inquiry needs to be conducted for major penalty proceedings, he may take action accordingly as laid down in this Rule. For forming this “opinion”, the disciplinary authority may sometimes get a preliminary enquiry done, but it is not necessary.

What exactly is a preliminary enquiry?

Preliminary enquiry is basically a fact-finding enquiry. Its object is to ascertain the truth or otherwise of the allegations made against an officer, to verify the information or complaint against an officer, and to collect necessary material in support of such allegations, and thereafter to enable the taking of a decision as to whether there is justification to initiate a regular departmental action against the officer for imposing a penalty under the applicable rules.

It is noteworthy that whenever the disciplinary authority receives information or complaint about misconduct of an officer or an employee, he may directly initiate disciplinary action against such officer or employee, if the allegations warrant the taking of such action. Thus, it is permissible to straightaway initiate disciplinary action, if the information or the complaint discloses prima facie material to substantiate the allegations and if there is sufficient evidence available to support or prove these allegations.

On the other hand, if the allegations contained in the information or complaint received are not definite and/or sufficient material is not available to prove or substantiate them, the disciplinary authority may get a preliminary enquiry conducted in the allegations for the purpose of deciding further course of action in the matter. Thus, sometimes, a preliminary enquiry may be needed to ascertain the truth or otherwise of the allegations against an employee and/or to collect sufficient material to support and substantiate the allegations. But, at the cost of repetition, it may be stated that a preliminary enquiry is not a precondition for initiating a departmental action (unless, of course, if the relevant rules applicable to an employee make it necessary, which is generally not the requirement in most of such rules).

It may also be noted that there is no prescribed procedure for conducting preliminary enquiry, and appropriate procedure as per the requirements of the situation can be followed. At the stage of preliminary enquiry, it is not necessary to obtain the explanation of the delinquent officer unless it is considered necessary for any purpose. In fact, generally, the preliminary enquiry may be conducted ex parte behind the back of the delinquent employee and he has no right to be heard at this stage.

In the case of Champaklal Chimanlal Shah v. Union of India, AIR 1964 SC 1854 : (1964) 5 SCR 190, a Constitution bench of the Supreme Court held as under:

“Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused. Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason. Therefore when a preliminary enquiry of this nature is held in the case of a temporary employee or a government servant holding a higher rank temporarily it must not be confused with the regular departmental enquiry (which usually follows such a preliminary enquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant. Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporarily to which he has no right. In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even as such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the government and it is only when the government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the government servant gets the protection of Article 311 and all the rights that that protection implies as already indicated above. There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that Article. …”.

In the case of Nirmala J. Jhala v. State of Gujarat, (2013) 4 SCC 301, the Supreme Court has held that the preliminary enquiry may be useful 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.

Thus, the preliminary enquiry is only a fact-finding enquiry. The fundamental rights or the provisions of Article 311 of the Constitution or principles of natural justice do not apply to a preliminary enquiry. During the preliminary enquiry, evidence, oral and documentary, is to be collected. The material so secured during the preliminary enquiry cannot become the basis for directly taking action of arriving at a finding on the charge or imposition of a penalty. This material only enables the disciplinary authority to decide the further course of action. i.e., whether to drop action or proceed to take action, depending on the material available.

Now, let me come to your first question as to whether a major penalty charge sheet can be issued with a fact finding inquiry by persons who are very junior to the officer. Again, there are no specific rules in this regard. If such a fact-finding enquiry has already been conducted by a junior officer (say, in some other context) and it is thereafter that the disciplinary authority forms an “opinion” that a regular departmental inquiry should be held for major penalty, there may be nothing wrong in that. However, if there are some specific allegations against an officer by way of some information or complaint and the disciplinary authority desires to get them looked into through a preliminary enquiry, it may generally be desirable that such preliminary enquiry should be conducted by an officer of an appropriate rank, preferably an officer of a higher rank. However, even in such cases, there is no hard and fast rule. Many a time, such preliminary enquiry may be conducted by a vigilance officer in the department, who may be lower in rank, or may be through a police officer (or CBI) if the allegations have some element of criminality and such police / CBI officer may also sometimes be lower in rank. In my opinion, what is more relevant to see in such situations is whether some prejudice is caused or whether some miscarriage of justice is caused if such preliminary enquiry is conducted by a lower-rank officer, and also whether no other appropriately senior-rank officer was available to conduct such preliminary enquiry, or whether there was some mala fide reason for getting such preliminary enquiry conducted through a junior officer. If one of the above (or some similar) situations exists, then you may perhaps take an objection if the preliminary enquiry is conducted by a junior officer. In usual practice, a preliminary enquiry is generally conducted by an appropriate level officer depending on the rank of the delinquent officer, barring the situation where it is conducted by a vigilance officer or a police officer.

In this regard, you may also see the contents of the CVC Manual (chapters dealing with “Complaints” and “Preliminary inquiry / investigation”), which is available online on the Central Vigilance Commission (CVC) website.

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