Suspension of Government Servant before expiry of 90 days - Review of Suspension

Suspension of Government Servant before expiry of 90 days - Review of Suspension

Controller General of Defence Accounts

Ulan Batar Road, Palam, Delhi Cantt 110010

No.AN/XIII/13006/Vol-XXII

Dated 22.09.2015

To
The PCsDA/CsDA
PCA(Fys)/CFAs(Fys)
PIFAs/IFAs
(Through Website)

Subject : Suspension of Government Servant-Review of Suspension

As per provisions contained in Rule 10 of CCS(CC&A) Rules, 1965 suspension of a Government servant is valid only for 90 days unless it is extended after review before expiry of 90 days. It has been observed by the MoD D(Vigilance) that the suspension order has been struck down on the ground that the same had not been reviewed by the reviewing authority before expiry of 90 days.

2. Therefore the Ministry has directed that the provisions of Rule 10(6) and 10(7) of CCS (CC&A) Rules, 1965 which provide for review, modify and extension of the suspension should strictly be observed in all such cases to avoid quashing of orders on technical grounds rather than on merits (copy attached)

3. In this context attention is also invited to DOPT OM No. 11012/4/2003-Estt. (A) dated 07.01.2014 containing review instruction and HQrs letter no. AN/XIII/13007/2A/Vol-IX dated 09.07.2014 regarding constitution of review committee.

4. It is requested that all such cases of suspension/review of suspension of Govt. servant may be reviewed on monthly basis in the light of above provisions/guidelines.

Please acknowledge receipt.

(V.K. Vijay)

C V O / Jt. CGDA

---

Most Immediate

Ministry of Defence

D(vigilance)

*******

Subject : Suspension of Government Servants – Review of Suspension order.

Attention is invited to Rule 10 of CCS(CCA) Rules, 1965 relating to Suspension of Govt. Servant by the competent authority on account of disciplinary proceedings pending or contemplated against him, or his engagement in activities prejudicial to the interest of the security of the State, or case pending against him in any criminal offence, or his detention or conviction in a criminal case. The suspension is valid only for 90 days unless it is extended after review for a further period before the expiry of 90 days. Of late the suspension order has been struck down on the ground that the same had not been reviewed by the competent reviewing authority before the expiry of 90 days while it remained in force.

2. It is hereby urged that the provisions of Rule 10(6) and Rule 10(7) of CCS(CCA) Rules, 1965 which provide for review, modify and extension of the suspension of the accused should be strictly observed in all such cases to avoid quashing of orders on technical grounds rather than on merits. Such cases may be reviewed on monthly basis by administrative sections of various civilians cadres of Ministry of Defence.

(Atul Kumar Singh)

Director (Vig)

Source: CGDA
[http://cgda.nic.in/adm/circular/suspension24092015.pdf]

Suspension of Government Servant before expiry of 90 days -Review of Suspension - See more at: http://www.centralgovernmentnews.com/#sthash.qLieBvc9.dpuf

Railway Board Order: Rule 5 of Railway Servants (Discipline and appeal) Rules, 1968 – Instructions regarding timely review of suspension

Railway Board Order: Rule 5 of Railway Servants (Discipline and appeal) Rules, 1968 – Instructions regarding timely review of suspension

RBE No. 12/2015

GOVERNMENT OF INDIA

MINISTRY OF RAILWAYS

(RAILWAY BOARD)

No. E(D&A) 2014 RG6-35

New Delhi, 18.02.2015

The General Manager(P)
All Indian Railways and
Production Units etc.
(As per standard list).

Sub: Rule 5 of Railway Servants (Discipline and appeal) Rules, 1968 – Instructions regarding timely review of suspension

Rule 5 of the Railway Servants (Discipline and appeal) Rules, 1968 deals with the provisions of suspension. As per the rule, a Railway servant may be placed under suspension in the following circumstances:

(a) where a disciplinary proceeding against him is contemplated or is pending; or

(b) where, in the opinion of the authority competent to place a Railway servant under suspension, he has engaged himself in activities prejudicial to the interest of the security of the state; or

(c) where a case against him in respect of any criminal offence, is under investigation, inquiry or trial.

2. A Disciplinary Authority may also consider it appropriate to place a Railway servant under suspension in the following circumstances. These are only intended for guidance and should not be taken as mandatory:-

(i) Cases where continuance in office of the Railway servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);

(ii) where the continuance in office of the Railway servant is likely to seriously subvert discipline in the office in which the Railway servant is working;

(iii) where the continuance in office of the Railway servant will be against the wider public interest [other than those covered by (i) and (ii)] such as there is public scandal and it is necessary to place the Railway servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;

(iv) where allegations have been made against the Railway servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or his being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.

3. In the first three circumstances the Disciplinary Authority may exercise his discretion to place a Railway servant under suspension even when the case is under investigation and before a prima facie case has been established. Suspension may be desirable in the circumstances indicated below:-

(i) any offence or conduct involving moral turpitude;

(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;

(iii) serious negligence and dereliction of duty resulting in considerable loss to Railways;

(iv) desertion of duty;

(v) refusal or deliberate failure to carry out written orders of superior officers. In respect of the types of misdemeanor specified in sub-clauses (iii) to (v) herein above, discretion has to be exercised with care.

4. Rules 5(6) and 5(7) of RS(D&A) Rules, 1968, deal with the review of suspension cases. The provision of review within ninety days is applicable to all types of suspensions. However, in cases of continued detention, the review becomes a mere formality with no consequences as a Railway servant in such a situation has to be continued to be kept under deemed suspension. A review of suspension is not necessary in such cases during this period. Therefore, in all such cases the first review of suspension becomes due on completion of ninety days counting from the date, the Railway servant was released from detention, unless suspension has already been revoked. Subsequent reviews shall become due before completion of currently continuing period of suspension. During each such review, suspension can be extended for a period not exceeding 180 days at a time.

5. It has come to notice that in cases of prolonged suspension period, the courts have pointed out that the suspension cannot be continued for long and that inspite of Railway Board’s instructions, the Disciplinary Authorities are not finalizing the disciplinary proceedings within stipulated time. Also, in such cases the Railway is unnecessarily paying subsistence allowance without extracting any work and if, on the culmination of the disciplinary proceedings, the charged officer is exonerated from the charges, the Railway has to unnecessarily pay the full salary and treat the period of suspension as on duty etc. It is therefore, desirable that timely review of suspension is conducted in a just and proper manner and that the disciplinary proceedings are finalized expeditiously.

6. The zonal Railways etc. may bring the existing instructions on timely review of suspension and expeditious completion of disciplinary proceedings to the notice of all concerned.

7. Please acknowledge receipt.

(S. Modi)

Dy. Director Estt. (D&A)

Railway Board

Source: For Hindi Click here

Supreme Court sets bar on suspension of government employees

Supreme Court sets bar on suspension of government employees

A government employee can't be kept suspended for more than three months if not formally informed about the charges, the Supreme Court said Monday.

Based on the principle of human dignity and the right to speedy trial, the landmark verdict is expected to affect lakhs of government employees across India, many of whom are under suspension for years pending departmental proceedings.

"Suspension, specially preceding the formulation of charges, is essentially transitory or temporary in nature, and must perforce be of short duration," a bench headed by justice Vikramjit Sen said.

If the charge sheet or memorandum of charges was served within three month, the suspension could be extended, it ruled.

"If it (suspension) is for an indeterminate period or if its renewal is not based on sound reasoning…, this would render it punitive in nature," the court said.

It agreed with petitioner's senior counsel Nidhesh Gupta that a suspension order can't continue for an unreasonably long period.

Protracted periods of suspension had become the norm and not the exception that they ought to be, the court said. It drew a parallel with criminal investigation wherein a person accused of heinous crime is released from jail after the expiry of 90 days if police fail to file the charge sheet.

The suspended persons suffers even before being charged and "his torment is his knowledge that if and when charged, it will inexorably take an inordinate time for the inquisition or inquiry to come to its culmination". "Much too often this has now become an accompaniment to retirement," the court said, setting aside a direction of the central vigilance commission that required departmental proceedings to be kept in abeyance pending a criminal investigation.

The government, however, was free to transfer the officer concerned to any department in any of its offices to ensure the employee did not misuse contacts for obstructing the probe, the court said.

The order came on a petition filed by defence estate officer Ajay Kumar Choudhary, who was suspended in September 2011 for allegedly issuing wrong no-objection certificates for the use of a four-acre land parcel in Kashmir. After failing to get relief from the Delhi high court, Choudhary had moved the top court in 2013.

Since a charge sheet had already been served on Choudhary, these directions would not apply to his case, the court said.

Read at Hindustan Times

Circumstances for Suspension and Timely review of Suspension: Instructions under CCS(CCA) Rules, 1965

Circumstances for Suspension and Timely review of Suspension: Instructions under CCS(CCA) Rules, 1965

 Central Civil Service (Classification, Control and Appeal) Rules, 1965 — Circumstances under a Government Servant may be placed under suspension and timely review of suspension: DoPT Order

F. No. 11012/17/2013-Estt.A-III
Government of India
Ministry of Personnel, Public Grievances & Pensions
Department of Personnel and Training
Establishment Division

North Block, New Delhi — 110001
Dated November 18th 2014

OFFICE MEMORANDUM

Subject: Central Civil Service (Classification, Control and Appeal) Rules, 1965 — Instruction regarding timely review of suspension.

Rule 10 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, deals with the provisions of suspension. As per the rule, a Government servant may be placed under suspension, in the following circumstances:

(a) where a disciplinary proceeding against him is contemplated or is pending; or
(b) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or
(c) where a case against him in respect of any criminal offence is under investigation, inquiry or trial:

2. A Disciplinary Authority may also consider it appropriate to place a Government servant under suspension in the following circumstances. These are only intended for guidance and should not be taken as mandatory:-

(i) Cases where continuance in office of the Government servant will prejudice the investigation, trial or any inquiry (e.g. apprehended tampering with witnesses or documents);
(ii) where the continuance in office of the Government servant is likely to seriously subvert discipline in the office in which the public servant is working;
(iii) where the continuance in office of the Government servant will be against the wider public interest [other than those covered by (i) and (ii)] such as there is public scandal and it is necessary to place the Government servant under suspension to demonstrate the policy of the Government to deal strictly with officers involved in such scandals, particularly corruption;
(iv) where allegations have been made against the Government servant and preliminary inquiry has revealed that a prima facie case is made out which would justify his prosecution or is being proceeded against in departmental proceedings, and where the proceedings are likely to end in his conviction and/or dismissal, removal or compulsory retirement from service.

3. In the first three circumstances the Disciplinary Authority may exercise his discretion to place a Government servant under suspension even when the case is under investigation and before a prima facie case has been established. Suspension may be desirable in the circumstances indicated below:-

(i) any offence or conduct involving moral turpitude;
(ii) corruption, embezzlement or misappropriation of Government money, possession of disproportionate assets, misuse of official powers for personal gain;
(iii) serious negligence and dereliction of duty resulting in considerable loss to Government
(iv) desertion of duty;
(v) refusal or deliberate failure to carry out written orders of superior officers In respect of the types of misdemeanor specified in sub-clauses (iii) and
(v) discretion has to be exercised with care.

3. Rules 10(6) and 10(7) of the CCS (CCA) Rules, 1965, deal with review of the suspension cases. The provision for review within ninety day is applicable to all types of suspensions. However, in cases of continued detention, the review becomes a mere formality with no consequences as a Government servant in such a situation has to continue to be under deemed suspension. A review of suspension is not necessary in such cases.

4. It has been brought to the notice of this Department that in cases of prolonged suspension period, the courts have pointed out that the suspension cannot be continued for long and that inspite of the instructions of DoP&T, the Disciplinary Authorities are not finalizing the disciplinary proceedings within the stipulated time. Also, in such cases the Government is unnecessarily paying subsistence allowance without extracting any work and if, on the culmination of the disciplinary proceedings, the charged officer is exonerated from the charges, the Government has to unnecessarily pay the full salary and treat the period of suspension as on duty etc.. It is, therefore, desirable that timely review of suspension is conducted in a just and proper manner and that the disciplinary proceedings are finalized expeditiously.

5. All Ministries/ Departments are requested to bring the existing instructions on timely review of suspension and expeditious completion of disciplinary proceedings to the notice all concerned under their control.

(J.A.Vaidyanathan)
Director(Establishment)

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/11012_17_2013-Estt.A-III-18112014.pdf]

Minister explained in Parliament to a question regarding suspension under Rule 10 of CCS (CCA) Rules, 1965

Minister explained in Parliament to a question regarding suspension under Rule 10 of CCS (CCA) Rules, 1965
Charge Sheeted to Government servant...

While answering to a question in Parliament the Minister of DOPT Shri V.Narayanasamy said that as per Rule 10 of CCS (CCA) Rules, 1965 the appointing authority or any authority to which it is subordinate or the disciplinary authority or any other authority empowered in that behalf by the President, by general or special order, may place a Government servant under suspension-

where a disciplinary proceedings against him is contemplated or is pending; or (aa) where, in the opinion of the authority aforesaid, he has engaged himself in activities prejudicial to the interest of the security of the State; or (b) where a case against him in respect of any criminal offence is under investigation, inquiry or trial.

Article 311(1) of the Constitution provides that no person who is a member of the civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. Again as per Article 311(2) no such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges.

The Ministers/MPs and other legislators are governed by separate and distinct provisions of the Constitution and are not governed by the rules applicable to Civil Servants.

Source: http://90paisa.blogspot.in/2013/12/minister-explained-in-parliament-to.html

Leave Encashment on Suspension/Dismissal/Removal - Dopt Clarification Orders

Leave Encashment on Suspension/Dismissal/Removal

Sl.No. /  Frequently asked Questions / Answer

1. Whether leave encashment can be sanctioned to a Govt. servant on his superannuation while under suspension?
Leave encashment may be allowed in such cases. However, Rule 39(3) of CCS (Leave) Rules, 1972 allows withholding of leave encashment in the case of a Govt. servant who retires from service on attaining the age of superannuation while under suspension or while disciplinary or criminal proceedings are pending against him, if in view of the authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings he/she will become eligible to the amount so withheld after adjustment of Government dues, if any.

2. Whether leave encashment can be sanctioned to a Govt. servant on his dismissal/removal, from service?
A government servant, who is dismissed/removed from service, ceases to have any claim to leave at his credit from the date of such dismissal, as per rule 9(1). Hence he is not entitled to any leave encashment.

Source: www.persmin.nic.in
[http://ccis.nic.in/WriteReadData/CircularPortal/D2/D02est/Leave-25032013.pdf]

Definition of term Stiff / Severe Minor Penalty

GOVERNMENT OF INDIA / BHARAT SARKAR
MINISTRY OF RAILWAYS / RAIL MANTRALAYA
(RAILWAY BOARD)

No. 2010/VI/DAR/1/1

New Delhi, dated 7.12.2012

The General Managers,
All Zonal Railways, PUs, CORE &
METRO, NF (Construction)

The Directors
IRIEEN, IRIMEE, IRICEN,
IRISET, IRITM

The DGs/RDSO & RSC

The CAO/DLMW, COFMOW

The Managing Directors/ All PSUs

Sub: Definition of term Stiff / Severe Minor Penalty
Ref : Board’s letter of even number dated 26.4.10.

In pursuance of Office Order No.99/DSP/1 dated 3.3.2010 received from the Central Vigilance Commission withdrawing the term "stiff / severe minor/major penalty", Board’s letter Nos. 99/VI/DAR/1/10 dated 23.8.99 (interpreting the term stiff/severe major penalty), 99/VI/Meet/4/1 dated 27.8.1999 (clarifying the term stiff/severe minor penalty) and RBV Circular No.15/2004 (defining the term stiff/severe minor penalty) issued under letter No.2003/VI/DAR/1/5 dated 13.7.2004, were treated as withdrawn / cancelled vide Board’s letter of even number dated 26.4.2010.

 

Inspite of the above, it has been given to understand that in some Zonal Railways, the phrase "stiff major penalty" is still being used for imposing one of the three major penalties i.e., Dismissal, Removal and Compulsory Retirement. It is once again reiterated that the term "stiff minor/major should not be used as these are no longer in use.

sd/-
(Vikas Purwar)
Director Vigilance (M)
Railway Board

Source : NFIR