A conception among the general people is that a government Job in contrast to a private job ensures continuous and uninterrupted pay, perks and other service benefits which are rare to find in the letter category of jobs. Although the statement is true to a considerable extent, the gloomy side of a government job is that if an individual commits or tends to commit an act which is detrimental to the interests of the concerned government department, he is likely to be proceeded against by the state.
Disciplinary proceedings are often characterized as complicated and full of intricacies which are mainly governed by the Government Servants (Discipline & Appeal) Rules, 1985. Historical Background: Before the coming into force the rules and regulations governing the conditions of services, the relationship between the employer and the employee was that of a master and a servant completely dependent on the pleasure of the employer. During British colonial regime in India Government servants could be dismissed or removed from service at the pleasure of the crown without assigning any reason.
“The Government of India Act, 1935” in section-240 provided for two important aspects namely: 1. No Government servant should be dismissed or removed or reduced in rank by an authority subordinate to that by which he has appointed and 2. No such servant could be dismissed or reduced in rank until he had been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. After creation of Pakistan in 1947, the then existing laws were adopted and continued till replacement. During Pakistan regime, conditions of services of the Government servants and other statutory bodies improved a lot.
Till before 1960, the Civil Service (Classification, control and Appeal) Rules 1930 and the Subordinate Services (Discipline and Appeal) Rules 1936 were in force. On the annulment of these rules, the Government Servants (Efficiency and Discipline) Rules 1960 were promulgated formulating rules of procedure of inquiries and imposing penalties defining the nature of offences. After emergence of Bangladesh in 1971, provisions relating to the services of Bangladesh were incorporated in Part-ix, Chapter -1 of the constitution. Article-133 of the constitution provides-
“Subject to the provisions of the constitution parliament may be by law regulate the appointment and conditions of service of persons in the service of the Republic; Provided that it shall be competent for the president to make rules regulating the appointment and the conditions of service of such persons until provision in that behalf is made by or under any law, and rules so made shall have effect subject to the provisions of any such law. ” Accordingly the Rules of 1960 were replaced by the Rules of 1976 which continued in force until the Government Servants (Discipline & Appeal) Rules 1984 were framed.
These rules were soon replaced and Government Servants (Discipline & Appeal) Rules, 1985 have been promulgated which have been substantially amended in 1989. Why this Statute is important for us? This statute is of great importance for judicial officers also. According to evsjv‡`k RywWwkqvj mvwf©m (mvwf©m MVb, mvwf©m c‡` wb‡qvM Ges mvgwqK eiLv? ’KiY, eiLv? ’KiY I AcmviY) wewagvjv, 2007, Provisions of Government Servants (Discipline & Appeal) Rules, 1985 with be applicable mutatis mutandis for suspension, dismissal or removal of any member of the service.
The appointing authority shall consult with supreme court instead of Public Service Commission before imposing such penalties. 1 Salient Features: The Government Servants (Discipline & Appeal) Rules 1985 as amended in 1989 is divided into five parts and contains twenty seven sections. PART – I: GENERAL 01: Commencement, Scope & Application: The Government Servant (Discipline & Appeal) Rules 1985 were published in the official gazette dated on August 21, 1985 and came into effect at once. These rules are applicable for all government servants except: 02: Definitions: Case Law reference:
The word “misconduct” is sufficiently wide expression and covers any conduct which in any way renders a man unfit for his office or is likely to temper or embarrass the administration. In this sense grossly improper or unbecoming conduct in the public life may also become misconduct and may render an officer liable to disciplinary action therefore. 2 PART-II: DISCIPLINE: 3. Grounds for penalty: Where a government servant, in the opinion of the authority, is inefficient or has ceased to be inefficient and is not likely to recover his efficiency, is guilty of misconduct or desertion, is corrupt or may reasonably be considered corrupt, is engaged or is reasonably suspected of being engaged in subversive activities, The authority may impose on him one or more penalties.
4. Penalties: There shall be two kinds of penalties that may be imposed under these rules as depicted below: 5. Inquiry procedure in case of Subversion: When a government servant is to be proceeded against the guilty of subversive activities, the authority: May, by order in writing, require the government servant concerned to proceed on such leave as may be admissible to him and from such date as may be specified in the order.
Shall, by order in writing, inform him of the action proposed to be taken in regard to him and the grounds of that action. Shall give him reasonable opportunity of showing cause against that action before an inquiry committee to be constituted. An inquiry committee is to be constituted with three Gazetted officers The inquiry committee shall hold inquiry into the charge and submit its findings to appointing authority. 6. Inquiry procedure in case calling for minor penalties:
When a government servant is to be proceeded against the guilty of either inefficiency or misconduct or desertion, the authority or in cases where the president is the authority, the Secretary of the Administrative Ministry or Division to which the government servant belongs or such officers as the authority or the secretary may specify in this behalf opine: In cases the allegations, if established, would call for a minor penalty heavier than that of censure, the government servant shall be informed of the substance of the imputations against him and called upon to submit his explanation within a period of seven working days and for personal appearance.
The disciplinary authority shall, after considering the said explanation, if any and if he has desired to be heard in person, after giving him such opportunity, may award any of the minor penalties. Moreover, the disciplinary authority may, if it thinks fit, appoint an officer to inquire into the allegations.
It may take final decision on receipt of the findings of inquiry officer or may order for further inquiry and take final decision on findings of further inquiry . In cases, the allegations, if established, would call for the penalty of censure, the disciplinary authority may hear the accused in person and impose the said penalty after recording the reasons therefore. If the accused doesn’t appear or refuses to appear, the said penalty may be imposed upon him without hearing. 7. Inquiry procedure in case of calling for major penalties: 7. 1 When a government servant is to be proceeded against inefficiency, misconduct, desertion or corruption the authority would call for a major penalty.
The authority shall: – frame a charge and specify therein the penalty proposed to be imposed, and communicate it to the government servant together with a statement of allegations on which it is based. – require the accused to submit within ten working days from the day the charge has been communicated to him a written statement of his defense and to show cause at the same time why the penalty proposed to be imposed on him should not be imposed. 7. 2 Where the accused submits his statement of defense within the specified or extended time, the authority shall consider such statement together with all materials relating to charge.
After such consideration, the authority is of the opinion that: – There is no ground for proceeding against the accused, it shall withdraw the charge. – There is good ground for proceeding against the accused, it shall appoint an inquiry officer. 7. 3 Where the accused does not submit his statement of defense within the specified or extended period of time, the authority shall appoint an inquiry officer or a board of inquiry to inquire into allegations contained in the charge within ten working days. 7. 4 The inquiry officer or the board of inquiry shall start holding of the inquiry within seven working days in accordance with the procedure laid down and submit his findings to the authority. 7.
5 On receipt of the report of the findings of inquiry officer or the board of inquiry, the authority shall consider the report and record its decision on the charge and communicate to the accused. 7. 6 If the authority decides to impose any major penalty, it shall ask the accused to show cause within seven working days why the proposed penalty shall not be imposed on him. 7. 7 Where consultation with the public service commission is necessary for imposition of major penalty, the authority shall forward the proceedings along with the cause shown within seven working days to the commission for advice. 7. 8 After receiving advice from the commission, the authority shall take the final decision on the proceedings. 7.
9 The proceedings of an inquiry shall contain sufficient record of evidence. Case Law Reference: The appointing authority or any authority which is higher than the appointing authority has got power to issue the charge sheet. 3 The object of furnishing a charge –sheet is to give an opportunity to the person who is charged with misconduct to give an explanation to defend him. The rule of natural justice requires that the person charged should know the nature of offense with which he is charged and should be given an opportunity to defend himself and to give a proper explanation. 4 The omission to frame charge is an incurable irregularity amounting to illegality.
When the rules provide for framing up the charge, the non-framing of the charge is an irregularity of grave nature. 5 8. Savings: Nothing in rule 6 or 7 shall apply to a case-: a. Where the accused is dismissed or removed from his service or reduced in rank on the ground of conduct which has led to his conviction of a criminal charge, or b. Where the authority is competent to dismiss or remove the accused from service or to reduce him in rank is satisfied that it is not reasonably practicable to give the accused an opportunity of showing cause. Case Law reference: Conviction means that a person must have been convicted finally. If a person is acquitted by a court of appeal, there is no conviction. 6 9.
Power to order medical examination as to mental or bodily infirmity: 9(a) Where it is proposed to proceed against a government servant on the ground of inefficiency by reason of infirmity of mind or body, the authority may, at any stage of the proceedings, require the government servant to undergo a medical examination by a medical board or a civil surgeon. 9(b) If the government servant refuses to participate such examination, his refusal may be taken into consideration against him as showing that the result of examination would prove unfavorable to him. 10. Procedure to be followed by Inquiry officer: The inquiry officer shall: Case Law Reference: The functions of departmental proceedings are widely different from those of a court of law.
Departmental proceedings and criminal proceedings operate in different fields and have got different objectives. 7 11. Suspension: 11. 1 A Government servant against whom action is proposed to be taken due to accusation of misconduct or desertion or corruption, may be placed under suspension if Suspension is necessary in the opinion of the authority, provided that the authority may instead of placing him under suspension require him to proceed on leave. 11. 2 The Disciplinary authority may hold a further inquiry against a person of whose penalty of dismissal, removal or compulsory retirement from service is set aside or declared or rendered void by decision of court of law or administrative tribunal. Case Law Reference:
Further inquiry means further consideration of evidence. There may not be further evidence forthcoming. For directing further inquiry it is not necessary that there should be further evidences or material. 8 It is not required that a further inquiry is to be made after reinstating the Government Servant whose removal has been set aside by a Court or Tribunal. Once the authority decided to hold a further inquiry the Government Servant shall be deemed to have been placed under suspension from the date of original order of punishment. 9 12. Compensation, pension, gratuity etc of government servants compulsorily retired, removed or dismissed: 12.
1 A government servant compulsorily retired, removed or dismissed shall be entitled to such compensation subject to any order of the president as to the amount of compensation or gratuity to be paid. 12. 2 A government servant who is removed or dismissed from service shall not be entitled to any compensation pension, gratuity or benefits subject to any order of the president made on compassionate ground. Case Law Reference: The officer dismissed or removed does not get pension which he had earned. But an officer who is compulsorily retired does not lose any part of the benefit that he has earned. 10 Compulsory retirement does not amount to dismissal or removal or reduction in rank.
It is, in fact, compulsory retirement in accordance with the terms and conditions of service. 11 13. Re-Instatement: 13. 1 If a government servant proceeding on leave in pursuance of an order passed against an accused of being engaged in subversive activities. is not dismissed, removed or reduced in rank or compulsorily retired, he shall be re-instated in service or restored to his rank or given equivalent rank and the period of such leave shall be treated as duty on full pay. 13. 2 Re-instatement after suspensions shall be governed by the service rules. PART: III – APPEALES 16. Orders made by president not appealable: No appeal shall lie against any order made by the President.
There is distinction between the terms “order made by the President” and “order expressed in the name of President”. An order which is expressed in the name of President as required under Article-55(4) of the constitution may not have been made or passed by the President. The bar on the way of appeal under this rule is applicable to the orders only which are made by the President. 17. Appeals against order: 17. 1 A government servant may appeal against order: Case Law References: Being a departmental Appeal, the principles of an appeal in a trial or a proceeding before a regular court can’t apply to such appeals. Thus the right of personal hearing available in an appeal in judicial proceeding does not apply to departmental appeal.
12 An appeal is a continuation of the proceedings. In fact, The entire proceedings are before the appellate authority and it has the power to review the evidence subject to statutory limitation period prescribed. 13 18. Limitations for Appeals: No Appeals shall be entertained unless it is submitted within three months of the date on which the appellant was informed of the order appealed against, provided that this period may be extended for three months on satisfaction of the Appellate authority. 19. Form & Manner of submission of Appeals: 19. 1 Every person submitting an appeal shall do so separately and his own name.
19. 2 Every Appeal shall be addressed to the authority to whom it lies, and shall contain all materials statement and arguments on which the Appellant relies. 19. 3 Every Appeal shall be submitted through the head office in which the appellant serves. 20. Withholding of Appeals: 20. 1 The authority which made the order appealed against may withhold the appeal If: 20. 2 No appeal shall lie against the withholding of an appeal by a competent authority 20. 3 A list of the appeals withheld by any authority shall be forwarded quarterly by that authority to the appellate authority. 21 Forwarding of Appeals: 21. 1 The authority which made the order appealed against shall forward to the appellate authority every appeal which is not with held under previous rule. 21.
2 The Appellate authority may call for any appeal withheld under previous rule and thereupon such appeal shall be forwarded to that authority along with relevant records. 22. Disposal of Appeal: 22. 1 In case of an appeal against an order imposing any penalty, the appellate authority shall consider: 22. 2 The Appellate authority shall consider all the facts and circumstances of the case and pass such orders as it deems just and equitable. 22. 3 The authority which passed the order appealed against shall give effect to the order passed by the appellate authority within thirty working days from the receipt of such order. PART: IV – REVIEW & REVISION 23. Review: 23.
1 The government servant may apply to the president for review of the order where an order by which a government servant is aggrieved was made by the president. 23. 2 No application for review shall be entertained unless it is submitted within three months of the date on which the applicant was informed of the order by which he is aggrieved, provided that this period may be extended for three more months on satisfaction of the president. 23. 3 Every person submitting the application for review shall do so separately and in his own name. 23. 4 Every application for review shall be submitted to the president through the Head office in which the applicant serves. 23. 5 The president may pass such orders on an application for review as he deems fit. 24. Revision:
The President may, on his own motion or otherwise, after calling for the records of the case, revise any order passed in appeal, or any order which is appealable but against which no appeal has been preferred, under these rules within one year of the on which the order was passed. Case Law Reference: The power of revision is intended to remove clerical errors or to intervene in the interest Justice and the Government can’t enhance punishment in revision. 14 Drawbacks: After discussing the salient features of the Government Servants (Discipline & Appeal) Rules 1985, the following drawbacks are found: 1. The charged Government can’t engage a legal practitioner to present on his behalf against the charges. 2.
Through provision of opportunity of showing cause by the charged Government servant before imposing major penalties by the Disciplinary authority is incorporated in section-7, section-8 (b) gives ample power to the competent authority to impose major penalties without giving such opportunity just on its satisfaction that opportunity can’t reasonably be given. 3. There is no time limit for completing Departmental proceedings. The original statute of 1985 mentioned in sub section -9 of Rule -7 provided specific limits of one hundred and fifty working days to take final decision in case of failure of which the accused was to be automatically discharged. But this rule has been abolished by the amendment of 1989. In the same way time limit provided Rule -6, 7, 11(2), 21 and 22 has been omitted through the amendment of 1989.
4. According to section-11(3), Disciplinary authority can hold a further inquiry on an allegation on which a penalty of dismissal, removal or compulsory retirement from service, is set aside, or declared or rendered void by a court of law or Administrative Tribunal. Thus the order of a court or Tribunal becomes infructuous. 5. Right of personal hearing doesn’t apply to departmental appeal which may cause failure of justice. 6. Rule-20 entitles the Disciplinary authority which made an order appealed against to withhold such appeal and no appeal is preferred against the withholding of an appeal. This provision has put the Disciplinary authority into the position of arbitrator. The Authority can withhold an appeal according to its wish. Recommendations: 1. Opportunity should be given to the charged Government servant to appoint legal practitioner, if necessary. 2.
Section – 8(b) of Statute should be amended and opportunity of personal hearing and showing cause should be given to the accused in every circumstances. 3. A time limit should be fixed for completing disciplinary proceedings. Being proceeded against by the state not only diminishes the future employment prospects of an individual but also taints his or her reputation causing ridicule among the right thinking members of the society. That’s why at least a directory time limit should be incorporated in the statute. But even in the absence of any time limit for disposal, inordinate delay is deprecated in as much as the aggrieved party can’t ventilate his grievance before the proper forum before final disposal of the Disciplinary proceedings. ————.