No. 11012/8/2011-Estt.(A)
Government of India
Ministry of Personnel, PG & Pensions
Department of Personnel & Training
North Block, New Delhi
January 6, 2014
OFFICE MEMORANDUM
Subject : Rule 32 of the Central Civil Services (Classification,
Control and Appeal) Rules, 1965 – Advice of the Union Public Service
Commission (UPSC) to be communicated to the delinquent Government
servant along with the final order of penalty - Amendment – regarding
The undersigned is directed to refer to the provisions of the Rule 32 of
the Central Civil Services (Classification, Control and Appeal) Rules,
1965 and to say that the nature of consultation with the Union Public
Service Commission (UPSC) and the manner of communication of the advice
of the UPSC to the delinquent Government servant have been subject
matter of litigation in some cases in CAT/High Courts etc. The Hon’ble
Supreme Court in the T. V. Patel case, delivered on 19.04.2007, held
that the Disciplinary Authority is not required to furnish a copy of the
advice tendered by the Union Public Service Commission to the Charged
Officer before the final order of penalty is passed. Accordingly, vide
Office Memorandum No. 11012/10/2007- Estt.(A) dated 07.01.2008, the
Ministries/ Departments/ Offices were requested to comply with the
existing provisions of CCS(CCA) Rules, 1965 and bring the contents of
the O.M. to the notice of all concerned for adopting a uniform stand.
2. Now, the Hon’ble Supreme Court in its judgment on 16.03.2011, while
dismissing the Civil Appeal No. 5341 of 2006 in the matter of Union of
India & Ors. vs S. K. Kapoor, has held that it is a settled
principle of natural justice that if any material is to be relied upon
in departmental proceedings, a copy of the same must be supplied in
advance to the charge sheeted employee so that he may have a chance to
rebut the same. The Hon’ble Court also observed that there may be a case
where the report of the Union Public Service Commission is not relied
upon by the disciplinary authority and in that case it is certainly not
necessary to supply a copy of the same to the concerned employee.
However, if it is relied upon, then a copy of the same must be supplied
in advance to the concerned employee, otherwise, there will be violation
of the principles of natural justice.
3. The matter has been examined in consultation with Department of Legal
Affairs and it has been decided that in compliance of the judgement of
the Hon’ble Supreme Court in S.K. Kapoor case, a copy of the advice of
UPSC, in all cases where the Commission is consulted, may be provided to
the Charged Officer, not withstanding the provisions of Rule 17 and
Rule 32 of CCS (CCA) Rules, 1965 before a final decision is taken by the
Disciplinary Authority (DA).
4.Accordingly. it has been decided that in all disciplinary cases where
the Commission is to be consulted, the following procedure may be
adopted:
(i) On receipt of the Inquiry Report, the DA may examine the same and forward it to the Commission with his observations;
(ii) On receipt of the Commission’s report, the DA will examine the same and forward the same to the Charged Officer along with the Inquiry Report and his tentative reasons for disagreement with the Inquiry Report and/or the advice of the UPSC;
(iii) The Charged Officer shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the Inquiry report/advice of UPSC is in his favour or not.
(iv) The Disciplinary Authority shall consider the representation of the Charged Officer and take further action as prescribed in sub-rules 2(A) to (4) of Rule 15 of CCS (CCA) Rules, 1965.
5.A flow chart indicating the present and revised procedure is annexed for ready reference.
6. All Ministries/ Departments/Offices are requested to bring the above
guidelines to the notice of all Disciplinary Authorities under their
control. All cases, where final orders have not been issued may be
processed as per these guidelines.
7. Formal amendment to CCS (CCA) Rules will follow.
8.Hindi version will follow.
sd/-
(J.A.Vaidyanathan)
Director (E)
Source: www.persmin.nic.in