Dinesh Kumar v. State Of Haryana And Others

    

       

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"Subject: Downgrading of A.C.R.s regarding.

I am directed to invite your attention to the instructions contained in Haryana Government Letter. 2/46/882GSI, dated 17th May, 1989 on the subject noted above which inter alia provide that if an employee has been awarded a punishment for an act of omission or

&(& commission during a particular period, his ACR of that year (i.e. the year in which the act of omission or commission took place) may be suitably downgraded. It was also clarified that the extent of downgrading will be decided by the authority passing final orders in promotion cases etc. and will depend on the nature of charges proved against an individual and not merely on the amount of punishment awarded.

Clarifications were issued further vide Government instructions issued vide letter No. 2/46/88 2GSI, dated 15th May, 1990 that no fresh separate show cause notice is required to be issued for down grading of A.C.R. and the orders of downgrading of A.C.R. may be passed simultaneously while issuing orders of punishment. However, in cases where punishment orders have already been issued in which no mention about downgrading of ACR has been made. Then in such cases, for downgrading of A.C.R., another showcause notice may be issued in view of the punishment already awarded.

It was also required that a copy of the orders downgrading of ACR should be placed in the ACR file of the employee concerned and a mention thereof may also be made in the ACR of that particular year. Instructions were issued vide letter No. 2/46/88 2GSI, dated 6th January, 1992 also that A.C.R. if once downgraded, the previous grading ceases to exist and the new grading will be taken into account for all the cases where A.C.R's. are taken into consideration.

2.

It has been observed by the State Government that the aforementioned Government instructions are not being complied with. It has been noticed in a number of cases that the A.C.R's of the employees concerned have not been downgraded as a sequel to the punishment awarded to them. Resultantly, the employee concerned in such cases are being considered for promotion / retention in service etc. on the basis of overall assessment based on the original gradation of A.C.Rs. The Government has viewed

&'& this lapse on the parts of the defaulting departments I have, therefore, been desired to reiterate the aforementioned Government instructions for being adhered to meticulously. Accordingly, it is requested that orders of downgrading of A.C.R.

(s) should be passed simultaneously while issuing orders of punishment and a copy thereof should be placed in the A.C.R. file of the employee concerned besides mentioning about the down grading in the A.C.R, of that particular year. However, in cases. where punishment orders have already been issued in which no mention about the downgrading has been made, another showcause notice may he issued for down grading the A.C.R.(s). The extent of down grading will be decided by the competent authority for final orders in punishment/promotion cases etc.

In future. it may be ensured that fresh assessments of A.C.R.s are taken into account while dealing with the cases of retention in service beyond 50/55 years/prompt cases/cases of efficiency bar and any other cases where A.C.R's are to be taken into consideration. These instructions may kindly be noted for compliance in future and should also be brought to the notice of all concerned for necessary compliance."

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"Dated, Chandigarh, the 20th June, 2003.

Subject: Writing of Confidential ReportsEntry regarding doubtful integrity.

Sir, I am directed to invite your attention to Haryana Government instructions contained in letter No.2/46/882 G.S.I, dated 17th May, 1989 and No 2/19/20012 G.S.I. dated 22.10.2001 on the subject noted above which inter alia provide that if an employee, has been awarded a punishment for an act of omission or commission during a particular period, his ACR of that

&3& year (i.e. the year in which the act of omission or commission took place) may be (not legible) downgraded. A point has been raised by some of the Departments for clarification as to whether entry regarding doubtful integrity can be made simultaneously while downgrading the ACR of any employee as a sequel to the punishment awarded to him.

It is clarified here that entry regarding integrity is normally recorded at the time of writing of the ACR. However, if any employee has been awarded a punishment in the disciplinary case pending against him and he is believed to be corrupt/dishonest on the basis of findings of the disciplinary action/charges proved against him, entry regarding doubtful integrity may be made simultaneously. In his ACR of that year in which the act of omission and commission took place while downgrading his ACR as a sequel to the punishment awarded to him but in conformity with the Government instructions issued vide letter No.61/20/85S(I), dated 12 December, 1985.

It is also clarified that a single show cause notice should be given to the delinquent employee regarding award of the proposed punishment down grading of ACR as a sequel to the punishment as well as for entry regarding doubtful integrity on the basis of charges proved against him. However, in cases. where punishment orders have already been issued in which no mention about the downgrading of ACR and entry regarding doubtful integrity has been made then in such cases, another show cause notice may be issued for the purpose.

2.

These instructions may be brought to the notice of all concerned for their information and compliance."

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&!!& "XXX XXX XXX XXX the then Commissioner of Police, Faridabad has already considered the representation against the adverse remarks recorded in the ACR of HC Dinesh Kumar for the period from 01.04.2015 to 07.02.2016 including misconduct committed by him during the year 201415, therefore, at this stage ACR of the above official cannot be downgraded for the year 201415"

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"Keeping in view of the above, I am of the opinion that the then Commissioner of Police, Faridabad has already considered the representation of HC Dinesh including misconduct committed by him during the year 20142015, therefore, at this stage ACR of HC Dinesh Kumar cannot be downgraded for the year 20142015. " (4 
  
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"10. XXXX XXXX XXXX XXXX "7. Action on the inquiry report:

(1) The Disciplinary Authority, if it is not itself the inquiry Authority, may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for fresh or further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Regulation 6 as far as may be.

&!$&

(2) The Disciplinary Authority shall, if it disagrees with the findings of the inquiry Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

(3) If the Disciplinary Authority, having regard to its findings on all or any of the articles of charge, is of the opinion that any of the penalties specified in Regulation 4 should be imposed on the officer employee it shall, notwithstanding anything contained in regulation 8, make an order imposing such penalty.

(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the officer employee concerned."

XXXX XXXX XXXX

18. Under Regulation 6, the inquiry proceedings can be conducted either by an inquiry officer or by the disciplinary authority itself. When the inquiry is conducted by the inquiry officer his report is not final or conclusive and the disciplinary proceedings do not stand concluded.

The disciplinary proceedings stand concluded with decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the inquiry officer. Where the disciplinary authority itself holds an inquiry an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the inquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair

&!(& and inequitous that where the charged officers succeed before the inquiry officer they are deprived of representing to the disciplinary authority before that authority differs with the inquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation the charged officer must have an opportunity to represent before the disciplinary authority before the final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of inquiry as explained in Karunakar's case (supra).

19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer."

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*   .(1) The following procedure shall be followed in departmental enquiries - (i) The police officer accused of misconduct shall be brought before an officer empowered to punish him, or such superior officer as the Superintendent may direct to conduct the enquiry. That officer shall record and read out to the accused officer a statement summarizing the alleged misconduct in such a way as to give full notice of the circumstances in regard to which evidence is to be recorded. A cop of the statement will also be supplied to the accused officer free of charge.

(ii) If the accused police officer at this stage admits the misconduct alleged against him, the officer conducting the enquiry may proceed forthwith to frame a charge, record the accused officer's plea and any statement he may wish to make in extenuation and to record a final order, if it is within his power to do so, or a finding to be forwarded to an officer empowered to decide the case. When the allegations are such as can form the basis of a criminal charge, the Superintendent shall decide at this stage, whether the accused shall be tried departmentally first and judicially thereafter. (iii) If the accused police officer does not admit the misconduct, the officer conducting the enquiry shall proceed to record such evidence, oral and documentary, in proof of the accusation, as is available and necessary to support the charge.

Whenever possible, witnesses shall be examined direct, and in the presence of the accused, who shall be given opportunity to take notes of their statements and crossexamine them.

&!3& officer, be procured without undue delay and expense or inconvenience, if he considers such statement necessary, and provided that it has been recorded and attested by a police officer superior in rank to the accused officer or by a magistrate, and is signed by the person making it. This statement shall also be read out to the accused officer and he shall be given an opportunity to take notes. The accused shall be bound to answer any questions which the enquiring officer may see fit to put to him with a view to elucidating the facts referred to in statements or documents brought on the record as herein provided.

(iv) When the evidence in support of the allegations has been recorded the enquiring officer shall, (a) if he considers that such allegations are not substantiated, either discharge the accused himself, if he is empowered to punish him, or recommend his discharge to the Superintendent, or other officer, who may be so empowered, or (b) proceed to frame a formal charge or charges in writing, explain them to the accused officer and call upon him to answer them.

(v) The accused officer shall be required to state the defence witnesses whom he wishes to call and may be given time, in no case exceeding forty eight hours, to prepare a list of such witnesses, together with a summary of the facts as to which they will testify. The enquiring officer shall be empowered to refuse to hear any witnesses whose evidence he considers will be irrelevant or unnecessary in regard to the specific charge framed. He shall record the statements of those defence witnesses whom he decides to admit in the presence of the accused, who shall be allowed to address questions to them, the answers to which shall be recorded; provided that the enquiring officer may cause to be

&!#& recorded by any other police officer superior in rank to the accused the statement of any such witness whose presence cannot be secured without undue delay or inconvenience, and may bring such statement on to the record. The accused may file documentary evidence and may for this purpose be allowed access to such files and papers, except such as form part of the record of the confidential office of the Superintendent of Police, as the enquiring officer deems fit. The supply of copies of documents to the accused shall be subject to the ordinary rules regarding copying fees.

(vi) At the conclusion of the defence evidence, or, if the enquiring officer so directs, at any earlier stage following the framing of a charge, the accused shall be required to state his own answer to the charge. He may be permitted to file a written statement and may be given time, not exceeding one week, for its preparation, but shall be bound to make an oral statement in answer to all questions which the enquiring officer may see fit to put to him, arising out of the charge, the recorded evidence, or his own written statement.

(vii) The enquiring officer shall proceed to pass orders of acquittal or punishment, if empowered to do so, or to forward the case with his finding and recommendations to an officer having the necessary powers. Whenever the officer passing the orders of punishment proposes to take into considerations the adverse entries on the previous record of the accused police officer, he shall provide reasonable opportunity to the defaulter to defend himself; and a copy or at least a gist of those entries shall be conveyed to the defaulter and he shall be asked to convey to the defaulter and he shall be asked to give such explanation as he may deem fit. The explanation furnished by the defaulter shall be

&
& taken into account by the officer before passing orders in the case.

(viii) Nothing in the foregoing rule shall debar a Superintendent of Police from making or causing to be made a preliminary investigation into the conduct of a suspected officer. Such an enquiry is not infrequently necessary to ascertain the nature and degree of misconduct which is to be formally enquired into. The suspected police officer may or may not be present at such preliminary enquiry, as ordered by the Superintendent of Police or other gazetted officer initiating the investigation, but shall not crossexamine witnesses. The file of such a preliminary investigation shall form no part of the formal departmental record, but statements therefrom may be brought to the formal record when the witnesses are no longer available in the circumstances detailed in clause (iii) above. All statements recorded during a preliminary investigation should be signed by the person making them and attested by the officer recording them.

(2) (i) Notwithstanding anything contained in subrule (1) a Superintendent of Police or any officer of rank higher than Superintendent, may instituted, or cause to be instituted, ex parte proceedings in any case in which he is satisfied that the defaulter cannot be found or that in spite of notice to attend the defaulter is deliberately evading service or refusing to attend without due cause.

(ii) The procedure in such ex parte proceedings shall, as far as possible, conform to the procedure laid down in subrule (1): Provided that the defaulter shall be deemed - (a) not to have admitted the allegations contained in the summary of misconduct, and (b) to have entered a plea of not guilty of the charge: Provided further that the defaulter, if he subsequently

&
!& appears at any stage during the course of the proceedings shall not be entitled to claim de novo proceedings or to recall for crossexamination any witness whose evidence has already been recorded. He shall, however, be fully informed of the evidence which has been led against him and shall be permitted to take notes thereof. Не shall also be furnished with a copy of the summary of misconduct and of the charge or charges framed.

(3) Notwithstanding anything contained in these rules, where an officer, empowered to dismiss, remove or reduce in rank the police officer accused of misconduct, is satisfied at any stage during an enquiry that for reasons, to be recorded in writing by that officer, it is not reasonably practicable to hold the enquiry after that stage, he will straightaway award the punishment.

+,%   For the purposes of subrule (3), initiation of disciplinary proceedings against the police officer on the grounds of, (i) indulging in spying or smuggling activities;

(ii) disrupting the means of transport or of communication;

(iii) damaging public property;

(iv) creating indiscipline amongst fellow policemen; (v) promoting feelings of enmity or hatred between different classes of citizens of India on grounds of religion, race, caste, community or language; (vi) going on strike or mass casual leave or resorting to mass abstentions;

(vii) spreading disaffection against the Government; and (viii) causing riots and the like;

shall be sufficient reason for concluding that it is not reasonably practicable to hold the enquiry." -+)%  %% (.
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