Removal from services by very junior disciplinary authority

Removal from services by officer appointed to perform the current duties who was very junior Disciplinary Authority and after delay of more than 4 months of Inquiry Report

Sir

I was removed from services the date history is as below:

1. A charge sheet was issued on 31.01.2009.
2. The IO/PO Appointed on 25.02.09.
3. Inquiry proceeding was started on 30.03.2009 and declared Ex-part on 05.03.2010. (Total Period 1 Year).
4. Undated Inquiry report was issued to Charge employee on 19.11.2010 by Disciplinary Auhority ie after 11 and Half Months.
5. Director and Disciplinary Authority was transferred on 31.12.2010.
6. Another officer was given temporary charge for a period of three months from 01.01.2011 or until a regular incumbent to the office is placed whichever is earlier.
7. Another OM informing that Director-in-charge shall exercise all powers of Director as enumerated in bylaws wef 07.01.2011.
8. The charged Employee was removed from services on 02.04.2011 by Director-in-charge ie after issue of Inquiry report ie after 4 and half months).
9. The same officer was appointed as Director on 20.08.2011 i.e. after 4 and Half months from the date of removal of Services when he was Director-in-charge.

Note: In my case CVC and UPSC consultation was not necessary.

As per Government of India’s Decisions

A) DELAYS IN PASSING ORDERS BY THE DISCIPLINARY AUTHORITIES – 

In the OM No. 39/43/70-Estt. (A) dated 08.01.1971, it has been envisaged that it should normally be possible for the disciplinary authority to take a final decision on the enquiry report within a period of three months.  In cases where it is felt that it is not possible to adhere to this time limit, a report may be submitted to the next higher authority indicating the additional period required and reasons for the same.  It should also be ensured that cases involving consultation with the CVC and UPSC are disposed of as quickly as possible.

2.         Though no specific time limit has been prescribed in the above OM in respect of cases where consultation with CVC and UPSC is required, it is imperative that the time limit of three months prescribed for other cases should be adhered to in such cases after receipt of the advice of the UPSC.

[Deptt. Of Personnel & Training OM No. 11012/21/98-Estt.(A) dated 11th November, 1998]

Observation:

Removal order was issued on 02.04.2011 after more than 4 months as Inquiry report was issued to Charge employee on 19.11.2010 by Disciplinary Auhority.

B) FINAL ORDERS TO BE PASSED BY THE ‘HIGHER DISCIPLINARY AUTHORITY’ WHO INSTITUTED THE ENQUIRY:- 

When proceedings are instituted by a “higher disciplinary authority”, final orders should also be passed by such “higher disciplinary authority” and the case should not be remitted to a lower disciplinary authority, on the ground that on merits of the case it is sufficient to impose a minor penalty and such minor penalty could be imposed by a lower disciplinary authority.  In such cases the appeal against the punishment order of the “higher disciplinary authority” shall lie to the authority prescribed under the CCS (CCA) Rules, as the appellate authority in respect of such order. [MHA OM No. 6/26/60-Ests.(A) dated the 8th June, 1962].

Observation:

Final order was issued by Director-in-charge who was very junior to the Appointing Authority as well as Authority issued the charge sheet.

C) OFFICERS PERFORMING CURRENT DUTIES OF A POST CANNOT EXERCISE STATUTORY POWERS UNDER THE RULES:- 

An officer appointed to perform the current duties of an appointment can exercise administrative or financial power vested in the full-fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax Act) or Rules, Regulations and Bye-Laws made under various Articles of the Constitution (e.g., Fundamental Rules, Classification, Control and Appeal Rules, Civil Service Regulations, Delegation of Financial Powers Rules etc.)

[MHA OM No. 7/14/61-Ests. (A) dated 24th January, 1963].

Observation:

Director-in-charge was appointed to perform the current duties of an appointment can exercise Administrative or Financial power vested in the full fledged incumbent of the post but he cannot exercise statutory powers.

Review petition under section 29A is under consideration by President of the Council as above facts were come to my knowledge under Right to Information Act before two months.

Please advise whether my observations are correct and whats the Rule position. 

Thanks in advance