Can a department of central govt. run enqiury on serious criminal charge
Bhushan
(Querist) 04 March 2012
This query is : Resolved
sir, i am a officer of central govt. my ex girlfriend who is in police filed a case of rape , abortion, bgamy, threathing which is pending before the court, at the same time department initiated enquiry by suspending me by complaint on the same girl, can i stayed the D E?
Guest
(Expert) 04 March 2012
Dear Bhushan,
You have not mentioned who reported the matter to your department, whether you remained in the custody of police for more than 48 hours or less, whether any charge sheet has been served and a regular inquiry officer has been appointed to inquire in to the case or not?
Bhushan
(Querist) 04 March 2012
no sir i was not in any custody, i got anticipatory bail actually this case is framed...the same girl who filed a FIR against me..complained my department as same as FIR. no sir no chargesheet has been served, no inquiry officer is appointed
V R SHROFF
(Expert) 04 March 2012
You have no alternative, but defend yourself.
You file a case of extortion against her in home dept, alleging he demanded ransom, and s I was unable to pay , continued blackmailing me, and ultimately filed cr case + compl to my dept too.
r u married? she knows abt it? knowingly she had physical relation with you? which city??
She acted ultra-vires by misusing her post, and is outside her duty.
You make any wild allegations.
Name cand fame is already tarnished, let her get tarnished too
Guest
(Expert) 04 March 2012
Is the girl working in your office, or some outsider?
You can send an appeal against the suspension justifying your case to the prescribed appellate authority in your own department.
When the competent authority has suspended you, he has to issue charge sheet also to enable you to defend your case. Without proving the charge no punishment can be awarded to you. Suspension is not treated as a penalty.
Kirti Kar Tripathi
(Expert) 04 March 2012
Though Criminal Trial and departmental inquiry both are separate and can run simultaneously. The charges which are labelled against you are amounts to moral turpitude. see your services conditions whether charges of moral turpitude can be framed before attaining finality of the judgment of criminal court or not. As think unless charges are not connected with employment, the charges of moral turpitude can not be framed before the judgment of criminal trial.
Raj Kumar Makkad
(Expert) 04 March 2012
You should wait for the departmental charge-sheet which generally follow the suspension order. The opinion of Kar is relevant in your case.
Shonee Kapoor
(Expert) 04 March 2012
Unless there is a conviction, the department can not suspend you now, as you were not remanded to custody.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
Sudhir Kumar, Advocate
(Expert) 04 March 2012
Partially disagree with Ld Mr Shonee Kapoor, Ld Mr Dhingra and LdMr Shroff Right of the department for suspension is not dependent on conviction or 48 hour custody. On 48 hours custody the suspension is deemed by deptt can issue suspension even without that. On conviction there is penalty order under Rule 19 of CCS(CC&A) Rules read with Provision to Art311 of the constitution. The girl is in police as you said she is outsider. it matters little who reported to the department. The department can have separate and simultaneous departmental proceedings. As suggested by Mr Makkar you have to wait for chargehseet or seen if suspension is just dropped after review after 90 days.
As suggested by Mr Dhingra the suspension is appealable and you need not wait for any chargesheet.
Even if departmental inquiry is held you have right to call any serving /retired Govt servant of your choice of any deptt who is willing to defend you and argue on your behalf. Bringing lawyer in departmental inquiry is exception not the rule.
As far as your query on stay on the DE is concerned, the same can be considered only whether you receive chargehseet from both placed Police as well as from Deptt and if the evidence is similar and line of denfece is also similar. Still the stay cannot be sure to be granted.
Bhushan
(Querist) 05 March 2012
Sir as i heard that if charges are very grave nature and matter of law is there , then depart enq. must be stayed as IPC 376, 377, 495,494,419,315,316,506,507 are framed, also while conducting prelimanery enq. a junior officer met that girl and act in the interest of that girl
Bhushan
(Querist) 05 March 2012
the girl is from other state police department and i m from central Govt.. no medical evidences, no circumstantial evidences, only one eye witness who is friend of her also it was a case of 5 years ago
Guest
(Expert) 05 March 2012
Case seems to be of intentional harassment being caused by the lady being in police department. Let her prove the charge. Burden of proof lies on the prosecution/ complanant.
You can make an appeal to the appellate authority against the suspension order, as the charge has not yet been proved against you and you have not been found guilty of sexual harassment of any woman employee of your own department.
Guest
(Expert) 05 March 2012
Dear Sudhir,
Thanks for demonstrating your overflowing talent.
You have every right to differ with my opinion, but on a specific point where I am actually wrong.
BUT, WITH REFERENCE TO THE DIFFERENCE SHOWN IN YOUR REPLY, THE PERTINENT POINT ARISES, DO YOU CONSIDER MY QUERIES AIMED AT THE AUTHOR OF THE QUESTION TO EXTRACT SOME BASIC INFORMATION, AS MY OPINION OR AS A SOLUTION TO THE PROBLEM, OR DID I SUGGEST ANYWHERE THAT HE MUST HAVE BEEN IN POLICE CUSTODY FOR MORE THAN 48 HOURS TO BE SUSPENDED?
Rather, on the other hand, I differ with you on your statement, "Right of the department for suspension is not dependent on conviction or 48 hour custody."
Just think, if some outsider complains against you, would your Disciplinary Authority be right in suspending you unless your guilt is proved?
The hard fact is that the department of Government does not have any arbitrary right to suspend anyone merely on the complaint of any tom dick and harry, that too an outsider, without any offence having been proved and also where there is no scope of alteration, manipulation or destruction of any material evidence against the official on record of the department.
I hope, if you have any difference with my above statement, you would like to enlighten me about any rule or even any case law where the departmental authorities have the unquestionable arbitrary right to suspend any official. That would definitely enhance my knowledge.
venkatesh Rao
(Expert) 05 March 2012
Learned experts,
1. Order of suspension is NOT a quasi judicial order.(AIR1962 SC630)
2. Order of suspension does not attract Art.311 of the constitution.
3. Suspension is an administrative action;hence speaking order is not necessary.
(1985 Lab IC (karnataka) 630
4. suspension is justified where a criminal case on serious charges pending.(AIRSCW648)
Govt. is at liberty and duty bound to in some cases, more so in cases on hand, can suspend an employee.
Kirti Kar Tripathi
(Expert) 06 March 2012
The simple question involve in this query whether both criminal trial and departmental inquiry can run on the same charge mentioned in the query. The answer is yes. Because, criminal trial relates with crime against society where as departmental proceeding relates with misconduct in employment. The misconduct mentioned under the head moral turpitude, if proved renders a person liable to ousted from the employment as he has become unfit for the employment, it is an exception. But he it is outside the employment, there is no nexus between act of delinquent employee and his employment. Thus in normal circumstances, the allegation can not be labelled against him on moral turpitude cases unless the delinquent employee is convicted in the court and rendered him unfit for the employment.
Bhushan
(Querist) 06 March 2012
i thank all you sirs for guiding me on this issue...but my question is on which grounds i can ask for stay..i think on the charges as it is matter of law and its complicities.also can i open my defence first before department than court....???
prabhakar singh
(Expert) 08 March 2012
your defence would be simple denial,be it trial in court or department with a reason of why falsely implicated?
Sudhir Kumar, Advocate
(Expert) 09 March 2012
While my sympathy and sincererity towards the querist cannot be less than Mr Dhingra. I feel equally happy that all of us pool together the brains and
I am very happy for Mr Dhingra to provide me the opportunity I reproduce Part of Rule 10 (1) of CCS(CC&A) Rules :-
(1) 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-
(a) where a disciplinary proceeding 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:
[http://persmin.nic.in/DOPT/EmployeesCorner/Acts_Rules/ccs%28cca%29/ccstotal1.htm ]
SO HERE THERE IS NO QUESTION OF 48 HOURS OF CUSTODY.
THERE IS NO NEED TO PROVE ANY ALLEGATION BEFORE SUSPENSION
You are right suspension cannot be arbitrary. For agreeing with you I derive strength from following GOID No 4 below Rule 10 of CCS(CC&A) Rules :-
“(4) Circumstances under which a Government servant may be placed under suspension �
Recommendation No. 61, contained in paragraph 8.5 of the report of the Committee on Prevention of Corruption, has been carefully considered in the light of the comments received from the Ministries. It has been decided that public interest should be guiding factor in deciding to place a Government servant under suspension, and the disciplinary authority, should have discretion to decide this taking all factors into account. However, the following circumstances are indicated in which a Disciplinary Authority may consider it appropriate to place a Government servant under suspension. 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 (1) and (2)] 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.
NOTE :
(a) 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.
(b) Certain types of misdemeanor where suspension may be desirable in the four circumstances mentioned are 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.
[MHA OM No. 43/56/64-AVD dated the 22nd October, 1964].”
The queriest has not stated that the woman is totally stranger to him and he may be justified in not sharing the exact relation with her.
In this case it is not a tom dick and harry but an Indian woman who had also filed a criminal case (rightly or wrongly) There is no part of Govt policy to ignore a complaint simply because it is filed by outsider. That means Govt servant is never free to commit CAW outside his office.
I re-produce Rule 3B of CCS(Conduct) Rules :
Every Government servant shall, at all times-
(i) act in accordance with the Government's policies regarding age of marriage, Preservation of environment, protection of wildlife and cultural heritage;
(ii) observe the Government's policies regarding prevention of crime against women.
So the dealing officers of the complaint are bound not to ignore the complaint of woman simply because she is employed in some other department. So (based on what the queries stated) the suspension may be unreasonable or arbitrary but not illegal altogather.
You have very rightly hinted that suspension cannot be arbitrary. For agreeing with you I derive strength from Rule 23 (i) of the CCS(CC&A) Rules :-
23. Orders against which appeal lies
Subject to the provisions of rule 22, a Government servant may prefer an appeal against all or any of the following orders, namely:-
(i) an order of suspension made or deemed to have been made under rule 10;
Hence you have absolutely rightly pointed out that he can appeal against suspension. Even if he does not appeal still there is an obligation on the Govt under Rule 10(7) of the CCS(CC&A) Rules as under :-
(7) An order of suspension made or deemed to have been made under sub-rules (1) or (2) of this rule shall not be valid after a period of ninety days unless it is extended after review, for a further period before the expiry of ninety days :
Provided that no such review of suspension shall be necessary in the case of deemed suspension under sub-rule (2), if the Government servant continues to be under suspension at the time of completion of ninety days of suspension and the ninety days period in such case will count from the date the Government servant detained in custody is released from detention or the date on which the fact of his release from detention is intimated to his appointing authority, whichever is later.
HIS APPEREHENSION WHICH IS ALSO SHARED BY YOU IS THAT THE COMPLAINT BEING IN POLICE MAY HAVE INFLUENCED THE DEPARTMENT MAY ALSO BE JUSTIFIED.
But law does not debar a policewoman to agitate in departmental proceedings and criminal proceedings any CAW committed against her. If he really holds any evidence of her being able to use official influence then should not hesitate to submit complaint against her to the DGP but such complaint on hearsay can compound his trouble.
I am of the view that the queriest should defend both the criminal and departmental action as he is attacked on both fronts. In case he feels his defence in criminal case may be compromised in deptt proceedings (as it is speedy than criminal trial) he can consider seeking stay against the same.
Now he is understanding the problem and has now asked the exact ground for seeking stay. Such query can be replied only after seeing all the papers for which Mr Dhingra, Mr Kar and Mr Makkar has already highlighted the importance of chargesheet. Till the chargesheete is issued he can only appeal (even litigate) against suspension order.
