Vigilance case- dealing, De-novo inquiry

In all vigilance cases, where major penalty was advised by vigilance and was followed by issue of major penalty charge sheet, if after inquiry, DA wishes to impose a minor penalty or exonerate the CO, DA should record his provisional speaking orders mentioning the reason for deviating from vigilance advice. He should then make a reference to vigilance. If vigilance, on reconsideration, still advises action which DA does not agree to, DA is free to impose punishment or otherwise as per his judgement. However, the mandatory consultation with vigilance must be done. In CVC related DAR cases, the mandatory consultation with Vigilance in case of disagreement signifies consultation with CVC.DA cannot communicate with CVC directly; he has to refer to Zonal Vigilance who refer it to Board Vigilance who in turn refer it to CVC. CVC’s advice is passed back to DA in the reverse order viz Rly. Board Vigilance to Zonal Vigilance to DA. Once DA has exonerated or imposed minor penalty, without following procedure as above, he should get the same reviewed by Revisionary authority on the advice of vigilance. Even without vigilance advice, if the error in procedure is detected later, the further dealings could only be done by appellate authority in case there is an appeal from CO pending. In absence of an appeal calling for Suo-motu revision only, Revision Authority can undertake the procedures to correct the error.

Ordinarily, the officer who has recorded his final decision in a disciplinary case should communicate the orders under his own signature. In exceptional cases, where this is not possible, the successor has to communicate the decision of predecessor without modification or alteration in any manner. 

In this case: - 

(i) the NIP prepared on a later date should not have been put up to ex-DA who had recorded orders on file; this shows the ignorance of rules on the part of dealer, 

(ii) the ex-DA should not have signed the NIP under his previous designation of DA, when he had already assumed a new charge; he should have allowed for the NIP to be signed by the incumbent DA at that point of time, 

(iii) incumbent DA should have signed NIP based on speaking orders of previous DA, without any alterations.  

1) The ex-DA should neither sign an NIP under their new designation for penalty recorded on file during their tenure in previous postings. 

2) This principle shall be applicable only to the final decision of DA recorded at the conclusion of disciplinary proceedings, i.e. the final orders passed in the case by the DA. Decisions, which are of an inter-locutory nature or of nature of step-in-aid of the final disposal of a Disciplinary proceedings will not be covered under this rule i.e. such decisions recorded by a predecessor DA are amenable to change if so considered by a successor DA. 

3) There is one exception however, where a DA (other than the President), can review his own final orders viz. where it is found subsequent to the imposition of penalty that the said penalty cannot be given effect to. For instance, in case of a penalty of stoppage of increments, if it is found that the CO is already at the maximum of the grade, it would not be possible to give effect to such a penalty. In such a case, the case should be referred back to DA, who on cancellation of original punishment should review his own order and issue a fresh order for a different penalty. 

4) However, these orders will not apply where the DA proposes to disagree with the advice of the CVC or to the decision recorded by the DA before referring the case to the UPSC for advice. These decisions are provisional in nature and can, therefore, be modified by the same authority or the successor DA, before a final decision is recorded and communicated to the charged official. 

In case of a minor penalty charge sheet for fraudulent use of passes where recovery of pecuniary losses was ordered as penalty by DA, the penalty is enhanced on appeal under the mistaken impression that recovery of pecuniary losses is not a penalty at all. 

In case of this type, viz. where loss has accrued to the Rly. Administration on account of negligence, willful disregard to rules, the rules are that the DA, in addition to the penalty of recovery from pay of the loss caused to Govt. by negligence or breach of orders , can also inflict any one of the penalties specified in clause (i), (ii), (iii), (iv), (v) & (vi) of Rule-6 of the RS (D&A) rules by way of one and the same order and in pursuance of the same proceedings. While this does not make it incumbent on DA that an additional penalty must be imposed, imposition of an additional penalty by AA, not on the grounds of consideration of offence, but on the grounds that ‘Recovery of loss from Pay ….’ as not being a penalty at all was technically not correct. On the ground of ‘Speaking order’ to that effect, such an imposition of additional penalty could be quashed on appeal at CAT/Court.

DA/AA asks routinely for fresh/De-novo inquiry in Major penalty cases if findings of DAR enquiry are not considered satisfactory or considered questionable.

(a) A fresh inquiry may be ordered only where there are grave lacunae / defects in the procedure adopted during inquiry, resulting in denial of natural justice. Typical defects which may justify fresh enquiry:- 

(i) Inquiry Officer held ex-parte inquiry without giving due notice. 

(ii) Inquiry officer resorted to ex-parte proceedings but detailed enquiry was not held. 

(iii) Inquiry officer relied upon enquiry held by someone else. Other than cases where such material flaw in the process of enquiry is evident, DA, if it does not agree with findings of IO, may record its disagreement in clear and cogent terms, giving its reasons and record its own appreciation of evidence and arrive at fresh findings. This would be the proper course of action rather than ordering a fresh inquiry. 

There is a provision for DA asking for ‘further’ inquiry as different from ‘fresh’ inquiry, where no grave procedural lapse is noted and only such lapses have occurred as can be rectified by a further enquiry. Illustrative cases where ‘further’ inquiry can be ordered by DA: - 

(i) When IO has relied on documents, which were not proved to be in presence of CO. 

(ii) Adjournment was denied in spite of adequate reasons for granting the same and case tried ex-parte because CO did not attend. 

(iii) Inquiry held in absence of Defence helper as he was not spared by administration. 

Typical cases where CAT/Courts struck down orders for ‘fresh’ or ‘further’ enquiry.

(i) DA disagrees with report of Enquiry Officer without recording reasons for disagreement -- violative of Article-14 of Constitution. 

(ii) DA disagrees with Inquiry report – Institution of ‘further’ enquiry by appointing a new Inquiry Officer – invalid. 

(iii) Inquiry officer did not give a definite finding – DA came to its own finding & imposed penalty – DA should have remitted case to IO for further enquiry & report and not decided the case himself. 

(vi) Further enquiry held under Rule-10 to produce additional evidence to overcome shortcomings in first inquiry – invalid.