D&A Rule No.9: Procedure For Imposing Major Penalties

9.    Procedure for imposing Major Penalties:-

(1)   No order imposing any of the major penalties specified in clauses (v) to (ix) of Rule 6 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and Rule 10, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850) where such inquiry is held under that Act.

(2)   Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Railway servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, a Board of Inquiry or other authority to inquire into the truth thereof.

Provided that were there is a complaint of sexual harassment within the meaning of rule 3 C of the Railway Services (Conduct) Rules, 1966, the Complaints Committee established for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of sexual harassment, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

(3)   Where a Board of Inquiry is appointed under sub-rule (2) it shall consist of not less than two members, each of whom shall be higher in rank than the Railway servant against whom the inquiry is being held and none of whom shall be subordinate to the other member or members as the case may be, of such Board.

(4)   Where the Board of Inquiry consists of two or more than two members, the senior member shall be the Presiding Officer.

(5)   Every decision of the Board of Inquiry shall be passed by majority of votes, and where there is an equality of votes on the findings, the finding of each member shall be incorporated in the report prepared under clause (i) of sub-rule (25).

Explanation:- Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (12) and in sub-rules (14) to (25), to the inquiring authority shall be construed as a reference to the disciplinary authority.

(6)   Where it is proposed to hold an inquiry against a Railway servant under this rule and Rule 10, the disciplinary authority shall draw up or cause to be drawn up:-

(i)    The substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge;

(ii)   A statement of the imputations of misconduct or misbehavior in support of each article of charge which shall contain –

(a)  A statement of all relevant facts including any admission or confession made by the Railway servant;

(b)  A list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.

(7)   The disciplinary authority shall deliver or cause to be delivered to the Railway servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article of charge is proposed to be sustained and shall require the Railway servant to submit a written statement of his defence within ten days or such further time as the disciplinary authority may allow.

Note:- If copies of documents have not been delivered to the Railway servant along with the articles of charge and if he desires to inspect the same for the preparation of his defence, he may do so, within 10 days from the date of receipt of the articles of charge by him and complete inspection within ten days thereafter and shall state whether he desires to be heard in person.

(8)   The Railway servant may, for the purpose of his defence submit with the written statement of his defence, a list of witnesses to be examined on his behalf.

Note:- If the Railway servant applies in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (6), the disciplinary authority shall furnish him with a copy each of such statement as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.

(9)   (a) (i) On receipt of the written statement of defence, the disciplinary authority shall consider the same and decide whether the inquiry should be proceeded with under this rule.

(ii) Where the disciplinary authority decides to proceed with the inquiry it may itself inquire into such of the articles of charge as are not admitted or appoint under sub-rule (2) a Board of Inquiry or other authority for the purpose.

(iii) Where all the articles of charge have been admitted by the Railway servant in his written statement of defence, the disciplinary authority shall record its findings on each charge, after taking such further evidence as it may think fit and shall act in the manner laid down in Rule

(iv) If the disciplinary authority, after consideration of the written statement of defence, is of the opinion that the imposition of a major penalty is not necessary, it may drop the proceedings already initiated by it for imposition of major penalty, without prejudice to its right to impose any of the minor penalties, not attracting the provisions of sub-rule (2) of Rule 11. Where the disciplinary authority so drops the proceedings but considers it appropriate to impose any of the minor penalties, not attracting the provisions of sub-rule (2) of Rule 11, it may make an order imposing such penalty and it will not be necessary to give the Railway servant any further opportunity of making representation before the penalty is imposed.

(b) If no written statement of defence is submitted by the Railway servant, the disciplinary authority may itself inquire into the articles of charge or may, if it considers it necessary to do so, appoint, under sub-rule (2) an inquiring authority for the purpose and also inform the Railway servant of such appointment.

(c) Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a railway or any other Government servant to be known as Presenting Officer to present on its behalf the case in support of the articles of charge.

(10) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority:-

(i)  A copy of the articles of charge and the statement of the imputations of misconduct or misbehavior;

(ii) A copy of the written statement of defence, if any, submitted by the Railway servant;

(iii) A copy of the statement of witnesses, if any, referred to in sub-rule (6);

(iv) Evidence proving the delivery of the documents referred to in sub-rule (6) to the Railway servant;

(v) A copy of the order appointing the Presenting Officer, if any; and

(vi) A copy of the list of witnesses, if any, furnished by the Railway servant.

(11) The Railway servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the order appointing him as such, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time not exceeding ten days, as the inquiring authority may allow.

(12) The inquiring authority shall, if the Railway servant fails to appear within the specified time, or refuses or omits to plead, require the Presenting Officer if any, to produce the evidence by which he proposes to prove the articles of charge and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Railway servant may for the purpose of preparing his defence, give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow for the discovery or production of any documents which are in possession of Railway Administration but not mentioned in the list referred to in sub-rule (6).

Note: The Railway servant shall indicate the relevance of the documents required by him to be discovered or produced by the Railway Administration.

(13)(a) The Railway servant may represent his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement) working under the same Railway Administration, subject to whose jurisdiction and control he is working. He cannot engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner or the disciplinary authority having regard to the circumstances of the case, so permits. If the Railway servant is employed in the office of the Railway Board, its attached office or subordinate office, he may present his case with the assistance of any other Railway servant (including a Railway servant on leave preparatory to retirement), employed in the office of the Railway Board, attached office or subordinate office, as the case may be, in which he is working.

(b) The Railway servant may also present his case with the assistance of a retired Railway servant, subject to such conditions as may be specified by the President from time-to-time by general or special order in this behalf.

Note: (1) A non-gazetted Railway servant may take the assistance of an official of a Railway Trade Union, recognized by the Railway Administration under which the Railway servant is employed, to present his case before an inquiring authority but shall not engage a legal practitioner for the above purpose except in the circumstances brought out in clause (a). An official of a Railway Trade Union shall not be allowed to appear on behalf of an alleged delinquent railway official in connection with a disciplinary case pending against that official, to present his case favourably before an inquiring authority unless he has worked as such in a recognized Railway Trade Union for a period of at least one year continuously prior to his appearance before an inquiring authority for the above purpose and subject to the condition that he takes no fees.

Note:- (2) (i) Nomination of an assisting railway servant or an official of a recognized Railway Trade Union, who is a full time union worker, shall be made within twenty days from the date of appointment of the inquiring authority.

(ii) The nomination shall not be accepted if the person assisting has three pending disciplinary cases on hand in which he has to assist.

Provided that an official of a recognized Railway trade Union may assist in more than three pending disciplinary cases.

(14) After the nomination of the assisting Railway servant or the official of a Railway Trade Union and other necessary steps preliminary to the inquiry are completed, a date, ordinarily not exceeding one month from the date of appointment of the inquiring authority, shall be fixed for the inquiry and the Railway servant informed accordingly.

(15) The inquiring authority shall, on receipt of the notice for discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition:

Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.

(16) On receipt of the requisition referred to in sub-rule (15), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority by the specified time:

Provided that if the authority having the custody or possession of requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Railway servant and withdraw the requisition made by it for the production or discovery of such documents.

(17) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer, if any, and may be cross-examined by or on behalf of the Railway servant. The Presenting Officer, if any, shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.

(18) If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its discretion, allow the Presenting Officer, if any, to produce evidence not included in the list given to the Railway servant or may itself call for new evidence or recall and re-examine any witness and in such cases the Railway servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Railway servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Railway servant to produce new evidence if it is of the opinion that the production of such evidence is necessary in the interest of justice.

Note:- New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally.

(19)  When the case for disciplinary authority is closed, the Railway servant shall be required to state his defence orally, or in writing, as he may prefer. If the defence is made orally it shall be recorded and the Railway servant shall be required to sign the record. In either case a copy of the statement of defence shall be given to the Presenting Officer, if any.

(20) The evidence on behalf of the Railway servant shall then be produced. The Railway servant may examine himself in his own behalf, if he so prefers. The witnesses produced by the Railway servant shall then be examined by or on behalf of him and shall be cross-examined by or on behalf of the Presenting Officer, if any. The Railway servant shall be entitled to re-examine the witnesses on any point on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority.

The inquiring authority may also put such questions to the witnesses as it thinks fit.

(21)  The inquiring authority may, after the Railway servant closes his case, and shall, if the Railway servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Railway servant to explain any circumstances appearing in the evidence against him.

(22)  The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, and the Railway servant, or permit them to file written briefs of their respective cases, if they so desire.

(23)  If the Railway servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.

(24)  Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor, and partly by itself;

Provided that if, the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, it may recall, examine, cross-examine and    re-examine any such witnesses as hereinbefore provided.

(25)  (i) After the conclusion of the inquiry, a report shall be prepared and it shall contain:-

(a) The articles of charge and the statement of imputations of misconduct or misbehavior;

(b) The defence of the Railway servant in respect of each article of charge;

(c) An assessment of the evidence in respect of each article of charge; and

(d) The findings on each article of charge and the reasons there for.

Explanation:- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of charge, it may record its findings on such article of charge:

Provided that the findings on such article of charge shall not be recorded unless the Railway servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge.

(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include:-

(a) The report prepared by it under clause (i);

(b) The written statement of defence, if any, submitted by the Railway servant;

(c) The oral and documentary evidence produced in the course of the inquiry;

(d) Written briefs, if any, filed by the Presenting Officer, if any, or the Railway servant or both during the course of the enquiry; and

(e) The orders, if any, made by the disciplinary authority in regard to the inquiry.