RBE No. 35/2008: UPSC Advice – Communication in D&A cases

No.E(D&A)2008 RG6-9, dated 11.03.2008   

Sub: Advice of the Union Public Service Commission (UPSC) in the disciplinary cases to be communicated to the delinquent employee along with the final order of penalty.

A copy of Department of Personnel and Training’s OM No.11012/10/2007-Estt.(A), dated 07.01.2008 on the above subject is sent herewith. The contents of the above OM may please be brought to the notice of all concerned on your Railway for their information and guidance. The corresponding provisions to Rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965; mentioned in the first para of the OM dated 07.01.2008, are contained in Rule 28 of the Railway Servants (Discipline and Appeal) Rules, 1968.

Please acknowledge receipt.

Ministry of Personnel, Public Grievances and Pensions

(Department of Personnel and Training)

O.M. No. 11012/10/2007-Estt. (A), dated 7^th January, 2008

OFFICE MEMORANDUM

Sub: Central Civil Services (Classification, Control and Appeal) Rules, 1965 – Advice of the Union Public Service Commission (UPSC) to be communicated to the delinquent Government servant along with the final order of penalty.

1. The undersigned is directed to refer to the provisions of rule 32 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 and to say that the nature of consultation with the Union Public Service Commission (UPSC) and the manner of communication of the advice of the UPSC to the delinquent Government servant have been subject matter of litigation in some cases in CAT/ High Courts etc. The questions raised from time to time are whether consultation with the UPSC under Article 320(3)(c) of the Constitution is mandatory and binding on the appropriate authority; and whether a copy of the UPSC’s advice should be furnished to the Charged Officer before the order imposing a penalty is issued. The Hon’ble Supreme Court of India has finally decided the matter in its judgment dated the 19^th April, 2007 in Civil Appeal No.2067 of 2007 (Union of India and Another vs. T.V. Patel).

2. In the above judgment, the Hon’ble Supreme Court referred to the cases of State of U.P. vs. Mandbodhan Lal Srivastava (Constitution Bench of the Hon’ble Supreme Court) [1958 SCR 533] and Ram Gopal Chaturvedi vs. State of Madhya Pradesh (three Judge Bench) [1969 (2) SCC 240] and did not agree with the contentions on behalf of the respondent that non-supply of a copy of the advice tendered by the UPSC before the final order was passed deprived the delinquent officer of making an effective representation and that it, therefore, vitiates the order The Hon’ble Supreme Court held as follows:-

“In view of the law settled by the Constitution Bench of this Court in the case of Srivastava (supra) we hold that the provisions of Article 320(3)(c) of the Constitution of India are not mandatory and they do not confer any rights on the public servant so that the absence of consultation or any irregularity in consultation process or furnishing a copy of the advice tendered by the UPSC, if any, does not afford the delinquent government servant a cause of action in a court of law.”

3.     The judgment of the Hon’ble Supreme court in the case of S.N. Narula vs. Union of India and others [SLP (C) 12188/2003], on the facts and circumstances of that case apparently did not lay down any law. Whereas in the later judgment in T.V. Patel’s case delivered on 19.04.2007, the Appex Court has laid down law relying on two earlier decisions of the Apex Court, one of the Constitution Bench and another of a three Judge Bench. In view of the judgment dated 19.04.2007 of the Hon’ble Supreme Court it is clear that the Disciplinary Authority is not required to furnish a copy of the advice tendered by the Union Public Service Commission to the Charged Officer before the final order of penalty is passed.

4.     All Ministries/ Departments/ Offices etc. are, therefore, requested to comply with the existing provisions of CCS(CCA) Rules, 1965 and bring the contents of this O.M. to the notice of all concerned for adopting a uniform stand and to make serious efforts to get the litigation cases on this subject disposed of by the various courts on the basis of the law laid down by the Hon’ble Supreme Court in the judgments referred to in the preceding paragraphs.

Download Railway Board Circular RBE No. 35/2008

Forward reference ⇒ RBE No.