RBE No. 90/1986: D&A Rules – Scope of Second Proviso to Article 311(2) of the Constitution

No.E(D&A)85 RG6-72, dated 16.05.1986

Sub: Judgment of the Supreme Court in Civil Appeal No.6814 of 1983, Civil Appeal No.3484 of 1982 etc. delivered on 11.07.1985 – Regarding the scope of second proviso to Article 311(2) of the Constitution.

Attention is invited to Board’s letter of even number dated 06.02.1986 and enclosures thereto, regarding judgment of Supreme Court delivered in Tulsi Ram Patel’s case on 11.07.1985 on the scope of second proviso to Article 311(2) of the Constitution. A copy of Department of Personnel & Training’s OM No.11012/11/85-Estt(A), dated 04.04.1986 clarifying the position further is circulated herewith for information and guidance.

Copy of Department of Personnel and Training’s
OM No.11012/11/85-Estt(A), dated 04.04.1986

Sub: Judgment of the Supreme Court in Civil Appeal No.6814 of 1983, Civil Appeal No.3484 of 1982 etc. delivered on 11.07.1985 regarding the scope of second proviso to Article 311(2) of the Constitution.

1. The undersigned is directed to refer to Para 6 to 8 of this Department’s OM of even number dated 11th November, 1985, wherein instructions are contained relating to factors that are relevant where action is taken under Clause (b) of the second proviso to Article 311(2) of the Constitution.
2. A question has been raised whether in a case where clause (b) of the second proviso to Article 311(2) of the Constitution is involved, the disciplinary authority may dispense with the issuing of charge memo listing the charges. Clause (b) is attracted in a case where the disciplinary authority concludes that “it is not reasonably practicable to hold such an inquiry”. The circumstances leading to such a conclusion may exist either before the inquiry is commenced or may develop in the course of inquiry. In the Tulsi Ram Patel’s case the Supreme Court observed as under:-
“It is not necessary that a situation which makes the holding of an inquiry not reasonably practicable should exist before the disciplinary inquiry is initiated against a Government servant. Such a situation can also come into existence subsequently during the course of an inquiry, for instance after the service of a charge sheet upon the Government servant or after he has filed his written statement thereto or even after the evidence has been led in part. In such a case also, the disciplinary authority would be entitled to apply clause (b) of the second proviso because the word “inquiry” in that clause includes part of an inquiry.”
3. Article 311(2) of the Constitution concern itself with punishment of dismissal, removal or reduction in rank, which comes in the category of major punishment under the service rules providing the procedure for disciplinary action against Government servants. The first step in that procedure is the service of a memorandum of charges or a charge sheet, as popularly known, on the Government servant, listing the charges against him and calling upon him, by a specified date, to furnish a reply either denying or accepting all or any of the charges. An inquiry hence commences under the service rules with the service of the charge sheet. Obviously, if the circumstances even before the commencement of an inquiry are such that the disciplinary authority holds that it is not reasonably practicable to hold an inquiry, no action by way of service of charge sheet would be necessary. On the other hand, if such circumstances developed in the course of inquiry, a charge sheet would already have been served on the Government servant concerned.
4. In Para 6(i) of this Department’s OM dated 11th November, 1985, certain illustrative cases have been enumerated where the disciplinary authority may conclude that it is not reasonably practicable to hold the inquiry. It is important to note that the circumstances of the nature given in the illustrative cases, or other circumstances which make the disciplinary authority conclude that it is not reasonably practicable to hold inquiry, should actually subsist at the time when the conclusion is arrived at. The threat, intimidation or the atmosphere of violence or of a general indiscipline and insubordination, for example, referred to in the illustrative cases, should be subsisting at the time when the disciplinary authority arrives at his conclusion. It will not be correct on the part of the disciplinary authority to anticipate such circumstances as those that are likely to arise, possibly later in time, as grounds for holding that it is not reasonably practicable to hold the inquiry and, on that basis, dispenses with serving a charge sheet on the Government servant.
5. Ministry of Finance etc. are requested to bring the above clarification to the notice of all the authorities serving under their control for their information, guidance and compliance.

Download Railway Board Circular RBE No. 90/1986

Forward reference ⇒RBE No.