ACTION ,REACTION AND INQUIRY

Now the charge sheet has been issued to Ms Durga Shakti Nagapal for her alleged misconduct, and she has already replied on the charged. This charge sheet can come in public domain in some days; Further High court of Allahabad has rejected PIL of Ms Nutan Thakur to set aside the suspension order. Now Supreme Court has also rejected the petition filed by advocate M L Sharma, who had sought quashing of all the proceedings against Nagpal for allegedly demolishing of wall of a mosque.

The bench headed by Justice H L Dattu dismissed the plea and said that it may entertain the petition if she (Nagpal) herself approaches the court. The bench further said that the officer can take care of herself and can also approach the other authorities including a court, against her suspension order.

In the both cases court has said that She (Durga) can approach the court and court can entertain the plea of her. But Still I believe that if Ms Durga Shakti Nagapal approach the court this juncture court will not accept her plea and rather will asked before approaching the court whether all option available to her for review appeal were exhausted ? If she approaches the court as on date she will be doing misconduct. I think she understands that as well and applying her mind correctly.  

But why so many legal luminaries knowing fully it trying to score the point and why they are not filing PIL in general to correct the law rather than specific case.  Before answering it let us understand the following in case of domestic inquiry

What is charge sheet?

Any disciplinary proceedings start with an allegation of some misconduct against the employee. Whether something/anything/nothing further will happen or not will obviously depend on first, the relevance and importance of the evidence and second on situation. If this is decided that means action stage as initiated and charge sheet is prepared which describe the article of charges and imputation of charges. The charge sheet itself decides the tone and tenure of action.

Why the charge Sheet issued?

In case of departmental inquiry charge sheet is issued it generally means that sufficient prima facie case has been built against the employee. Practically speaking the departmental enquiry is only initiated when the employer has made up his mind that a certain action has to be taken against a employee and these proceedings are carried out to fulfill the procedural requirement and employer try to prove that the principal of natural justice has been followed.

What is the difference between Domestic inquiry and criminal/Civil Investigation?

The Disciplinary proceedings are quasi judicial process by which the employer enquires into the allegation of misconduct on the part of employee. Criminal investigation does not fall in the domain of employer. Let us understand the criminal and civil offences as well. The criminal offence may have some motive while civil offences are with some consideration or may be misconduct. In disciplinary proceedings involving moral turpitude a departmental enquiry/action is generally necessary while misconduct not involving moral turpitude a disciplinary action may be avoided. In departmental inquiry it is not the concern of employer whether the facts established disclose the commission of criminal offence. The proceedings are neither criminal nor quasi criminal in nature. The nature of proceedings appears to be taken to civil proceedings. The materials of evidence in two proceedings departmental and criminal investigation are relevant in one and tabooed in other. An incriminating statement made by accused in criminal trail can be totally inadmissible in departmental inquiry or vice versa. The degree of proof which is necessary in an order of conviction is different from the degree of proof which is necessary to record the commission of delinquency. The domestic inquiry is not bound by the Rules of Evidence and probably it is ignorant of that. Article 20(2) of the constitution provides that a man cannot be punished for the same offence more than once. Relying upon this it is also contended that if the person is under criminal trial /convicted by criminal court then no action should be taken against him during departmental enquiry. 

Service Conditions

The employee –employer relation is law of master and servant and it is a law of contract and in this contract one of the parties has the power to adjudicate on the action of the other party. In this process complaint many times originate from employer (master) and enquiry is also conducted by the employer. In such case the principle of natural justice does not hold good here because the prosecutor is judge for his own cause. The Tribunal and Courts have the power to review the decision of employer if employee suffers from malafide victimization or where principle of natural justice is not applied

Courts view

India before globalization, the tendency of courts were pro employee but after globalization of 1991 at after changes in labour laws ,Tribunals and courts have not shown any positive response in service matter. In case of servicer rules and disciplinary matters, courts only comment on procedural law and not on substantive law. If procedure law is followed by employer courts rarely comments. Now in case of Durga Shakti Nagpal departmental inquiry has been started Commissioner has been appointed as Inquiry Authority. The commissioner will inquire into the article and imputation of the charges, She will be given full opportunity to demolish the article of charges, argument counter-argument shall be recorded and each party shall be asked to submit their written statement. Based on record on inquiry and written statements, witness and relevant documents, Commissioner will submit his report with proving, not proving and partially proving the article of charges. On the basis of report of commissioner, the employer Chief Secretary/Principal Secretary/ will decide the fate of Durga Shakti Nagpal . It is hoped that Commissioner will reports the facts without any external and internal pressure and will be unbiased in his report. All the procedures will be followed in this case as it has media attention. If the report is in favour of Durga can be accepted or rejected by Disciplinary authority. If, Durga is given punishment, after due process of law will court question it on the basis of substantive law?

The rules of suspension are very painful, one hand the all the service rules do not term the suspension as punishment and there no definite time frame wherein charge sheet can be filed against the suspended employee after suspension. The charge sheet can be filed/issued to officer may be after one year, two years etc. Even the courts have not come out in this matter with clarity. It only says reasonable time and reasonable time is highly subjective.

As such people, lawyer and activist who are filing PIL on behalf of Ms Durga Shakti should file PIL to bring change in service matter conduct discipline and appeal. The service rules should be in accordance to article 14 to 32 of the constitution. The responsibility and accountability of appointing and dismissing authority should be examined and   there should proper system of reward and punishment in acting as disciplinary authority or Inquiry authority. There should be provision of imposing severe punishment on Disciplinary Authority if is found that and action taken was vindictive or against the spirit of law so that a visible and vindictive and unconstitutional act of bureaucrats can be controlled. If this happens there will be many officers who will follow the rule of the land rather than illegal and unethical orders of politicians.