Conduct & Disciplinary Rules - 41 to 50 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C
Conduct & Disciplinary Rules - 41 to 50 : Article from Mr. K.V.Shridharan, Ex General Secretary, AIPEU Group C
Conduct & Disciplinary Rules – 41
Case Law on Conduct rules
31. The High Court of Calcutta (1986 (I) LLJ 95) in the case of S. Amar Nanoy Chowdry Vs Union of India and others held “it would be legal to start disciplinary proceedings against Railway servants for alleged misconduct of coop society etc. The appellant has become the Secretary of the Coop society only as a Railway servant”
32. In the case of Management of Ashok Leyland Ltd Vs Presiding Officer, III Addl Labour Court Meerat ( 1995 (I) LLJ 887) the Madras High Court held – “ An anti-social act of that individual official for good reason can be found to be misconduct affecting the public interest and thus the interest of the employer as well”
33. In Dyani’s case ( 1963 (I) LLJ 684 SC ) the Supreme Court expressed the view that – “ the supreme court has never found anything wrong in the case of an employer taking action against the employee for such acts of employees which are outside the service conditions but which affect the society at large and employer in particular”
34. The Supreme Court in the case of Orissa Cement Ltd Vs Habibulla (1960 (I) LLJ 522) held that “it would be difficult to accede to the argument that if the evidence given by an employee in an industrial adjudication is disbelieved that itself without anything more would constitute misconduct”
35. In another case the Supreme Court held (1978 (I) LLJ 508) – “that the private quarrel between an employee and a stranger with which the employer is not concerned falls outside the category of misconduct”
36. The High Court of Kerala (1985 (II) LLJ 88) has held – “that even criticism of an employer by an employee couched in moderate language been held not to amount to misconduct. No authority is entitled to treat the exercise of a fundamental right (of making adverse comments in the press) as misconduct”
37. The High Court of Madras ( 1991 (I) LLJ 344 ) has held that – “ an order of transfer made in violation of the service rules need not be obeyed and noncompliance with such order cannot result in disciplinary action”
38. The Supreme Court of India in the case of Union of India Vs. J. Ahamed (AIR 1979 SC 1022) had held as under – “it is however, difficult to believe that lack of efficiency or attainment of highest standard in the discharge of duty attached to public office would ipso-facto constitute misconduct. There may be negligence in performing of duty or error of judgment in evaluating the developing situation but that would not constitute unless the consequences directly attributable to negligence would be such as to irreparable or the resultant damage would be so heavy that the degree of culpability would be very high
39. The High Court of Calcutta had held (1992 (II)LLJ 698 ) that – it would not be right for the work man to operate the newly installed equipment without being trained in that behalf. If on account of such understanding and feeling they refuse to obey the orders of their supervisors, it cannot be said that they wilfully refused to obey lawful and reasonable orders of their supervisors”
40. The High Court of Bombay in S.A. Kerker Vs SUN PO IT and others (1996 (I) LLJ 675) has held that – “merely securing a wrong or false medical certificate by itself does not amount to misconduct. The certificate of the doctor may be false due to ignorance or incompetence and therefore a wrong or false certificate does not necessarily create delinquency either on the doctor or on the person who produced it”
Where an employee has participated in a strike which is not illegal, it is not an unbecoming act on his part nor does it amount to lack of devotion to duty.
[ Suraj Prasad v. Northern Railway, AIR 1967 All. 457.]
Conduct & Disciplinary Rules – 42
Case Law on Conduct rules
41. Participation in Strikes and Demonstrations, whether misconduct
A demonstration is a visible manifestation of the feelings or sentiments of an individual or group. It is thus the communication of one's ideas to others to whom it is intended to be conveyed. It is in effect a form of speech or of expression because, speech need not be vocal since signs by dumb persons would also be a form of speech. A demonstration might also take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended, the feelings of the group which assemble. From the very nature of things, a demonstration may take various forms. It may be noisy and disorderly. For instance stone throwing by a crowd may be cited as an example of a violent and disorderly demonstration, and it can equally be peaceful and, such as, when the members of the group merely wear some badges, drawing attention to their grievances. Therefore, any law which prohibits any form of demonstration by Government servants is violative of their fundamental rights under Article 19 (1) (b) of the Constitution.
[Kameshwar Prasad v. State of Bihar, 1962 Supp. (3) SCR 369; 1962 (13) FLR 50; 1962 (1) LLJ 294; AIR 1962 S.C. 1166.] .
42.Where a Government servant participates in various demonstrations organized in support of strike, which was declared illegal, it does not mean that he participated in the strike.
[O.K. Ghosh v. E. X. Joseph, AIR 1963 SC 812.]
43. The fact that the citizens of this country have freedom of speech, freedom to assemble peacefully and freedom to form associations does not mean that they can exercise these freedoms at whatever place they may like.
[Railway Board v. Niranjan Singh, AIR 1969 SC 966.]
44. A perfectly peaceful demonstration by wearing black-badges would not in any way prevent or is calculated to prevent transaction of the normal business of the Banking Company.
[ M. Ramu v. Government of India, AIR 1970 Mad. 331.] Becoming a member of an unrecognised association - Whether an act of misconduct
45. As per the law laid down by the Supreme Court, the Government cannot compel an employee to become a member only of a recognised association. Therefore, becoming a member of an unrecognised association does not constitute an act of misconduct.
Right to form association is a fundamental right. Art. 19 (1) of the Constitution lays down as follows :
"19 (1) All citizens shall have the right - (c) to form associations or unions : X X X X X X X X X X
(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.
It is an unreasonable restriction to compel employees to obtain permission of the authorities before forming union and to prohibit them from becoming members of union not constituted in accordance with the orders of Government. In this case, it was observed that even though Government as employer might choose to recognise one association only as representative of a particular class of employees, it could not prevent the employees from becoming members of other associations which were lawful nor make the previous permission of Government a condition precedent for the exercise of the employees' right to become a member of an association.
[Ramakrishnaiah v. Dist. Board, AIR 1952, Mad. 253]
Case Law on Conduct rules
46. Excerpts from "Shorter Constitution of India" by Durga Das Basu
Conditions upon recognition and withdrawal of recognition
Though there is no fundamental right, in relation to an association, to obtain Government recognition, the question arises whether the fundamental right of association may be rendered nugatory by imposing recognition as a condition for dealing with the Government or by imposing unreasonable conditions for the grant or continuance of Government recognition.
(a) To condition the freedom of individuals to form any association they like upon the grant by the Government of recognition to such association, or in other words, to deny the individuals the freedom to become members of any association, not recognised by the Government, constitutes an infringement of freedom of association guaranteed by Art. 19 (1) (c).
(b) Even though in the case of Government servants, the State has an interest in the associations formed by the employees, in the interests of efficiency or discipline, the control of the Government over such associations must, in order to be valid, be relatable to 'public order' or 'morality' on which grounds only the freedom of association may be restricted, under Art. 19 (4). Where, therefore, the Government compels an employee to become a member only of a 'recognised association' and then provides that recognition may be refused or withdrawn on grounds unrelated to public order or morality, such restrictions renders illusory the fundamental right guaranteed by Art. 19 (1) (c).
[O.K. Ghosh v. E.X. Joseph AIR 1963 SC 812 (815)]
47. Association with political party - Breach of Conduct Rules
A civil servant like any other citizen is entitled to the freedom of political conviction. But by virtue of his special obligations as a civil servant, he is debarred from giving expression to his conviction in a manner which will interfere with his official duties as a loyal Government servant. Therefore, any rule regulating the conduct of Government servants which prohibits Government servants from taking active part in politics amounts only to a reasonable restriction and cannot be struck down as infringing any of the freedoms guaranteed under Art.19 of the Constitution.
[P.N. Rangaswamy v. Commissioner of Coimbatore, AIR 1968 Madras, 387.]
48. Criticism of Government - Whether misconduct
A rule which prohibits the Government servants from publishing any document or making any public utterances, critical of any current or recent policy or action of the Government amounts to a blanket restriction on their freedom of speech and expression and prohibits them from making public utterance, even if it be an utterance relating to their conditions of service, and even at a meeting of the Government servants, if it has the effect of any adverse criticism of any current or recent policy or action of the Government. A rule of this kind cannot be a reasonable restriction of the Fundamental Rights guaranteed under Art. 19 (1) (a) of the Constitution
B. Manmohan V State of Mysore 1966 (1) Mys.L.J.23)
49. Devotion to duty implies due care on the part of an employee in performance of work assigned to him.
Om Prakash Bindal v. Union of India (1984) 2 SLJ 28 (All.); (1984)SLR 391.)
50. Rule 3 (1) (iii) of the CCS (Conduct) Rules merely asks Government servants not to do anything which is unbecoming of a Government servant. What is unbecoming can always be ascertained having regard to the entirety of the conduct and that the sub-rule merely asks him to keep himself within the bounds of administrative decency. It was further held " given common sense" and a sense of decency, it will not be difficult to judge whether, what conduct amounts to unbecoming conduct.
While discipline should be given due importance, one need not be too touchy too. Having regard to the then prevailing clash of interest between two groups in the department and the position occupied by the petitioner at the relevant time, it does not appear reasonable to hold that the petitioner was guilty of conduct unbecoming of a Government servant.
[ Mahendra Kumar v. Union of India (1984), SL) 34 (A.P.) (1985), SLR 181.]
Case Law on Conduct rules
51. It is difficult to define in the abstract what conduct would be "unbecoming of a Corporation employee". It can be answered only in the concrete circumstances of a particular case. What behavior is so unbecoming an officer of the Corporation as to come within Regulation 32 will always be a question of fact. What may be an unbecoming conduct in set of circumstances may not be unbecoming in another combination of circumstances? It all depends on the particular facts of each case. No cut and dried definition of unbecoming conduct can be offered.
[ S.C. Gupta v. Food Corporation of India, (1984) 2 SLJ 392 (Delhi).]
52. Sometimes 'transfer' is malafide and more dangerous than punishment
The power of transfer must be exercised honestly, bona fide am reasonably. If the power is exercised on extraneous consideration or on oblique motives or to accommodate another servant, the transter is mala fide and the affected person has the cause of action to challenge the transfer order.
DJenamani Prafulla Kumar Roy v. State of Orissa, 1981 (1) SLJ 500J
53. Sometimes 'transfer' is more dangerous than punishment
It cannot be disputed that an employer has a right to transfer his employee, who had accepted the employment fully knowing that he was liable to be transferred from one station to another for administrative reasons and in the interest of the employer. This was one of the conditions of service. Therefore, no employee can demur or cavil at an order of transfer. It is only when an order of transfer is made otherwise than in public interest or for no administrative reasons and in the circumstances amounting to punishment or with mala fide instructions that the transfer order gets exposed to challenge. The right to transter an employer is a powerful weapon in the hands of the employee. Sometimes it is more dangerous that other punishments. Recent history bears testimony to this. It may, at times, bear the mask of innocuousness. What is ostensible in a transfer order may not be the real object. Behind the mask of innocence may hide sweet revenge, a desire to get rid of an inconvenient employee, or to keep at bay an activist or a stormy petrel. When the Court is alerted, the Court has necessarily to tear the veil of deceptive innocuousness and see what exactly motivated the transfer. This court can and should, in cases where it is satisfied that the real object of transfer is not what is apparent, examine what exactly was behind the transfer.
[Puspakaran v. Coir Board, 1978 KLT 539.]
54. Transfer of Association/Union activists
When a Union Officer has been transferred a number of times during the course of one year and the transfer of others were not insisted upon and number of other employees were not transferred for years together, then the transfer is by way of victimization.
[S.K. Kutalik v. Union Bank, 1962 (S) FLR 449 (L.C.).]
When the need for transfer is beyond question, the transfer cannot be challenged because three of the five transferred employees happened to be Trade Union Officers.
[I. C. Bhattacharya v. United Bank of India, 1953-II, L.L.) 526 (AITT Banks Dispute.]
55. When Court/ Tribunal may interfere with orders of transfer
(i) the transfer is mala fide or arbitrary or perverse;
(ii) it adversely alters the service conditions in terms of rank, pay emoluments;
(iii) guidelines laid down by the department are infringed and lastly,
(iv) if it is frequently ordered.
[Rajaram Bachhulal v. Union of India. 1992 (6) SLR 16 Central Administrative Tribunal, Bombay Bench.]
THIS IS NOT EXHAUSTIVE. THERE ARE MANY MORE. YOU SHOULD LEARN HOW TO USE THEM PROPERLY. MANY CLASSES WILL BE CONDUCTED IN FUTURE. DON’T WORRY. NOW PLEASE READ AND PRESERVE
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
1. PROCEDURE OF INVESTIGATIONS INTO LOSS AND FRAUD CASES
(i) As soon as a report of a case of alleged misappropriation/ fraud comes to notice, preliminary enquiries should be conducted by S.D.I/A.S.P.Os/Divisional Supdt immediately. The first step is to prevent further advent of misappropriation/fraud to secure the relevant records/documents from manipulation or destruction. The moment a prima-facie crime is established and the amount involved is more than Rs. 50000 the case should be reported to police preserving all relevant records at all ends.
(ii) If the prime offender is pinpointed and his fault or misconduct is established, he should be removed from the scene either by transferring him or placing him under suspension or putting him off from duty in case of GDS immediately.
(iii) Certain levels have been prescribed for conducting the detailed enquiries into loss and fraud cases according to the monetary involvement. As soon as the loss exceeds the limit up to which the Divisional Supdt or his subordinate officers are empowered to enquire into the case, they should send a report by telegram followed by a preliminary report to the next higher authority to arrange for the detailed enquiry by the authority of appropriate level. The detailed enquiry into every such case should be completed within 3 months.
(iv) The modus operandi should be done into deeply and in case any lacuna in rules or procedures is detected, it should be prominently brought out in the report. If it can be rectified at the Divisional level, orders should be issued immediately. Else it should be perused with higher authorities.
(v) The next important step is the completion of verification of past work of primary offender to arrive at a definite conclusion of the magnitude of the fraud. This should also be completed within three months. If the office involved is an E.D.B.O/E.D.S.O care should be taken to give wide publicity of the removal of the primary offender so that the member of public may not be further deceived. In case of frauds in S.B/N.S.C/M.O transactions, it is. always necessary to replace the set of stamps of the office immediately to prevent misuse of the existing set of stamps / seals.
(vi) The details of the property in the name of the primary offender should be collected and the Revenue authorities should be approached to prevent their sale / disposal. Action under the Public Accountants Default Act should also be considered in consultation with Govt. Advocate.
(vii) Simultaneously with the enquiries made from the defrauded persons, the claim papers and other evidence should be collected to eliminate the delays in the settlement of claims which should at all stages be given top priority.
(viii) There is no bar to initiate departmental disciplinary action against the principal and subsidiary offenders immediately after the enquiries are over and even if the case is under police investigation or under trial in the Court. However, if a stay is ordered by a competent court the proceedings should be deferred.
(ix) Photostat copies of all relevant documents should be kept before handing over the originals to the police or court and the originals should be shown to the principal / subsidiary offenders and their signatures should be obtained on the photostat copies in token of having examined the originals. This will cut delays, hindrance in conducting the disciplinary cases.
(Extract from Page-15 of Compendium on Postal complaint issued by the Department of Posts 1990).
2. INVESTIGATION OF LOSS AND FRAUD CASES,
S.No | Level of Investing officer | Revised Monetary limit (Rs.) |
1 | Inspector Posts/ ASPOs | Upto Rs.1 Lakh |
2 | Divisional heads/ Sr PM/ Chief PM/ Dy Director of Mumbai/Kolkata GPO | > Rs.1 Lakh upto Rs.2 Lakhs |
3 | Asst Director/ APMG of Circle/Regional office | >Rs.2 Lakhs upto Rs.5 Lakhs |
4 | Director( including Directors in GPOs or any other Director level officer)/PMG/CPMG | >Rs.5 Lakhs |
(D.G. Post No. 8-01/2019-Inv. dt. 24-10-2019).
1.All loss and fraud cases should be dealt with by the respective Divl. Supdt. Inquiry/ Investigation should also be done in all cases by the Division. The limit as shown above is fixed for inquiry/investigation by those officers in addition to enquiry conducting by the Division.
2. The work of Circle office has been decentralised after the creation of the Post of Regional PMGs. All the loss and fraud cases exceeding Rs. 200000/- should be registered at the Regional Office. All reports relating to loss and fraud cases are required to be submitted to Regional office instead of C.O. where the regional PMGs are functioning. The circle-level enquiry report conducted by D.P.S. is also required to be submitted to the Directorate directly from the office of the Regional PMGs.
Conduct & Disciplinary Rules – 46
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
3. TIME LIMIT FOR INQUIRY AND INVESTIGATION
(i) The delay in taking up departmental investigation is a potential area of customer irritation besides frustrating the inquiries. The pace of settlement of claims largely depends on prompt completion of departmental investigations. The delay in this sector is more pronounced in money order frauds, primarily due to lack of promptitude in requisitioning paid vouchers from the Accounts Unit and to some extent owing to lack of adequate response from the Accounts Units as well. In the interest of early completion of the Departmental investigation, it is necessary that the Divisional Heads promptly requisite the vouchers from the Director of Accounts and bring the cases where lack of response by Accounts Units as noticed to the knowledge of Regional Director or the P.M.G.
(ii) In view of increasing need for quickening the pace of investigation, it is hereby laid down that departmental investigation in all frauds should be completed within six months from the date of detection of frauds.
(iii) Special attention is also required to be given on Circle level investigation. It is seen that in a number of cases, if Circle level investigation is taken up after much delay even after years the primary objective of the analysis of modus operandi of frauds, quickening the process of settlement of claims etc. are defeated. It is therefore reiterated that the Head of circles should personally ensure that these Circle level investigations are taken up by the appropriate authorities without any delay.
(iv) Similarly since the Circle level investigations are taken up at the instance of/on behalf of the Heads of Circle, the reports should invariably be reviewed by the P.M.G/Addl., P.M.G and a copy of the report should be sent to the Directorate with the remarks/comments of P.M.G/Addl., P.M.G along with a copy of report in S.Q.F.
(D.G Posts No. 8-1/Rlg/87-INV dt. 15-1-1988).
4. CASES TO BE REPORTED TO THE HEAD OF THE CIRCLE/REGION AND DIRECTORATE
The following cases should always be reported to the Head of the Circle:
(a) Highway robberies and attempted highway robberies of the mail.
(b) Losses of mails due to accident and air-crash.
(c) Cases of house breaking and theft in which loss to Government is involved.
(d) Cases of fraud and loss or misappropriation of Government money.
(e) Improper or fraudulent use etc. of postage stamps.
(f) Loss of or tampering with registered articles of all kinds or damage to their contents in which loss to Government is involved.
(g)The death of or serious injury to a postal official by violence or accident.
(h) All occurrences of a grave character, such as the destruction of offices by fire, the loss of mail boats and attack on offices by dacoities etc.
(i) All cases under section-52 of the Post Office Act.
(i) Loss of the records of a Post Office.
(k) Loss or theft of Indian Postal Orders and Post Office certificates from the stock of a post office.
Note-1.
The Supdt. should immediately inform the Head of the Circle by telegraph in the cases of
(i) Theft, loss, tampering, robbery and shocking reports of frauds and losses involving Rs. 10,000/- and above, report on which appear in the local newspapers.
(ii) A mail bag being lost, stolen, destroyed by fire etc. and
(iii) Death of an official while on duty and if important mails are concerned, the Head of the Circle will notify the loss to the public through the press. In all other cases the local Postmaster will exhibit on the notice board the particulars as to the number and date, as also the name of the office of posting of the registered and insured letter or parcel mail articles lost.
(Rule 170 of P & T Manual Vol. V).
Note: The report should invariably be submitted to the Regional P. M. G, in addition to Head of the Circle. As per the existing instruction, the loss and fraud cases of involvement exceeding Rs. 500000/- should be reported to the Directorate by the Regional PMG/C.O. by telegram.
Conduct & Disciplinary Rules – 47
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
5. The monetary limit of investigation as discussed is required to be followed meticulously.
1. The amount of security deposit in case of EDAs. In respect of EDAs even in cases involving loss not exceeding the amount of security deposit, the discretion to waive prosecution shall be exercised only if the loss has been made good and there are extenuating circumstances like length of service to justify the exercise of the discretion.
2. There shall be no objection to the report being lodged immediately with the police after preliminary enquiries have been completed where the nature or circumstances of the case i.e. in case of theft, highway robbery, attacks on employees, advantage on an immediate house search or the likelihood of accused absconding etc. require the case to be reported to the police immediately. As per DG(P) letter No. 18-75/85-Inv dated 23-12-85, the PMG may decide which case is to be reported to the police or not in case of thefts relating to petty articles. (R-80 and note 1 below it. Vol III] (DGP & T No. 6/5/70-Disc-dated 29-1-71).
3. Cases involving bribery and corruption should normally be reported to SPE. If however in some cases which are of a very intricate nature it is felt that the local police will not be able to successfully investigate, the case may be reported to the SPE after the approval of the head of the circle.
4. In the case of loss of insured articles, the Postmaster or head sorter should immediately report the loss as required by Rule 144. of Vol-V. He should make a thorough search in the office or mail van and if could not be found take down the names of all present noting the share which each had in the work of receiving, opening and handling the mail. If necessary, he should prevent any one from leaving the office or the platform at the terminal station pending the arrival of the police, who should invariably be called, in which an Insured article is received short. In case of short receipt an Insured article the officer in charge before calling the police should satisfy himself that a prima facie case has been established. [Rule 206(3) and note below it Vol. V]
6. CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST:
a. in criminal misappropriation, the properties come into possession of the offender by some casualty or otherwise and he afterwards misappropriates it. In the criminal breach of trust, the offender is lawfully entrusted with the property and he dishonestly misappropriates the same, or wilfully surfers any other person to do so, instead of discharging the trust attached to it.
i. In criminal misappropriation there is no contractual relation-ship, but there is such a relationship in criminal breach of trust.
ii. In criminal misappropriation there is the conversion of the property coming into possession of the offender anyhow. but in criminal breach of trust there is the conversion of property held in a fiduciary character.
iii. A breach of trust includes criminal misappropriation but the converse is not always true.
b. Forgery - The ingredients are:
- The making of a false document or part of it
- Such making of a false document should be with intent
- To cause damage or injury to the public or to any person
- To support any claim or title
- To cause any person to part with property or,
- To enter into any express or implied contract, or,
- To commit fraud or that fraud may be committed.
c. Some crimes & their implications
Section 161: "Being or expecting to be a public servant and taking a gratification in respect of an official act”.
Cognizable and non-bailable offence-punishable with imprisonment for 3 years or fine, or both-triable by a First Class Magistrate.
Section 218: “Public servant framing an incorrect record or writing with intent to save person from punishment, or property from forfeiture-cognizable but bailable offence - Imprisonment for 3 years or fine or both-triable by a Magistrate of the First Class.
Section 262: “Using a Government stamp known to have been used before cognizable, but bailable offence-punishable with imprisonment for 2 years or fine or both can be tried by any Magistrate.
Section 263: "Erasure of mark denoting that stamps have been used - cognizable but bailable offence-punishable with imprisonment for 3 years of fine or both-triable by a First Class Magistrate.
379: “Theft”-cognizable and non-bailable offence-punishable with imprisonment for 3 years or fine or both-triable by any Magistrate.
Section 392: "Robbery"- cognizable and non-bailable offence punishable with imprisonment (rigorous) for 10 years and fine-triable by the First Class Magistrate.
Section 403: "Dishonest misappropriation of movable property, or converting it to one's own use- non-cognizable and bailable offence, punishable with imprisonment for 3 years or fine or both-triable by any for by any Magistrate.
Section 409: Criminal breach of trust by public servant cognizable and non-bailable offence-punishable with imprisonment for life, or imprisonment for 10 years and fine triable by a First Class Magistrate (Criminal Breach of trust by a person other than a public servant falls under section 406 punishable with imprisonment for 3 years or fine or both.
Conduct & Disciplinary Rules – 48
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
7. DEPARTMENTAL PROCEEDINGS AND PROSECUTION IN CASE OF CRIMINAL MISCONDUCT
i. As soon as sufficient evidence is available for the purpose in the course of investigation in case of misconduct either through departmental inquiry or through police (including SPE) action should be taken under CCS(CCA) rules or other appropriate disciplinary proceedings should be initiated forthwith. (R-128 B Vol-II)
ii. In suitable case criminal proceeding should be initiated where the competent authority is satisfied that there is no criminal case which can be reasonably sustained against such an officer Criminal prosecution should not of course be resorted to, but prosecution should not be avoided merely on the ground that the case might lead to an acquittal. (R 128-C Vol-II)
iii. In case a Govt. Servant is acquitted during the trial court, it may be necessary to review the decision taken earlier as a result of the departmental proceedings. It should be seen whether the legal proceedings and departmental proceedings covered precisely the same ground. If they did not and if the legal proceedings related only to one or two charges, it may not be found necessary to alter the decision already taken. In such cases the competent authority may in the departmental proceedings hold that the Govt. Servant was guilty of a departmental misdemeanour and he had not believed in the manner in which he was expected to behave. (R 128-D Vol-II)
8. CRIMINAL PROCEEDINGS
In all criminal cases the distinction between cognizable and non-cognizable offence (see section 4(1) and (n) of the Criminal procedure code) should be carefully observed. All cases of highway robbery, theft, criminal breach of trust, cheating by impersonation and all offences under section 52 of the P.O. Act are cognizable by police; but cheating (otherwise than by impersonation), forgery, and all offences under the Post Office Act (except those under section 52) and under the Telegraph Act (except such as are punishable with imprisonment for three years or more) are non-cognizable. Offences under section 20 of the Indian Telegraph Act are non-cognizable. (R-129 Vol-II)
2. In cognizable cases it should be remembered that, when information has once been given to the police under section 154 of the Criminal Procedure Code, the action to be taken in the matter will be controlled by the police. The local officer of the department should however keep in close personal touch with the progress of the enquiry and should render the police every possible assistance. There are however cognizable cases in which a prosecution may not be desirable and the orders of the Supdt/Sr. Supdt. of POs or RMS, Presidency postmaster, Ist class Postmaster or of officers of and above the rank of deputy superintendent in charge of a departmental telegraph office, as the case may be, should be obtained before information is laid against the offender, except in cases of urgency where there is reason to believe that the offender will abscond or in which immediate action is necessary in order to secure evidence.
Note:- Before informing the police the officer concerned should satisfy himself that documentary or other evidence actually available affords reasonable grounds for believing that a cognizable offence has been committed and that the suspected official acted with dishonest intent. (R 130 Vol-II)
3. In non-Cognizable cases, the Supdt/Sr Supdt. of POs of RMS as the case may be must take up investigation with the least possible delay; but if it is necessary or advisable to obtain the aid of the police, the fact should be placed in writing before the nearest Magistrate having jurisdiction, and he should be requested under section 155 of the Cr P.C. to direct the police also to hold an investigation. (R 131 Vol-II)
4. When criminal case comes up for hearing in the court an IPOs/IRM or other officer should ordinarily be instructed to be present in the court to represent the Dept. and to give information on any matters of departmental procedure. (R 145 Vol-II)
1. No prosecution can be launched against a govt. Servant for offences under section 161, 164 or 165 of IPC or section 5 of prevention of corruption Act 1947 without the sanction of the appropriate administrative authority. (Section 6 of the POC Act 1947)
Conduct & Disciplinary Rules – 49
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
9. INSTITUTION OF CRIMINAL PROCEEDINGS
A criminal prosecution in a non-cognizable case must not be instituted without the previous sanction of the Head of the circle even though the evidence appears sufficient to secure conviction in a court of law. However, in special circumstances, for instance, if delay is likely to result in the escape of the accused, the sanction of the Head of the circle may be anticipated, but in such cases, the action taken should be reported by telegraph to the head of the circle. If the case has already been placed in the hands of the police for investigation, the institution of criminal proceedings must be determined mainly by the police report, but before proceedings are actually commenced in the magistrate's court the officer concerned should submit a report to the head of the circle embodying the view of the case taken by the police. (R 133 Vol-1)
10. CONDUCT OF CRIMINAL PROSECUTIONS
An officer on receiving the orders of the Head of the Circle to prosecute in a non-cognizable case, should at once prefer a written complaint to the nearest Magistrate empowered to take cognizance of the case. He should also request permission, under section 495 of the Cr P.C. to prosecute the case himself. (R 135 Vol-11)
11. FIRST INFORMATION REPORT (FIR)
First information report lodged with the police should contain only essential information like the place of the occurrence the date or period of occurrence, how and what amount has been deflected or what property has been misappropriated, the names of the accused/suspected persons and a gist of the case.
(DGP & T No. 15-11-72-Inv dated 25-7-72)
(2) Every information relating to the communication of a cognizable offence if made orally to an officer incharge of a police station shall be reduced to writing by him or under his direction and be read over to the informant and shall be signed by the person giving it.
(3) A copy of the FIR recorded under sub-section (1) shall be given to the informant free of cost.
(4) Any person aggrieved by reference on the part of an officer incharge of a police station to record the information may send the substance in writing and by post to Supdt. of Police concerned for necessary action. (Extract of Section 154 Cr P.C.)
12. PRODUCTION OF DOCUMENTS TO POLICE/SEIZURE OF DOCUMENTS THEREOF ETC. IN COURSE OF INVESTIGATION
(a) (1) Records of Post Office or Mail office should be produced and information available in them should be given on the written order of any police officer who is making the investigation in a cognizable case under Cr. PC or any excise officer empowered by a local Govt. or Administration to investigate. Only those entries in the records should be disclosed which relate to the person or persons charged with the offence under investigation. In any other case the official in charge of the office should refer for orders, to the Head of the Circle, who will decide whether or not the information asked for should be withheld under section 124 of Indian Evidence Act. (R-152 of Vol-V)
(2) The Post Office does not authorize to hand over the record to police unless an order under section 95 of Cr PC is obtained by police officer from the District Magistrate, High court or Sessions Magistrate.
(3) The I.G. (Special Estt.) and his staff are authorized by law to inspect all official and secret records during a preliminary enquiry and also at subsequent stages. All records required by them for the purpose of investigation for production in court except those in the custody of officer should be made available, to them (Note 1 & 2 below Rule 152 of Vol. V)
(4) So far as handing over to the police of audited documents in possession of Audit office is concerned, these could be handed over to the police authority only on receipt of special requisition to this effect by the AG P&T through the I.G. Police concerned. However audited documents in the custody of the SBCO required by SPE authority may be handed over to them under authorization by the PMG concerned.
(Min of HA Memo No. 47/5/55-Police (1) dtd. 15-7-55)
(5) Any CPM or High court may under section 95 of Cr. P.C. require the PO to deliver a letter, PC, news paper. Book or pattern packet, parcel telegram or Money order in its custody to such person or such Magistrate or court pending the issue of order for handing over by such magistrate or court and any Magistrate or commissioner of police or Supdt. of Police may require the Post Office to search for and detain such postal article. (Sec. 94 & 95 of Cr. PC.)
(b) PMs and SPMs are authorised to furnish information to Income Tax/Sale Tax Officers.
Postmasters Sub-Postmasters are authorized to furnish information when asked for in writing by income tax officer/sales tax officer as bylaw they have been vested with powers of the civil court. The Postmasters/SPMs are also authorized to allow such officers to inspect money order, Books and also records relating to VP insured and parcel mail articles and to collect information in connection with assessment of income tax or sale tax etc. [Expl No. 4 below Rule 17 of Vol. Vl-part-1]
DEPARTMENTAL ENQUIRIES AND INVESTIGATIONS
13. Deficiency in the cash or stamp balance
If a supervising officer finds a deficiency in the cash or stamp balance of a Post Office or record office, the Postmaster or Treasurer or both in the case of Post Offices or the Record clerk in the case of Record offices should be called upon to produce the money or stamps, if the official or officials cannot do so and are unable to give satisfactory explanation, an inventory of the cash and stamps actually found should be drawn up and got signed by two independent witnesses and action should be taken as prescribed in the rules on the subject of criminal offences in Chapter-IV P & T Manual Vol. II.
(Rule - 217 P & T Manual Vol. V).
14. Deficiency in cash and stamp balance in the extra-departmental Sub or Branch Post Office
All extra-departmental Sub and Branch Postmasters, whether offices are provided with iron safes or not, are required to make their own arrangements for the safe custody of cash, valuables on their own responsibility.
In case of an extra departmental Sub or Branch Office, when a deficiency in cash and stamp balance is noticed by a Supervising Officer, time should be given to the extra departmental agent to send for the cash, stamps, etc. and no charge of fraud should be made against him, unless he is unable to produce the full balance shown by the accounts within the time required for going to and coming back from the place where the cash is kept for safe custody. If any unreasonable delay occurs, the Supervising Officer should make local enquiries and if he has good reason to suspect dishonesty, he should proceed in accordance with the instructions given in the above rule.
(Rule—217 Note Below 1 & 2 of P & T Manual Vol. V).
15.REQUISITION OF AUDITED DOCUMENTS BY THE DEPARTMENTAL OFFICERS
Inspectors of Post Offices and postmasters should not send application for the return of void MOs direct to Audit, but only through supdt of POs or 1st class postmaster concerned. Inspectors of post offices, Postmasters and SPMs in LSG may call for paid MOs or IPOs from the Audit office direct for purpose of enquiry or reference.
Inspectors of Post Offices and Postmasters are not authorized to call for discharged postal certificates or SB-7 in respect of withdrawals. It should be requisitioned through the Supdt. of post offices or 1st class Postmaster. (Rule 220/221 of P&T Man Vol-V)
16. FORGED, COUNTERFEIT AND DEFACED POSTAGE STAMPS, SILVER COINS AND CURRENCY NOTES:
If a previously used postage stamp, from which, however no attempt has been made to remove the marks of obliteration, is detected on an article already posted or if a 'service' stamp from which no attempt has been made to remove the letters denoting service is detected on a private article posted, the stamp should be ignored. In either case the article should be charged with the postage to which it thus becomes liable and should then be forwarded to destination with a remark on it stating the reasons for the charge a note of the occurrence being made in the error book in the case of post office or in the note book in the case of RMS sections and mail offices. (R-387 Vol-II)
When any stamp of the kind referred to in the above para/rule is detected on a postal article passing through the post either in the office of posting or in the office of delivery or on a postal article, documents at a post office, the following action should be taken:
(1) If detected in a post office situated at the head quarters of a district, the officer in charge of the office should detain the article and at once lay information before the District Magistrate under section 190(1) (c) of the Cr.P.C. as to the offence which has been committed and ask him to take steps to obtain possession of the article, documents under section 95 of the Cr.PC. If the Magistrate of the Dist. is away from the station, intimation may be given to any Magistrate in whose jurisdiction the offence is detected. It should be noted that the article is not to be delivered up to the Magistrate or to the Supdt of Police but merely information is to be given regarding it with a view to the issue of necessary order by the Magistrate. Pending the receipt of the orders applied for the article may be provisionally detained and full particulars of the case should be reported at once to the Head of the circle or to the Supdt. of POs to whom the office is immediately subordinate who will such steps as the circumstances may require.
(2) If detected in a Post Office not situated at the headquarters of the district or in a Mail Office, the officer incharge of the office should send the article/documents together with a report of the circumstances of the case in a service registered cover to the officer in charge of the post office as the case may be situated at the headquarters of the district and at the same time forward a copy of the report to the Head of the Circle or to the Superintendent, to whom he is immediately subordinate.
(3) If the article/document to which the suspicious stamp is affixed was handed in at a post office or mail office, the name and address of the person who presented it should be ascertained and he should be informed that it will be detained for enquiry. (R 390 Vol-II)
(4) If a suspicious stamp is detected on any article or document received in a post office which is not the office of posting or destination but an intermediate office, or received in a section or a mail office, the article should be forwarded, enclosed in an envelop to the Postmaster of the office of the destination irrespective of whether either the detecting office or the office of destination is or is not situated at the headquarters of district. (R 391 Vol-11)
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