Amendment to M.C.S.(conduct) Rules 1979

Government of Maharashtra in G.A.D. has issued a notification dated 24 th Feb 2014 amending Rule 3 of M.C.S.(Conduct ) Rules 1979. By the said amendment the following explanation as been added in existing sub- rule (1) of Rule 3,

“Explanation :- A Government servant who habitually fails to perform,the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of clause (ii) of sub-rule (1).”

Similarly by the said amendment , the following sub Rule(3) has been substituted for the existing sub- rule (3) :

(3) (i) No Government servant shall, in the performance of his official duties, or in the exercise of powers      conferred on him, act otherwise than in his own best judgment to be true and correct except when he is  acting under the direction of his official superior;

(ii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;

(iii) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible and in such case, it shall be the duty of the official superior to confirm the direction in writing.”

The above mentioned notification (amendment ) is available on this blog in the list under caption, "RECENT &IMPORTANT". The same can be downloaded, if required.

Booklet titled "वित्तीय अधिकार नियम पुस्तिका "

The Finanace Department has prepared a booklet titled " वित्तीय अधिकार नियम पुस्तिका १९७९ " and has  published the same in 2009. The said booklet lists out various  powers given to Administrative Departents, Head of the Department, Regional Heads, Head of office under Bombay finanacial rules 1959, Maharashtra Contingent Expenditure Rules 1965, Miscellaneous items of expenditure, Maharashtra Budget manual . Maharashtra Public Works Manual etc. 

The said booklet is very useful and helpful  since it enables  the officers to know what are  the specific powers delegated to them for incurring expenditure on various items of expenditure. The said booklet is available on this blog, in the list under caption of "Recent & Important ".

 All concerned are therefore advised to get  this booklet downloaded  for their office use.

Recovery of wrongful/excess payments to Government servants

The departmental authorities are always faced with the difficulty as to whether the excess payments made to the employees can be recovered or not.The Governemnt of India considering recent judgements of the Supreme Court have recently issued office Memorandum dated 6 th Feb 2014 providing detailed instructions as to what action should be taken to recover wrongful or excess payments made to Government Servants. The said O.M. is reproduced below,

           Recovery of wrongful/excess payments made to Government servants – Dopt Orders

F.No.18/26/2011-Estt (Pay-I) 

Government of India 

Ministry of Personnel, PG and Pension 

Department of Personnel and Training

North Block, New Delhi, 

Dated the 6th February, 2014

OFFICE MEMORANDUM

Subject: Recovery of wrongful/excess payments made to Government servants.

The undersigned is directed to say that the issue of recovery of wrongful/excess payments made to Government servants has been examined in consultation with the Department of Expenditure and the Department of Legal Affairs in the light of the recent judgement of the Hon’ble Supreme Court in Chandi Prasad Uniyal And On vs State Of Uttarakhand And Ors, 2012 AIR SCW 4742, (2012) 8 ‘SCC 417, decided on 17th August, 2012. The Hon’ble Court has observed as under:

15. We are not convinced that this Court in various judgments referred to herein before has laid down any proposition of law that only if the State or its officials establish that there was misrepresentation or fraud on the part of the recipients of the excess pay, then only the amount paid could be recovered. On the other hand, most of the cases referred to herein before turned on the peculiar facts and circumstances of those cases either because the recipients had retired or on the verge of retirement or were occupying lower posts in the administrative hierarchy. 

16. We are concerned with the excess payment of public money which is often described as "tax payers money" which belongs neither to the officers who have effected over-payment nor that of the recipients. We fail to see why the concept of fraud or misrepresentation is being brought in such situations. Question to be asked is whether excess money has been paid or not may be due to a bona fide mistake. Possibly, effecting excess payment of public money by Government officers may be due to various reasons like negligence, carelessness, collusion, favouritism etc. because money in such situation does not belong to the payer or the payee. Situations may also arise where both the payer and the payee are at fault, then the mistake is mutual. Payments are being effected in many situations without any authority of law and payments have been receiyed by the recipients also without any authority of law. Any amount paid/received without authority of law can always be recovered barring few exceptions of extreme hardships but not as a matter of right, in such situations law implies an obligation on the payee to repay the money, otherwise it would amount to unjust enrichment.

2. Hon’ble Supreme Court also distinguished the cases like Shyam Babu Verma v UOI, 1994 SCR (1) 700, 1994 SCC (2) 52, Syed Abdul Qadir and Ors. v. State of Bihar and Ors,(2009) 3 SCC 475, Sahib Ram v. State of Haryana,1995 Supp (1) SCC 18 etc., where it had not allowed recovery of excess payment in view of the peculiar facts and circumstances of those cases so as to avoid extreme hardship to the concerned employees, for example, where the employees concerned were mostly junior employees, or they had retired or were on verge of retirement, the employees were not at fault, and recovery which was ordered after a gap of many years would have caused extreme hardship.

3. In view of the law declared by Courts and recently reiterated by the Hon’ble Supreme Court in the above cited case, Chandi Prasad Uniyal And Ors vs State Of Uttarakhand And Ors, 2012 AIR SCW 4742, (2012) 8 SCC 417, the Ministries/Departments are advised to deal with the issue of wrongful/excess payments as follows:

i. In all cases where the excess payments on account of wrong pay fixation, grant of scale without due approvals, promotions without following the procedure, or in excess of entitlements etc come to notice, immediate corrective action must be taken.

ii. In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment, and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee.

iii. Whenever any excess payment has been made on account of fraud, misrepresentation, collusion, favouritism, negligence or, carelessness, etc., roles of those responsible for over payments in such cases, and the employees who benefited from such actions should be identified, and departmental/criminal action should be considered in appropriate cases.

iv. Recovery should be made in all cases of overpayment barring few exceptions of extreme hardships. No waiver of recovery may be allowed without the approval of Department of Expenditure.

v. While ordering recovery, all the circumstances of the case should be taken into account. In appropriate cases, the concerned employee may be allowed to refund the money in suitable instalments with the approval of Secretary in the Ministry, in consultation with the FA.

vi. Wherever the relevant rules provide for payment of interest on amounts retained by the employee beyond the stipulated period etc as in the case of TA, interest would continue to be recovered from the employee as heretofore.

sd/- 

(Mukesh Chaturvedi) 

Deputy Secretary to the Government of India

Source: www.persmin.gov.in 

Dismissed employee & continuance of other disciplinary proceedings

The issue as regards continuaunce of other disciplinary proceedings against a dismissed employee was recently considered by the Supreme Court in the Civil Appeal filed by the State Governemnt of Maharashtra  and decided on 29-1-2014, against the order passed by the High court restraining the State Government to continue the disciplinary proceedings against an I.A.S. officer who was already dismissed as a result of  disciplinary proceedings.The order of dismssal has been challenged by the emplyee in C.A.T.
The Supreme Court held that since the employee has already been dismissed, the employer & employee relationship has come to an end and therefore the second departmental proceedings cannot be continued. The Court however  observed that in case the order of dismissal  is set aside by the Tribunal or High Court, the employer- employee relation will get restored  and it will be permissible for the State Government to proceed with the second disciplinary  proceedings.. However the Court did not modify the order of the High Court , considering the fact that the charge sheet in the second disciplinary proceedings is 25 years old and the reopening of the proceedings will not serve any purpose.

The lesson to learn from the said judgement is, as under :
" The disciplinary proceedings cannot be continued against a dismissed employee and therefore be kept in abeyance. If the order of dismissal is set aside, the relationship of employer- employee gets restored and the disciplinary proceedings  be revived and finalized as per law."

The above said judement is available on this blog at S.No.25  in the list under the title " Disciplinary Proceedings- Important judgemnts"  Those interested can get it downloaded.

Promotion during pendency of departmental / criminal proceedings

The authorities are always faced with a question whether an employee against whom departmental / criminal proceedings are pending but  who is found to be fit for promotion  by the Departmental promotion committee, should be given Adhoc promotion or not. The State Government in G.A.D.  has issued a circular (English) dated 2-4-1976 on the subject of "Promotion- Procedure to be followed in the cases of presons whose conduct is under investigation or against whom departmental inquiries are pending. The Government has also issued G.R. dated 22-4-1996 stating as to how such  promotions given are to be regulated.( Both the Circular and the G.R. is available on this blog) Apart from this circular and the G.R. no guidelines appear to have been issued by the Government. It is therfore observed that the Adhoc promotions are given inspite of the fact that there is a departmental or Criminal proceedigs  is pending against the employee for the  serious charges leveled agaist him.Similarly it may be possible that because of absence of  clear guidelines adhoc promotion might not be given in deserving cases.

2. In case of Central Government employees, the D.P.C.considers the case of employee  for promotion on the basis of his C.Rs., even if departmental/Criminal proceedings are pending against him but the decision as regards his fitness for promotion is kept in a sealed cover. This procedure is known as Sealed Cover procedure. This procedure is not followed in State Government.

3. In case of central Government employees, if the departmental inquiry / criminal investigation is not completed in 2 years, the adhoc promotion is given considering following factors,

    1. Whether the promotion will be against public interest ?
   
    2.  Whether the charges are grave enough to warrant continued           denial of promotion ?

    3.  Whether there is no likelyhood of the case coming to a                  conclusion in near future ?

    4.   Whether the delay in finalization of criminal / departmental             proceedings is not directly or  indirectly attributable to the             employee concerned ?

    5,   Whether there is any likelyhood of misuse of official                     position, which may adversely affect the conduct of                       departmental / criminal proceedings ?

4    In case of State Government employees also, it will be                 appropriate that the above mentioned factors   are considerd           while  considering adhoc promotion to employees against whom     the departmental /  criminal proceedings are pending.If this is         done ,the adhoc promotion will  be given to the deserving               employees.

5.  The Supreme Court has considered the issue in question in its       Land mark judgement in case of  Union  of India v/s                      K.V.Jankiraman, 1991 AIR 2010. The said judgment is available    on this blig at  serial  number 24 in the list of "Important                Judgements" under heading of " Disciplinary Proceedings -            Judgements ". It is suggested the officers and other employees      may get the same downloaded for  their study. The court has          held  that the sealed cover procedure is to be adopted only if the    regular  charge sheet is issued .and not in the cases where  only      preliminary investigations are under way.