- Suspension: salient features?
- Suspending AIS officers
- Suspending Officers on deputation
- Suspension: When?
- Must be suspended?
- Arrest and Automatic suspension
- Salary during Suspension
- Part time job during Suspension
- Resignation during Suspension?
- Posting after reinstatement?
- Promotion during Suspension: Sealed Cover Procedure
- Death during suspension?
- Casestudy: Night at Museum Custody
- CaseStudy: Khakhi night halt
- Casestudy: When Encounter specialist resigns
so far in the vigilance/ethics series we’ve seen
- Conduct rules
Now it’s time to suspend crooked government employees.
What is suspension?
An order that debars the public servant from using his powers and doing his duties.
- So he cannot temper with records, evidences or witnesses – directly / indirectly using his official position.
- Witnesses may hesitate to depose/testify against the Government servant as long as he is in office.
- To sustain confidence of people in the system, until inquiry is finished.
- Suspended employee retains the master-servant relationship with government.
- Meaning, he is still subject to all the conduct rules applicable to Government servants. e.g. cannot participate in political activities, cannot lend money at interest, cannot speculate in share market etc.
- He is still liable for any new misconduct during the period of suspension.
- Suspension itself is not penalty. It is only an ‘aid’ to facilitate the inquiry. Therefore Art.311 doesn’t apply. (=he is not entitled to defend himself, cross examine witnesses etc.)
- Employee can be suspended even if he is on leave/ training / absconding.
- Retrospective order of suspension is illegal. e.g. on 12th Nov. 2013 Boss cannot write an order that “Mr. XYZ is suspended with effect from 11th Nov 2013.”
- Retrospective reinstatement is also illegal. e.g. on 12th Nov 2013. Boss cannot write an order to reinstate a suspended officer with effect from 11th Nov.2013.
- According to All India Services rules, the State government can suspend a member of All India services (IAS, IPS, IFoS) serving under the state government.
- However, such suspension will become invalid IF the state government doesn’t start disciplinary proceedings against that officer within 90 days. (although in rare cases, this limitation can be ignored IF union government permits.)
- For example- An IFoS officer (belonging to Environment ministry) is deputed on some xyz post in Tribal Ministry. Can Tribal ministry suspend him? Yes they can.
- But the borrowing authority (Tribal ministry) have to inform the lending authority (Environment ministry) about the circumstances that led to suspension.
- In the exam, you might face a tempting Case study where you want to write ‘suspend xyz officer’. But “suspension” is not the answer in every case study.
- Suspension causes a lasting damage to Government servant’s reputation even if he is exonerated or is ultimately found guilty of only a minor misconduct. This damages staff morale.
- Therefore decision should be taken after taking all factors into account with care and caution.
- Usually when a complaint is made against any officer, standard operating procedure is:
|Administrative angle=>||Preliminary enquiry=>departmental proceedings =>punishment.|
|vigilance/criminal angle=>||Discreet/regular enquiry=>FIR=>investigation=>court proceedings =>punishment.|
The decision to suspend usually comes after the prelim/discreet/regular enquiry is finished.
Guiding Principle: ‘public interest vs. cost to exchequer’. Because
- suspended employee gets salary without doing any work=burden on public exchequer. And
- suspended employee=less manpower in the office= Workload increases.
Therefore, in minor administrative misconducts, don’t suspend. Just finish inquiry impose any minor penalty on him and finish the case. For example,
- If an employee is caught filing bogus LTC claim.
- Brought fake certificate from doctor to get medical leave.
- Occasionally came late to office/ left the office early.
- Damaged some office equipment by mistake.
In following situation, he must be suspended:
- serious negligence/dereliction of duty
- Refuses to obey written orders of superior officer.
- He is facing Criminal investigation. Then he should be suspended even if he is released on bail.
- prima facie there is sufficient material to give him a major penalty (viz. dismiss, remove, rank-reduction)
- If State government asks an All India services officer (IAS, IPS, IFoS) to go on leave but he refuses.
- caught red pink handed in phenolphthalein test during ACB/CBI trap for bribes.
- In all Public scandals. Must be suspended to restore public faith in system.
- When preliminary (informal) enquiry reveals some wrongdoing. And if he continues in service, he is
- likely to influence investigation e.g. temping with witness/documents/evidences
- likely to subvert official discipline
- likely to bring down staff morale
- Any conduct involving moral turpitude (lewdness, sexual harassment, dowry etc.)
- Misuse of official powers for personal gains
- Misappropriation, embezzling Government money; his negligence caused serious loss to public exchequer
- has disproportionate assets.
- Deserted his post during crisis period.
- endangering national / state security
- If a government employee has spent more than 48 hours in custody- he is automatically “deemded” suspended. (Even if his boss don’t know about that he is arrested.)
- if he is arrested in dowry death case- must be suspended, irrespective of how many hours spent in custody.
- If a government servant is arrested, Police has to inform his superior.
- Arrested employee himself too has the duty to inform his superior as soon as possible. If he hides details of his arrest, he will be subjected to a separate disciplinary proceedings (and punishment). And he cannot claim double jeopardy.
- Suspended employee doesn’t get full salary but gets subsistence allowance.
- Subsistence allowance is meant for the “subsistence” of him and his family. Why?
- Just because he is not allowed perform job, his family should not be made to suffer.
- Out of desperation for money, he might involve in some other mischief.
- Suspension itself is not punishment. But a tool to help in investigation.
- Subsistence allowance= approximately half the average salary. (Also get Dearness Allowance (DA), compensatory (city) allowance, house rent allowance.)
- Government can decrease this allowance: IF Suspension prolongs because of officer’s fault. e.g. he adopts dilatory tactics, doesn’t cooperate with investigation etc.
- Government can increase this allowance if suspension prolongs without officer’s fault. e.g. departmental officials are not finishing inquiry quickly.
- Subsistence allowance falls under taxable income. Meaning suspended employee has to pay income tax (if he falls under tax-brackets)
- If he continues to live in government quarters then he has to pay house rent and allied charges of electricity, water, telephone bill etc.
- From his subsistence allowance, government cannot deduct GPF/provident fund contribution, postal insurance premium etc. unless he agrees.
- Suspended employee can take up other employment, business, profession during suspension but ONLY with permission from government
- But If he start such private job/business, then government will stop paying him subsistence allowance, DA, HRA.
- If he start such private job/business without government’s permission => he can face separate punishment under conduct rules. And cannot claim double jeopardy. (i.e. he cannot make excuse that I’m punished twice for same offense.)
What if suspended officer gives his resignation before departmental inquiry / court case is completed?
DoPT guidelines for all India services officers (IAS, IPS, IFoS):= Normally, such officers are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation of an officer under suspension.
Resignation should be accepted IF
- Inquiry is taking forever to finish. It would cheaper on public exchequer to accept resignation.
- Evidences are not strong enough to dismiss / remove that suspended officer if inquiry/criminal case continues.
- Alleged offence does not involve moral turpitude. (Lewdness in office, sexual harassment, rape, dowry death etc.) Ruchika Girhotra case is a prime example of moral turpitude by an IPS officer.
Corollary to that, resignation should not be accepted IF
- Inquiry is about to finish.
- Strong evidences are found- it is possible to dismiss/remove that officer when inquiry is concluded.
- Alleged offence involves moral turpitude.
Leave for employee under investigation?
Suppose, ACB/CBI is investigating the matter. Employee is not suspended but transferred to a non-focal post. In such situation, he should not be granted leave- to prevent him from tampering with investigation. (Except in rare/genuine cases e.g. medical emergency.)
After a government servant is suspended, four things can happen:
|departmental inquiry/proceeding finds him ____||consequence|
||His Game Over. No need to reinstate.|
||Suspended employee has to be reinstated.|
||officer has to be reinstated.|
||Department may reinstate him back to the job. (except during grave cases or when two years passed because he did not fully cooperate with inquiry)|
- 2006: encounter specialist Daya Nayak: got suspended for disproportionate asset.
- 2009: ACB could not unearth any evidence to prove the charges against Nayak, and thus could not file a chargesheet
- 2012: Daya Nayak reinstated back in the job.
When Suspended officer is reinstated, he is posted far off from the place where he served before suspension. Why?
- So he cannot do ‘witch-hunting’ or take revenge on any junior staff (or local public) who may have given complaint/ evidence / testimony against him during the inquiry
- Saves him from uncomfortable situation/embarrassment while dealing with same local public and colleagues.
- Saves local public from any negative vibes or fear of reprisal while re-visiting the same office.
Promotion/ Increment after reinstatement?
If suspended officer is reinstated, it means two things could have happened:
|found him “not guilty”||
|found him guilty, gave ‘minor punishment’||
- What if a government servant is suspended but the ‘promotion round’ comes for his batchmates?
- In such case, “Sealed Cover” procedure is adopted.
- Government servants in respect of whom prosecution for a criminal charge is pending.
- Departmental Promotion Committee (DPC) will assess his suitability for promotion without taking into consideration the disciplinary case/ criminal prosecution pending.
- Then, DPC will write its recommendation in a ‘sealed cover’. (whether to promote him or not?)
- This sealed cover will be the disciplinary case/criminal case is over.
- if he is completely exonerated=> will get promotion, if sealed cover says yes. This promotion will be with retrospective effect. Meaning if others had got promotion after him, during his suspension – he’ll still be considered their senior and get salary accordingly.
- but if he is found guilty in disciplinary case/ criminal case, the sealed cover’s recommendation will be ignored.
- If suspended officer dies before the departmental inquiry / court case is concluded then the period between the date of suspension and the date of death shall be treated as “duty”.
- And his family is paid full pay and allowances for the said “duty” period.
anyways, enough theory, let’s check some case studies.
DevAnand is a section officer in A’bad district collector’s office. In December he goes to Goa to celebrate New Year with his college batchmate Prem Chopra. Both go to a bar, Prem Chopra gets drunk and start argument with some local youth, leads to rucksack and fight. Dev tries to calm situation, but police arrives and arrests them both. Next morning Dev released on bail, goes back to A’bad and reports on duty. His boss Collector Pran asks “why your phone was unreachable?” Dev lies, “Sir I had gone to my ancestral village and phone had stopped working.”
Dev thinks in his head, “I’m fully justified in lying to my boss because:
- I was wrongly arrested without any fault.
- If I tell my boss I was arrested. It’ll negatively affect my promotion prospects and reputation among colleagues.
- It was a small matter happened in Goa, nothing will come in local Gujarati newspapers and nobody needs to know otherwise.
Has Dev made the right decision?
- If a government servant is arrested, police has to send details to his senior officer. So sooner or later, Pran is going to receive an official letter from Goa police anyways. Hence the shelf life of Dev’s lie=very low.
- After that, whatever Dev says in his defense that Prem Chopra started fight, I had done nothing etc. = Pran unlikely to believe him.
- Dev may have been arrested without any of his fault, but if he is subjected to a disciplinary action for hiding facts about his arrest=that will be entirely his fault.
Surat Police Commissioner has sent a Sub-inspector (SI) to bring an accused from Jaipur Police’s custody in a high profile case. While returning from Jaipur with the accused, this SI spends night at a private hotel in Ahmedabad, rather than directly taking him to Surat.
|Commissioner||Why are you late?|
|SI||Because I made halt in A’bad.|
|Commissioner||Why did you make halt in A’bad?|
|SI||Because I couldn’t catch direct train from Jaipur to Surat, so took another train to A’bad. and I had got permission from ACP for doing so.|
|ACP||Yes, I gave permission because he said he couldnot catch the direct train.|
In the meantime, local media sensationalizes the news- how the accused was allowed meet his girlfriend in the hotel and may have destroyed some evidence hidden in A’bad with connivance of Sub Inspector etc.
Should Commissioner accept the explanations given by his subordinates and forget this entire episode?
Actually this is based on a real case and commissioner had suspended the Sub inspector and removed ACP from the investigation. What we can derive is:
- High profile case/ public scandal. Need to suspend any negligent official to restore public’s faith in system. Therefore Sub Inspector has to be suspended till further inquiry of whether he deliberately made delay to stay in A’bad.
- ACP is removed from the investigation because may be he doesn’t commend the fear / authority among his sub inspectors and hence they’re lax/negligent in their work and even dare to misguide him! Better to hand over investigation to another ACP.
A suspended IPS officer has spent last seven years in jail, for involvement in alleged fake encounter cases. He submits resignation accusing the State government of failing to protect upright police officers like him, who fought against “Pakistan-inspired terrorism”. Should the State Government accept his resignation and forward it to Union home ministry?
- No. Because he is accused in Grave / heinous crime. If the fake encounter cases are proved, he faces dismissal (=not eligible for future employment under government + no pension / gratuity)
- therefore, he should not be allowed to get away easily with resignation.
- besides, DoPT guidelines for all india service officers= Normally, as members of service are placed under suspension only in cases of grave delinquency, it would not be correct to accept a resignation of a member of service under suspension.