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Charge sheet without preliminary inquiry and show cause notice is illegal

Shivendra Pratap Singh

Advocate

08/06/2021/ 11:03:29 PM

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Question: I have been working in the Postal Department since 2011. My past service record is very neat and clean in all respects. My senior officer did not sanction medical leave and stopped my salary for two months. He is also a disciplinary authority and he issued a charge sheet without preliminary inquiry and a show cause notice. I am facing mental harassment by a government officer who is very rude and treats his subordinate officer as a slave.  

One day when my illness became worse (there is some problem in my cervical spine and that is why I am suffering from cervical spondylitis), I applied for leave from home as my condition didn’t allow me to go to the office. My employer asked me to submit medical documents and I submitted the same, but he didn’t grant my leave and asked to join the office. Otherwise disciplinary action may be initiated against me. He also sent my medical documents to the CMO office for a second opinion.

He sent me three back to back notices directing me to join the office, but I didn’t join due to my health. I am assured that I will join the office as soon as I become fit. In spite of this, he served a charge sheet to me for submitting representation within 10 days. More importantly the opinion of the CMO is still pending.

I want to ask if my department gives me a punishment order or any other punishment like transfer etc. Can I file a court case against the department? Besides, can an OA or WP can be filed against them for not granting my leave and for holding my salary in spite of submission of medical documents?

Question from: Uttar Pradesh

Your claim for extension of medical leave is genuine

You have been on medical leave. You have submitted all medical reports to your senior officer for extension of the medical leave. The concerned officer sent those medical documents to the Chief Medical Officer (CMO) for obtaining his second opinion about your illness. Actually, he wanted to check the genuineness of your medical documents from the CMO. 

The direction of your senior officer to resume your job is baseless. He has no evidence to prove that you have made a false medical claim. Opinion of the CMO regarding your medical documents is still pending. He sent three notices without checking the veracity of those medical documents. Hence, your request for extension of medical leave is genuine.

Charge sheet without preliminary inquiry is illegal

A charge sheet contains allegations which tend to set out the nature of accusation. There must be some evidence in support of the accusation. Those evidence should prima facie prove that the delinquent employee has committed any negligence in performance of official duty or breach or conduct etc. In nutshell a charge sheet should briefly disclose the misconduct of an employee and prima facie evidence thereof.  

The disciplinary authority who takes cognisance of misconduct issues a charge sheet. He is bound by law to follow the principle of natural justice and mandatory safeguard of Article 311 of the Constitution of India while issuing a charge sheet. Hence issuing charge sheet without holding a preliminary inquiry or show cause notice is illegal.

“No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity….” 

Article 311(2) of the Constitution of India

“Informed the charge” denotes that the employee should know what is the charge against him and the basis of those charges. These two things are missing in the charge sheet sent to you by the disciplinary authority. There is no material in support of charge and also there is no finding that your medical documents are false.  

There is no preliminary inquiry & show cause notice

The disciplinary authority must conduct a preliminary investigation/inquiry before issuing a charge sheet. In the preliminary investigation he issues a show cause notice to the delinquent employee to submit his clarification about the allegation made in the show cause notice. The delinquent employee has to submit his clarification within the stipulated time mentioned in that notice. 

If the disciplinary authority finds that clarification is unsatisfactory then he issues a charge sheet. He issued a charge sheet without complying with the statutory procedure of law. Therefore, the charge sheet is void, illegal and has no legal force. You should challenge the charge sheet. 

File a OA before the Central Administrative Tribunal (CAT)

You should file an original application before the CAT for quashing the charge sheet issued to you in violation of statutory provisions of law. The CAT will quash the charge sheet on these grounds:

  1. The disciplinary authority did not conduct a preliminary investigation or enquiry. Charge sheet without conducting a preliminary inquiry could not enable him to reach at the conclusion that the applicant is prima facie guilty of misconduct or he has breached the service rule.  
  2. Applicant did not receive any show cause notice from the disciplinary authority. The fact about issuing show cause notice and receiving reply from the charged officer (applicant) is not mentioned in the charge sheet. It proves that the applicant had no opportunity to clarify his stand against the allegation. This is a breach of the principle of natural justice i.e. no one can be condemned unheard. 
  3. There is no evidence on record to prove that the applicant had no justifiable reason to be on medical leave. The opinion of the Chief Medical Officer is still pending. The CMO was directed by the disciplinary authority to submit his opinion about the claim of medical leave and genuineness of medical documents. Without receiving a finding of the medical expert (CMO) the disciplinary authority has reached at the conclusion that the applicant has committed misconduct. 
  4. The charge sheet is baseless, frivolous and issued by the disciplinary authority in violation of principles embodied in Article 311 of the Constitution of India.
shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate

Practising lawyer in the High Court Lucknow. You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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