RBE No. 05/1986 D&A Rules – Need for Issuing Speaking Orders

No.E(D&A)86 RG6-1, date 20.01.1986

 

Sub: Disciplinary cases – Need for issuing speaking orders by competent authority.

A copy of OM No.134/12/85-AVD.1, dated 05.11.1985, received from the Department of Personnel and Ttraining is sent herewith for guidance. A copy of the Department of Personnel earlier OM No.134/12/85-AVD.1, dated 13.07.1981 referred to in para 1 and 2 of the OM ibid is also sent herewith.

Copy of DOP&Trg. OM No.134/12/85-AVD.1, dated 05.11.1985.
OFFICE MEMORANDUM

Sub: Disciplinary cases – Need for issuing a speaking orders by competent authorities – Reiteration of instructions regarding.

1. They understand is directed to refer to this Departments OM No.134/1/85-AVD.I, dated 13.07.1981 (copy enclosed for ready reference) and to state that in spite of the instructions contained therein, it has come to notice that speaking orders are not issued by passing final orders in disciplinary cases.

It is an essential legal requirement that in the case of decision by quasi judicial authorities, the reasons should be recorded in support thereof.

As orders passed by disciplinary authorities are in exercise of quasi judicial powers, it is necessary that self-contained, speaking and reasoned orders should be issued while passing final orders in disciplinary cases.

2. The instructions contained in this Department’s OM dated 13.07.1981, referred to above, are accordingly reiterated and it is requested that the contents thereof may be brought to the notice of all concerned for their information and guidance.

 

Copy of DOP & Admn. Reforms OM No.134/1/81-AVD.ID, dated 13.07.1981.

Sub: Disciplinary cases – need for issuing speaking orders by competent authorities.

1. The undersigned is directed to state that as is well known and settled by courts, disciplinary proceedings against employees conducted under the provisions of CCS (CCA) Rules, 1965, or under other corresponding rules, are quasi judicial in nature and as such, it is necessary that orders in such proceedings are issued only by the competent authorities who have been specified as disciplinary/ appellate/ reviewing authorities under the relevant rules and the orders issued by such authorities should have the attributes of a judicial order.

The Supreme Court in the case of Mahavir Prasad v. State of UP (AIR 1970 SC 1302) observed that recording of reasons in support of a decision by a quashi-judicial authority is obligatory as it ensures that the basic decision is reached according to law and is not a result of caprice, whim or fancya or reached on grounds of policy or expediency. The necessity to record reasons is greater if the order is subject to appeal.

2. However, instances have come to notice of this Department where the final orders passed by the competent disciplinary/ appellate authorities do not contain the reasons on the basis whereof the decisions communicated by that order were reached.

Since, such orders may not confirm to legal requirements, they may be liable to be held invalid, if challenged in a court of law. It is, therefore, impressed upon all concerned that authorities exercising disciplinary powers should issue self-contained speaking and reasoned orders conforming to the aforesaid legal requirements.

3. Instances have also come to notice where, though the decisions in disciplinary/ Appellate cases were taken by the competent disciplinary/ appellate authorities in the files, the final orders were not issued by that authority but only by a lower authority.

As mentioned above, the disciplinary/ appellate/ reviewing authorities exercise quasi-judicial powers and as such they cannot delegate their powers to their subordinates.

It is therefore, essential that the decision taken by such authorities are communicated by the competent authority under their own signature, and the order so issued should comply with the legal requirement as indicated in the preceding paragraphs.

It is only in those cases where the President is the prescribed disciplinary/ appellate/ reviewing authority and where the Minister concerned has considered the case and given his order that an order may be authenticated by an officer, who has been authorized to authenticate orders in the name of the President.

4. The contents of this OM may kindly be brought to the notice of all concerned for their information and guidance.