Section 9 in Assam Service (Discipline and Appeal) Rules, 1964
9. Procedure for imposing penalties.
(1)Without prejudice to the provisions of he Public Servant; (Inquiry) Act, 1850, no order imposing on a Government servant any of the penalties specified in rule 7 shall be passed except after an inquiry, held as far as may be, in the manner hereinafter provided.(2)The Disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegation on which they are based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement of his defence and also to state whether he desires to be heard in person.[(2.1) At the time of delivering the charges, the Disciplinary Authority shall invariably furnish to the Government servant a list of documents and witnesses by which each article of charges is proposed to be sustained.] [Inserted vide Notificaton No. ABP/295/75/70, Dated 17.02.1978]Explanation. - In this sub-rule and in sub-rule (3), the expression "the Disciplinary Authority" shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in rule 7.(3)The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify, provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto:Provided that when a Government servant is permitted to inspect and take extracts from official records due case shall be taken against tampering removal or destruction of records.(4)On receipt of the written statement of defence, or if no such statement is received within the time specified, the Disciplinary Authority may itself inquiry into such of the charge as are not admitted or, if it considers it necessary so to do, appoint for the purpose a Board of inquiry or an Inquiring Officer.(5)The Disciplinary Authority may nominate any person to present the case in support of the charges before the Authority inquiring into the charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any other Government servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority as aforesaid is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case so permits.(6)The Inquiring Authority shall, in the course of the inquiry consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitle to cross-examine witnesses examined in support of the charges and to give evidence in person, and to adduce documentary and oral evidence in his defence. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witnesses examined in his defence. If the Inquiring Authority declines to examine any witness or to admit any document in evidence on the ground that his evidence or such document is not relevant or material, it shall record its reasons in writing.(7)At the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons thereof.[Explanations. - If in the opinion of the enquiring authority the proceedings of the enquiry establish any article of charge different from the original article of the charge it may record it findings on such article of charge.Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has a reasonable opportunity of defending himself against such article of charge.] [Inserted vide Amendment No. ABP./189/77/3, dated 10/07/1977](8)The record of the inquiry shall include-(i)the charges framed against the Government servant and the statement of allegations furnished to him under sub-rule (2);(ii)His written statement of defence, if any;(iii)The oral evidence taken in the course of the inquiry;(iv)The documentary evidence considered in the course of the inquiry;(v)The orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and(vi)A report setting out the findings on each charge and the reasons therefore.(9)The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its finding on each charge.(10)[ Major Penalties. - If the Disciplinary Authority having regard to its findings on the charges and on the basis of evidence adduced during the inquiry, is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of rule 7 should be imposed on the Government servant it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:Provided that in every case where it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary authority to the Commission for its advice and such advice shall be taken into consideration before making an order imposing any such penalty on the Government servant.] [Sustituted vide notificaton No. ABP. 1/11/80/1, dated 28/03/1980](11)Minor Penalties. - If the Disciplinary Authority, having regard to its findings on the charges, is of the opinion that any of the penalties specified in clause (i) to (iii) of Rule 7 should be imposed, it shall, pass appropriate orders and in every case in which it is necessary to consult the Commission, shall do so, after consulting the Commission.(12)(a)Notwithstanding anything contained in this rule, it shall not be necessary to follow the procedure laid down in the preceding sub-rules in cases where it appears to the authority competent to impose the penalty at the initial stage of the proceedings that the penalty of censure would be adequate, but if at any later stage it is proposed to impose any other penalty specified in Rule 7, the procedure laid down in the said rules shall be followed.(b)The order imposing the penalty of censure shall however be passed, except after-(i)The Government servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make; and(ii)Such representation, if any, is taken into consideration by the Disciplinary Authority.
