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Chapter 9 Punishment and Appeal

Chapter 9 Punishment and Appeal
59. Punishment : A civil employee may be subjected to the ? department punishment as follows, if there exist appropriate and sufficient reasons:
(a) Ordinary Punishment :
(1) Censure,
(2) Withholding of promotion for up to two years or withholding of a maximum of two salary increments,
(3) Withholding of promotion for two to five years, or withholding of a maximum of two to five salary
increments,
(b) Special punishment :
(1) Removal from service, without being disqualified for government service in the future.
(2) Dismissal from service, with being disqualified for government service in the future.

60. Censure or withholding of promotion for up to two years or withholding of a maximum of two salary increments :
Punishment of censure or withholding of promotion for up to two  years or withholding of a maximum of two salary increments may be imposed on a civil employee, in any of the following circumstances:
(a) If his/her performance did not found satisfactory,
(b) If he/she fails to hand over the charges pursuant to the prevailing law,
(c) If he/she is given warning for up to two times a year under Section 55A.,
(d) If he/she violates the matters relating to conduct mentioned in this Act and the Rules framed hereunder,
(e) If he/she fails to observe any direction given by the official superior to him/her in respect of his/her frequent disregard of grievances and complaints of the stakeholders,
(f) If the office-bearer obliged to enforce, or cause to be enforced, the job description fails to do so.
• 60A.Withholding of promotion for two to five years or withholding of a maximum of two to five salary increments
or demoting to the basic scale of the post : Punishment of withholding of promotion for up to five years or withholding of a maximum of five salary increments or demoting to the basic scale of the post held by him/her may be imposed on a civil employee, in any of the following circumstances:
(a) If he/she commits breach of discipline,
(b) If he/she violates the matters relating to conduct mentioned in this Act and the Rules framed hereunder,
(c) If he/she fails to settle advances pursuant to the prevailing law,
(d) If he/she fails to observe any direction given in respect of irregularities found from management audit.
(e) If he/she frequently absent in the office without prior notice.

61. Removal or dismissal from service :

(1) A civil employee may  be removed from serve, without being disqualified for government
service in the future, in any of the following circumstances:
(a) If the civil employee fails to perform the duties or responsibilities of his/her post due to his/her
own incapacity.
(b) If he/she frequently violates the matters relating to conduct.
(c) If he/she frequently consumes alcoholic substances during the office hours.
(d) If he/she frequently commits acts of indiscipline.
(e) If he/she takes part in politics.
(f) If he/she frequently neglects the responsibilities of his/her post.
(g) If he/she absents himself/her from his/her office continuously for ninety days without having
sanction of a leave.
(2) A civil employee may be dismissed from service, with being disqualified for government service in the future, in any of the following circumstances:
(a) If he/she is convicted by a court of a criminal offence involving moral turpitude.
(b) If he/she commits corruption.
• 61A. Special provisions relating to departmental action and punishment : (1) Notwithstanding anything contained elsewhere in  this Act, if, pursuant to the Commission for the Investigation of Abuse of Authority Act, 2048 (1991), that Commission, and, pursuant to the prevailing law, the concerned body writes for departmental action against any civil employee, departmental punishment must be imposed accordingly, after fulfilling the required procedures.
(2) Notwithstanding anything contained elsewhere in this Act, if any civil employee is found absent in office without approved leave, he/she may be registered as absent and his/her salary may be deducted. Such period shall not be counted in the service period.
(3) Notwithstanding anything contained elsewhere in this Act, no office-bearer shall allow a civil employee who remains absent for a period exceeding ninety consecutive days to attend the office, by marking him/her as non-attendant. Departmental action shall be taken against the office-bearer who so allows office attendance; and
the salary and allowances, as well, received by the employee who has been so allowed to attend the office shall be realized from the office-bearer who has so allowed office attendance as governmental dues.

62. Departmental punishment awarding official :

(1) The following authority shall have the powers to issue order of punishment to the civil employee pursuant to Clause (b) of Section 59.
(a) The Government of Nepal for the employee working in first class and above that post.
(b) Concerned institution special class official for the employee working in gazetted second and
third class.
(c) Concerned institution departmental head or gazetted head of the office for the non gazetted
civil employees.
(2) The authority to issue order of punishment pursuant to Clause (a) of Section 59 shall be as prescribed.

63. Delegation of powers to award departmental punishment :
Government of Nepal may, by a Notification in the Nepal Gazette, delegate the powers of any official empowered to issue order of punishment pursuant to Section 62 to any other official specified in that Notification, to be exercised for such period as specified in that  Notification.

64. Powers to suspend :

(1) If the investigation of any charge mentioned in Section 61 is to be conducted in respect of any civil
employee, the official empowered to issue order of punishment may suspend such a civil employee until the conclusion of the investigation.
Provided that, generally suspension shall not be ordered unless the following circumstance exists:
(a) Where there is a possibility that he/she can collect false evidence or conceal any evidence
against him/her if he/she is not suspended and is allowed to carry out the duties of his/her post, or
(b) Where there is a possibility of governmental loss or damage if he/she is not suspended and is
allowed to carry out the duties of his/her post.
(2) The official empowered to issue order of punishment to a civil employee may give a notice of the charge to him/her on his/her removal or dismissal from service, and may also suspend him/her.
(3) In suspending a civil employee pursuant to Sub-section (1), he/she must not be suspended ordinarily for more than two months. The action against the employee must be completed within that period. If such action cannot be completed within that period because of the occurrence of any extra-ordinary circumstance and
the period of suspension has to be extended, the period of suspension may be extended for up to one month with the prior approval of the Authority.
(4) Any civil employee arrested and detained for a criminal charge involving moral turpitude shall be deemed to have ipso facto been suspended during the period of such detention.

65. Termination of suspension : If any civil employee is reinstated in his/her post or ▲ the period as referred to in Sub-section (3) of Section 64 is completed or he/she is removed or dismissed from
service, his/her suspension shall stand terminated.

66. Providing opportunity for defense : (1) The official empowered to issue order of departmental punishment must, prior to issuing an order of punishment to any civil employee, serve on him/her a
notice, explaining the reason for taking such action and give an opportunity to defend him/herself within a reasonable time limit. In giving such opportunity, the charge against him/her must be clearly
indicated and the facts and grounds on which each charge is based must be specified. In such case, the concerned employee must also submit his/her defense within the time limit; and the concerned official must seriously consider the defense so submitted.
(2) The official empowered to issue order of departmental punishment may, if he/she thinks it necessary, conduct an
investigation either by him/herself or through any other officer. The officer conducting the investigation must follow the prescribed  procedures.

67. To propose punishment prior to issuance of order of special punishment : If the concerned civil employee does not submit defense under Section 66 or if the defense submitted by such employee is not satisfactory, the official empowered to issue order of departmental punishment must, prior to issuing an order of special punishment, ask such civil employee to furnish an explanation why the proposed punishment intended to be imposed
on him/her should not be imposed on, within a reasonable time limit in this respect.

68. Seeking consultation of Public Service Commission : If it appears that the defense submitted under Section 66 or the explanation furnished under Section 67 by the concerned civil employee in the course of action on departmental punishment is not satisfactory and punishment is to be imposed on such employee, the official empowered to issue order of departmental punishment must propose the punishment intended to be imposed on that employee
and seek consultation of the Public Service Commission.

69. Constitution, functions and duties of Administrative Court :
(1) An Administrative Court shall be constituted, as prescribed, under the chairpersonship of a person who is a sitting or a retired judge of the Appellate Court, in order to hear appeals against the decisions of the official empowered to issue order of departmental punishment ? —–.
• (1a) Notwithstanding anything contained in Sub-section (1), where an appeal against the order of punishment as referred to in Clause (a) of Section 59 has been filed with any official at the time of commencement of this Section and yet to be settled, such appeal must be settled by the official with whom it has been filed.
(2) The decision made by the Administrative Court shall be final.
(3) If, on the final settlement of an appeal under this Section in regard to any civil employee, his/her service is to be reinstated by virtue thereof but he/she does not appear within three months from the date of receipt of a notice of that decision, it shall not be mandatory to reinstate him/her in the service.
(4) Other functions and duties of the Administrative Court and the procedures to be followed by the Court while exercising its jurisdiction or while performing its other functions shall be as prescribed.
(5) The appellant may, if he/she so wishes, appear on the appointed days either in person or by his/her attorney and may have his/her case pleaded by a legal practitioner.

70. Decision not to be affected : No decision shall be affected by any minor error which does not cause substantial effects on the action against a civil employee conducted by the competent authority pursuant to this Act or the Rules framed hereunder.

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