PUBLIC SERVICE COMMISSION DISCIPLINARY REGULATIONS
Table of Provisions (42)
Statutory Text (42 Articles)
[S.L. Const.07
PUBLIC SERVICE COMMISSION DISCIPLINARY
SUBSIDIARY LEGISLATION CONST.07
PUBLIC SERVICE COMMISSION DISCIPLINARY
REGULATIONS
1st October, 2023
LEGAL NOTICE 165 of 2023.
The title of these regulations is Public Service
Commission Disciplinary Regulations.
(1)
In these regulations, unless the context otherwise
requires
"1977 Regulations" means the Public Service
Commission (Disciplinary Procedure) Regulations, 1977;
"1999 Regulations" means the
Public Service
Commission (Disciplinary Procedure) Regulations, 1999;
"2017 Regulations" means the Public
Service
Commission Disciplinary Regulations, 2017;
"additional earnings" means income other than the basic
salary;
"agency" shall have the same meaning as that assigned to
it by article 2(1) of the Public Administration Act;
"Attorney General" means the Attorney General
appointed under article 91 of the Constitution, or a legal officer
authorised by him;
"Board" means a Disciplinary Board appointed as
provided for in regulation 18(2);
"Commission" means the Public Service Commission as
constituted under article 109 of the Constitution;
"Constitution" means the Constitution of Malta as enacted
by the Malta Independence Order, 1964 , and as subsequently
amended;
"definite suspension" means suspension without pay as a
penalty following disciplinary proceedings, and "suspend for a
definite period" shall be understood accordingly;
"department" shall have the same meaning as that
assigned to it by article 2(1) of the Public Administration Act
and, for the purposes of these regulations, includes also
(a)
a ministry; and
(b)
agency, government entity or another
public body to which a public officer may be assigned;
"electronic mail address" means a unique identifier for an
email account that is used to send and receive messages over
the internet;
"Executive Secretary" means the Executive Secretary to
the Public Service Commission;
"General Data Protection Regulation" means Regulation
(EU) 2016/679 of the European Parliament and the Council of
27 April 2016 on the protection of natural persons with regard
to the processing of personal data and on the free movement of
such data, and repealing Directive 95/46/EC;
"Government entity" shall have the same meaning as that
assigned to it by article 2(1) of the Public Administration Act;
"Head of Department" means the head of any department
of Government that is listed in the Second Schedule to the
Public Administration Act, but for the purpose of these
regulations also includes
(a)
Permanent Secretaries, Directors General
and Directors who are not Heads of Department;
(b)
any other public officer or authority, not
being a Head of Department, to whom power to
exercise disciplinary control has been delegated in
accordance with article 110 of the Constitution;
"Head of the Public Service" means the public officer
holding or acting in the office of Principal Permanent Secretary
in terms of article 14 of the Public Administration Act;
"ministry" shall have the same meaning as that assigned
to it by article 2(1) of the Public Administration Act;
"misconduct" means unacceptable conduct comprising,
but not limited to, breach of discipline, conduct which brings
the public service into disrepute, including failure to comply
with laws, rules, regulations or codes governing the public
service;
"official electronic mail address" means the unique
personal email address assigned to a public officer for the
purpose of his duties;
"Permanent Secretary" means a public officer appointed
as Permanent Secretary in terms of article 92(3) of the
Constitution;
"precautionary suspension" means suspension in the
public interest in terms of regulation 12 pending the conclusion
of disciplinary or criminal proceedings, and "suspend for
precautionary purposes" shall be understood accordingly;
"public officer" or "officer" means a public officer as
defined by article 124(1) of the Constitution;
"public service" or "service" means the public service as
defined by article 124(1) of the Constitution;
"Public Service Standing Disciplinary Panel" means a
panel established in terms of regulation 18(1);
"salary" means basic salary;
"statement of charges" means the written statement by
means of which a public officer is accused of a disciplinary
offence or offences in terms of regulation 17(1);
(2)
In these regulations, unless the context otherwise
requires, any reference to the holder of a particular office shall
include any person performing the functions of that office during any
period in which it is vacant or the holder thereof is absent.
Part II
General Provisions Governing Disciplinary Proceedings
(1)
Nothing in these regulations shall prevent the
Commission, with the consent of the Prime Minister, from issuing
directives and guidelines to delegated authorities concerning the
interpretation and operation of these regulations and the exercise of any
functions assigned to them under these regulations or delegated to them
under article 110 of the Constitution.
(2)
An instrument of delegation issued under article 110 of
the Constitution may provide for a penalty which shall not exceed
fifteen (15) working days suspension without pay and a warning of
dismissal valid for four (4) years.
(3)
Notwithstanding anything in these regulations, the
Commission shall have the power to take or to refrain from taking such
action as it may deem appropriate to take or not to take in the
circumstances, and any request or directive by the Commission, if it
deems fit in the particular circumstances, to any public officer, board or
other authority, other than the Prime Minister, performing functions
under these regulations or otherwise under the authority or on behalf of
the Commission, shall be complied with by any such public officer,
board or authority.
(4)
The Commission may, at its discretion, enquire into the
exercise of disciplinary control by any Head of Department.
(5)
Where the Commission considers that a Head of
Department has abused or misused his delegated authority or has
failed to exercise proper disciplinary control within his area of
jurisdiction, it may recommend to the Prime Minister that the
instrument of delegation in respect of that Head of Department be,
partly or fully withdrawn and, where appropriate, that disciplinary
action be taken in terms of these regulations.
(6)
Where the Commission is satisfied that a public officer,
board or other authority, other than the Prime Minister, performing
functions under these regulations has
(a)
failed to comply with any direction or ruling given
by the Commission under these regulations, or
(b)
failed to observe any of these regulations, or has
failed to perform satisfactorily any functions required under
these regulations,
it may report the case to the Prime Minister with the
recommendation that action in terms of these regulations be taken in
respect of the defaulting officer, board or other authority and the
Commission may also take action directly in terms of regulation 18(1)
to remove any member of the Public Service Standing Disciplinary
Panel.
(1)
An officer shall become liable to disciplinary
proceedings under these regulations for misconduct, which includes
(a)
unprofessional or unethical behaviour;
(b)
behaviour disrespectful to colleagues, superior
officers or members of the public; and
(c)
neglect or dereliction of duty.
(2)
Without prejudice to the generality of the foregoing, an
officer shall become liable to disciplinary proceedings under these
regulations for any of the offences listed in the Schedule of Penalties
and Offences.
(3)
These regulations shall not impede the application of
Title IV of Part II of the Police Act and of the Prisons Act, with respect
to disciplinary action taken by the Commissioner of Police, acting
under delegated authority, against police officers.
(1)
An officer shall report to the Head of Department,
by any appropriate means, any misconduct committed by an officer
under his responsibility by not later than five (5) working days after he
becomes aware of the offence.
(2)
A failure on the part of any officer to act in accordance
with sub-regulation (1) shall not invalidate disciplinary proceedings for
the said misconduct taken by higher authorities.
(3)
An officer against whom an offence under these
regulations has been committed (the victim) shall be entitled to file a
formal complaint in writing with the Head of Department of the officer
allegedly committing the offence (the perpetrator) by not later than six
(6) months from the date when the alleged offence is committed.
(1)
An officer charged with a disciplinary offence
under these regulations shall
(a)
be provided with a copy of all the evidence to be
used against him, and shall be given ten (10) working days
within which to consider that evidence and to reply thereto; and
(b)
have an adequate opportunity to make his defence.
(2)
Any evidence produced after the commencement of the
hearing of the case shall not be used against the officer unless the
officer has been supplied with a copy thereof and given ten (10)
working days to consider the additional evidence and reply thereto.
(3)
An officer answering disciplinary charges shall be
entitled to representation of his choice in the preparation and
presentation of his case and at every stage of any hearing before a
Disciplinary Board or before the Commission, including any hearing
on appeal
Provided that such representation shall be without
prejudice to the expeditious conclusion of the proceedings in terms of
these regulations.
(4)
An officer answering disciplinary charges shall be
entitled, as soon as possible, to know the decision on any report or
charge and the penalty, if any, imposed upon him by the Head of
Department or the Commission. Such information shall be
communicated in writing by the Head of Department or the Executive
Secretary to the Commission, as the case may be.
(5)
Where an officer answering disciplinary charges is
entitled to be notified of any matter or given any information under
these regulations, such service shall, unless these regulations prescribe
otherwise, be held to have been completed if the notification is
delivered to the address most recently reported by the officer to his
department as his home address, or to his official electronic mail
address, and if proof of delivery is retained. In the absence of an
official electronic mail address, such service may also, unless these
regulations prescribe otherwise, be held to have been completed if the
notification is delivered to the personal electronic mail address
provided by the officer to his department, and if proof of delivery is
retained.
(6)
Nothing in this regulation shall be taken as precluding
the discharge of the said entitlement through the delivery of the
notification or information directly to the officer answering charges or
by other means, including electronic means, provided that proof of
such delivery is retained.
(1)
A Head of Department issuing charges of
misconduct against an officer under these regulations may be present
and may be assisted through representation of his choice, at every
stage of any hearing before a Disciplinary Board or before the
Commission, including any hearing on appeal. The absence of the
Head of Department or his representative during any stage of the
proceedings, shall not preclude the Disciplinary Board or the
Commission, as the case may be, from proceeding with any hearing
if it is shown that the Head of Department or his representative
were sufficiently notified.
(2)
The Head of Department shall be notified of any
evidence produced by the officer charged after the commencement of
the hearing and shall be given ten (10) working days to consider the
evidence and present any written submissions to the Board
Provided that the Disciplinary Board or the Commission
as the case may be, shall decide whether the evidence is relevant to the
charges brought against the officer or otherwise and shall, in its
discretion, decide whether the evidence is to be presented during the
disciplinary proceedings.
The alleged victim of a disciplinary offence shall, upon
submitting a request in writing to the Permanent Secretary, be entitled
to be present at every stage of any disciplinary proceedings which may
be instituted to investigate the alleged offence, and may choose to be
accompanied in accordance with his choice, subject to the following
conditions
(a)
the alleged victim or his representative shall not
be considered to be a party to the proceedings, and thus shall
not be entitled to bring evidence, cross-examine witnesses or
otherwise intervene in the proceedings
Provided that the alleged victim may be called as
a witness by either party or may submit a written request to
the Disciplinary Board to be called as witness during the
proceedings; and
(b)
the alleged victim shall have the same right as the
officer charged to access the evidence, to the findings of the
Disciplinary Board, including the guilt or otherwise of the
officer charged and the penalty, if any and to the final decision
taken by the Head of Department or the Commission.
(1)
Where a Head of Department considers that there
exist justifiable reasons or circumstances which make it inadvisable for
him to involve himself in disciplinary action against a particular officer
under his charge, he shall consult the Permanent Secretary of the
respective Ministry, who may in turn, take such action as a Head of
Department is empowered to take under these regulations
Provided that where the Head of Department happens to
be a Permanent Secretary, he shall consult the Head of the Public
Service, who may, in turn, take such action as a Head of Department is
empowered to take, or delegate this power to another Permanent
Secretary.
Whenever the public officer against whom disciplinary
proceedings are to be taken happens to be serving in an office or
establishment which does not form part of any department of
Government, the Permanent Secretary supervising that establishment
shall take such action as a Head of Department is empowered to take
under these regulations
Provided that the Prime Minister, acting on the
recommendation of the Public Service Commission, may delegate such
power to a senior officer of such office or establishment under such
conditions as may be specified in the instrument of delegation.
Part III
Interim Measures pending Disciplinary or Criminal Proceedings
(1)
When it comes to the notice of a Head of
Department that an officer under his responsibility
(a)
is being investigated or has been arrested by the
police in connection with a criminal investigation; or
(b)
is being investigated in connection with a
disciplinary offence; or
(c)
may have committed an alleged misconduct, or
disobeyed lawful orders, whether written or verbal,
and the Head of Department considers it necessary that the
officer under his responsibility should be immediately withdrawn from
his place of work, he may direct the officer to avail himself of forced
leave for a period not exceeding eighty (80) hours and the officer shall
comply
Provided that the period of forced leave shall be resorted
to only as an interim measure and shall not be prolonged without due
reason. The Head of Department shall without delay determine
whether action in terms of regulations 12 or 13 should be initiated
Provided further that an officer so directed under this
regulation, shall have the right to report back to work immediately
upon the lapse of the eighty (80) hours forced leave period, unless
action has been taken by the Head of Department in terms of
regulations 12 and 13, prior to the expiry of the indicated period of
forced leave.
(2) The officer’s vacation leave entitlement for that year
shall be augmented by the equivalent of the leave taken in accordance
with sub-regulation (1) if
(a)
the police investigation does not result in the
arraignment of the public officer concerned; or
(b)
the investigation carried out by the Head of
Department does not result in the taking of any disciplinary
action; or
(c)
the public officer is acquitted from all the charges
against him, being criminal or disciplinary.
(1)
When it comes to the notice of a Head of
Department that an officer under his responsibility
(a)
may have committed a serious disciplinary
offence; or
(b)
further investigation is necessary to establish
whether disciplinary or criminal proceedings are warranted; or
(c)
is to be arraigned in court or is being investigated
or has been arrested by the police in connection with a criminal
offence, which is of a nature likely to warrant disciplinary
action,
and the Head of Department considers it necessary and in the
public interest that the officer should be withdrawn from the place of
work for an interim period, he may suspend the officer from the
exercise of the powers and functions of his office, for precautionary
purposes.
(2)
If the officer considers that the decision of the Head of
Department is unjust in his regard, he may appeal to the Commission
within five (5) working days, setting out the reasons why he considers
that the decision in his respect was unjust. The officer may also appeal,
by presenting justified reasons, regarding the proportion of salary to be
withheld in terms of sub-regulation (5).
(3)
In treating an appeal under sub-regulation (2), the
Commission shall seek the views of the Head of Department. If the
Commission considers an appeal under sub-regulation (2) to be
justified, it shall seek to annul the decision of the Head of Department
by means of a recommendation to the Prime Minister or the Head of the
Public Service, as the case may be, and upon approval of such
recommendation, inform the officer and the Head of Department that
the precautionary suspension is revoked.
(4)
In the event that the suspension is revoked, the officer
under suspension shall be immediately recalled for duty and shall be
refunded any salary withheld during the period of precautionary
suspension.
(5)
A public officer who is suspended for precautionary
purposes shall receive eighty per cent (80%) of the salary or the
equivalent to the rate of the minimum wage, as determined in terms of
the National Minimum Wage National Standing Order, whichever is the
higher.
(6)
If the disciplinary or criminal proceedings do not result
in the dismissal of the officer or another penalty, the officer shall be
entitled to the full amount of salary which he would have received if
he had not been suspended for precautionary purposes. The officer
shall also be entitled to a pro rata payment in lieu of any additional
earnings withheld over and above his salary, which payment shall be
computed on the mean average of the additional earnings of the
previous three (3) years prior to the precautionary suspension. If the
penalty is other than dismissal, he may be refunded such proportion
of the salary withheld as a result of his precautionary suspension
as recommended by the Commission. If the penalty is dismissal, the
officer shall forfeit the salary withheld as a result of his
precautionary suspension.
(7)
Where an officer against whom disciplinary or criminal
action has been taken and is pending, ceases to be a public officer
before the conclusion of such action, any salary withheld as a result of
his precautionary suspension shall not be refunded unless he is
acquitted of all the charges brought against him. If the officer dies
when proceedings are still pending, any salary withheld as a result of
his precautionary suspension is refunded to his heirs
Provided that when an officer who has had his salary
withheld as a result of his precautionary suspension ceases to be a
public officer before any disciplinary or criminal charges are issued,
then the officer shall be refunded the salary which had been withheld
from him during the period of his precautionary suspension.
(8)
An officer who is under precautionary suspension shall
not have access to any official premises identified by the Head of
Department, and shall not remove, destroy or add to, or cause to be
removed, destroyed or added to, any official document, instrument or
matter.
(9)
The Head of Department may review the precautionary
suspension of the officer at any time, without prejudice to any action in
terms of these regulations, should disciplinary or criminal proceedings
be instituted against the officer concerned
Provided that the review procedure shall be subject to
any directions and guidelines issued by the Commission from time to
time in terms of regulation 3(1).
(10) Without prejudice to sub-regulation (9) an officer
suspended for precautionary purposes in accordance with this
regulation and in relation to whom a written statement of the charge or
charges is not issued in accordance with regulation 17(1)(b), after the
expiration of sixty (60) working days from the date of such
suspension, may present written submissions with justified reasons
asking the Head of Department to lift the precautionary suspension
Provided that the review procedure shall be subject to
any direction and guidelines issued by the Commission from time to
time in accordance with regulation 3(1).
(11) When the Head of Department does not lift the
precautionary suspension, after a request by an officer in accordance
with sub-regulation (10) and the officer considers that the decision of
the Head of Department in his regard was unjust, the officer may
appeal in writing to the Commission within five (5) working days,
where he gives the reasons why he considers that the decision
regarding him was unjust and requests the Commission to revoke or
amend the decision.
(12) In treating an appeal under sub-regulation (11), the
Commission shall seek the views of the Head of Department. If the
Commission considers an appeal under sub-regulation (11) to be
justified, it shall seek to annul the decision of the Head of Department
by means of a recommendation to the Prime Minister or the Head of
the Public Service, as the case may be, and upon approval of the
recommendation, inform the officer and the Head of Department of
such decision.
(13) The lifting of a precautionary suspension following
submissions in terms of sub-regulation (10) or an appeal in terms of
sub-regulation (11) shall be without prejudice to any action in terms of
these regulations, should criminal proceedings be instituted against the
officer concerned.
(14) Notwithstanding the provisions of sub-regulations (5),
(6) and (7), if an officer is in prison under preventive custody or
serving a court sentence, no salary shall be due to the officer during the
period of imprisonment. The salary withheld shall be forfeited if the
officer is subsequently found guilty of the offence with which he is
charged.
Part IV
Criminal Offences
(1)
When it comes to the notice of a Head of
Department that an offence in terms of these regulations, allegedly
committed by a public officer under his responsibility may be of a
criminal nature, he shall consult the Attorney General as to whether a
prosecution should be instituted or, if the latter does not advise a
prosecution, as to whether disciplinary action should be taken under
these regulations. In the latter case, the charges brought against the
officer shall be approved by the Attorney General before they are
issued by the Head of Department in terms of regulation 17(1)(b).
(2)
If criminal proceedings are instituted against a public
officer in any court, the officer shall so inform his Head of Department
within three (3) working days from the day after the commencement of
such proceedings. The Commissioner of Police shall also report to the
Head of Department that criminal proceedings are being instituted
against the said public officer
Provided that neither the officer nor the Commissioner of
Police shall be obliged to inform the Head of Department about
criminal proceedings instituted solely in connection with a
contravention, unless that contravention is alleged to have occurred at
the officer’s place of work or is related to his duties.
(3)
Whenever it comes to the notice of the Head of
Department that a public officer under his responsibility is to be
arraigned in court or is being investigated or has been arrested by the
police in connection with a criminal offence which is of a nature likely
to warrant disciplinary action, and the Head of Department considers
that the officer should be withdrawn from the place of work for an
interim period, he may suspend the officer for precautionary purposes
from the exercise of his powers and functions. In so doing the Head of
Department shall act in terms of regulation 12. No disciplinary
proceedings against such an officer upon any grounds involved in the
criminal charge shall be taken until the conclusion of the criminal
proceedings and the determination of any appeal, as the case may be.
(4)
Without prejudice to regulation 12(9), an officer
suspended for precautionary purposes in terms of this regulation, and in
respect of whom no criminal charges are instituted after the lapse of six
(6) months from the date of such suspension, may submit written
representations with justified reasons requesting the Head of
Department to consider the lifting of such suspension
Provided that the review procedure shall be subject to
any directions and guidelines issued by the Commission from time to
time in accordance with regulation 3(1).
(5)
When the Head of Department does not lift a
precautionary suspension, after a request by an officer in accordance
with sub-regulation (4) and the officer considers that the decision of
the Head of Department in his regard was unjust, the officer may
appeal to the Commission within five (5) working days starting from
the day after he receives the notification from the Head of Department,
where he gives the reasons why he considers that the decision
regarding him was unjust.
(6)
In treating an appeal under sub-regulation (5), the
Commission shall seek the views of the Head of Department. If the
Commission considers an appeal under sub-regulation (5) to be
justified, it shall seek to annul the decision of the Head of Department
by means of a recommendation to the Prime Minister or the Head of
the Public Service, as the case may be, and upon approval of the
recommendation, inform the officer and the Head of Department of
such decision.
(7) The lifting of a precautionary suspension following
representations in terms of sub-regulation (4) shall be without
prejudice to any action in terms of these regulations, should criminal
proceedings be instituted against the officer concerned.
(1)
A public officer acquitted of a criminal charge in
any Court shall not be dismissed or otherwise punished on any charge
upon which he has been acquitted, but nothing in this regulation shall
prevent his being dismissed or otherwise punished on any other charge
arising out of his conduct in the matter, unless the charge raises
substantially the same issues as those on which he has been acquitted.
(2)
Whenever a Head of Department, or his delegated
representative, decides to take disciplinary action against an officer in
terms of regulation 17 and in accordance with sub-regulation (1), he
shall submit, within five (5) working days from when he becomes
aware of the court judgement that has become final and definite, the
proposed statement of the charges to the Attorney General for his
approval. The Head of Department shall await the Attorney General’s
approval before initiating any disciplinary proceedings.
(3) Where a public officer has been acquitted of a criminal
charge, the Head of Department shall lift the precautionary
suspension in connection with the case without undue delay. The
officer shall be entitled, in terms of regulation 12(6), to be refunded
the proportion of salary withheld during the period of such suspension.
(1)
If a public officer has been found guilty of a
criminal charge, the findings of the Court on such charge shall be
referred by the Head of Department to the Commission
Provided that, the Head of Department may refrain from
referring the findings of the Court to the Commission if after
considering such findings and the effect of the misconduct on the
reputation of the Public Service, he determines that
(a)
the misconduct has no direct or indirect relation to
the duties of the officer concerned, and
(b)
the penalty imposed by the Court does not include
a sentence of imprisonment, whether it be effective or
suspended, or interdiction in terms of Article 10 of the Criminal
Code.
(2)
The Commission, after considering the findings of the
Court, and of the Court of Appeal, if any, the nature of the
misconduct and whether such misconduct has a direct or indirect
relation to the duties of the officer concerned, shall make a
recommendation to the Prime Minister or the Head of the Public
Service, as the case may be, as to the penalty, if any, to be imposed
Provided that if the Commission considers that the
appropriate penalty following conviction on a criminal charge shall be
dismissal or a warning of dismissal or the forfeiture of any salary
withheld, it shall inform the officer of his right to make written
representations to the Commission within a period of ten (10) working
days from such notification and the Commission shall consider
such representations and may give the officer the opportunity
of an oral hearing before making a recommendation to the Prime
Minister or the Head of the Public Service, as the case may be.
(3)
If an officer who has been suspended for precautionary
purposes as a result of criminal proceedings is found guilty and the
Head of Department, refrains from referring the case to the
Commission in terms of sub-regulation (1), he shall lift the
precautionary suspension without undue delay
Provided that the officer shall be entitled to the part salary
withheld during the period of precautionary suspension
Provided further that where the case is referred to the
Commission by the Head of Department and the proposed penalty
following conviction is other than dismissal, the Commission may
recommend the lifting of the precautionary suspension without
prejudice to the possibility of the forfeiture of the salary withheld or
the imposition of disciplinary penalties.
Part V
Disciplinary Procedure under Delegated Authority
The provisions of this Part shall only apply where the
exercise of disciplinary powers and control have been delegated to a
Head of Department or other officer or authority by the Prime Minister
in accordance with article 110 of the Constitution and shall only so
apply to the extent specified.
(1)
Whenever it comes to the notice of a Head of
Department that an alleged misconduct or breach of discipline may
have been committed under his charge the following provisions shall
apply
(a)
unless an investigation is made in terms of the
Inquiries Act, the Head of Department shall conclude the
gathering of any necessary information and evidence within
twenty (20) working days from the date when the alleged
misconduct or breach of discipline comes to his notice
Provided that where the Head of Department
considers that more than twenty (20) working days are required
to conclude the gathering of information and evidence, he shall
seek approval from the Permanent Secretary responsible for the
department concerned for an extension of not more than ten
(10) working days;
(b)
the Head of Department shall, in no case later than
ten (10) working days from the date when he concluded the
gathering of information and evidence, or not later than ninety
(90) working days from the date of the signing of a report made
in terms of the Inquiries Act, prepare a written statement of
charges against the officer concerned and he shall also inform the
officer whether in his opinion the charge or charges constitute a
minor or a serious offence and whether the offence could lead to
dismissal;
(c)
the officer shall be allowed ten (10) working days
from the date on which the statement of charges, including a
copy of all the evidence to be used against him, is delivered to
him in accordance with regulation 6(5) and (6), to reply in
writing to the charge or charges made against him, stating any
grounds on which he relies to exculpate himself;
(d)
a correction to the statement of charges may be
made by the Head of Department, by means of a note in writing
to the officer charged and to the Disciplinary Board, as the case
may be, at any time during the proceedings, provided that the
correction does not alter the substance of the charges;
(e)
if, after considering the officer’s reply, the Head
of Department is satisfied that the officer has exculpated
himself, he shall so inform the officer. All the documents related
to the case shall be destroyed after two (2) months from the date
the officer is so informed;
(f)
if, the officer admits the charge or charges, the
Head of Department shall communicate to the officer charged
his decision on the charge or charges and the penalty, if any;
(g)
if the officer does not furnish a reply within the
period specified, or does not in the opinion of the Head of
Department exculpate himself, the Head of Department shall,
within ten (10) working days from the receipt of a reply or from
the date on which such a reply was due, refer the case to a
Disciplinary Board appointed under regulation 18. The letter to
the Disciplinary Board shall be copied to the officer charged
Provided that where the Head of Department
considers that it would be in the best interest of the officer if he is
offered the opportunity to rehabilitate himself, and the officer
agrees, within ten (10) working days, to seek professional support
preferably through an entity set up by Government to assist public
officers experiencing personal, emotional or behavioural
problems, the Head of Department may refrain from
(i)
communicating his decision on the charge
or charges and the penalty, to the officer charged, in terms
of paragraph (f), or
(ii)
referring the case to a Disciplinary Board
appointed under regulation 18, in terms of this sub-
regulation
Provided further that where the officer accepts
referral to such professional support, within ten (10) working
days, such action shall be kept in abeyance and the prescriptive
period indicated in this regulation shall be temporarily
suspended. The Head of Department shall keep a record
accordingly
Provided further that if the officer refuses to seek
professional support or does not successfully complete a support
programme, the Head of Department shall communicate the
penalty, in terms of paragraph (f). The prescriptive period
stipulated in paragraph (g) shall be immediately re-activated,
and the Head of Department shall issue the statement of charges
in terms of this regulation.
(2)
Notwithstanding the provisions of sub-regulation (1)
(a)
no action shall be taken in respect of a minor
offence which has occurred earlier than twelve (12) months
from the date when the alleged minor offence comes to the
notice of the Head of Department;
(b)
where the officer charged had been given notice
that the charges are of a minor nature and concern a first or
second minor case of misconduct by the officer charged, the
Head of Department shall, together with the statement of
charges, inform the officer charged of his right to request an
early resolution meeting and of his right to be accompanied by
a representative of his choice at such meeting. The officer
charged shall be given three (3) working days to register his
request to convene the early resolution meeting
Provided that
(i)
if the officer charged does not register a
request in writing to convene an early resolution
meeting, the provisions in terms of sub-regulation (1)(b)
shall apply;
(ii)
if, within three (3) working days, the
officer charged registers a request in writing to convene
an early resolution meeting, the meeting shall be
convened by the Head of Department without delay and
not later than five (5) working days from the date on
which the Head of Department was notified by the
officer. The prescriptive period indicated in sub-
regulation (1)(c) shall be temporarily suspended and the
Head of Department shall keep a record accordingly;
(iii) where the early resolution meeting results
in mutual agreement by the parties on the guilt or
otherwise of the officer charged and the penalty, if any, to
be imposed, or any other action deemed opportune, the
Head of Department shall conclude the early resolution
meeting by communicating to the officer charged the
agreed decision in writing. The officer charged is to
indicate his agreement in writing within two (2) working
days
Provided further that any penalty imposed
by the Head of Department upon mutual agreement
reached during the early resolution meeting shall not be
subject to an appeal before the Commission, in terms of
these regulations;
(iv) where no mutual agreement is reached
pursuant to the early resolution meeting, or the officer
does not indicate in writing his agreement in terms of
paragraph (b), the prescriptive period in terms of sub-
regulation (1)(c) shall be immediately reactivated and the
provisions in terms of the same sub-regulation (1)(c) shall
apply;
(c)
where the officer charged had been given notice
that the charges are serious, the Head of Department may, at any
stage of the proceedings and for sufficient and justifiable
reasons, decrease the categorisation of the charges.
In such cases, the Head of Department shall enter a note
in the records of the case specifying the reasons why he had
decreased the categorisation of the disciplinary charge.
(1)
There shall be a Public Service Standing
Disciplinary Panel, consisting of suitable and competent former public
officers, as approved by the Head of the Public Service or his delegate.
A member of the Panel may be removed by the Commission, at its
discretion, at any time.
(2)
A Disciplinary Board for the purpose of regulation 17(1)(g)
shall consist of at least three (3) persons, who shall be appointed by the
Permanent Secretary of the ministry responsible for the officer charged,
from among suitable and competent public officers, and, or persons listed
in the Public Service Standing Disciplinary Panel
Provided that where the offence is categorised as being of a
minor nature, the Disciplinary Board may be composed entirely of
members of the Public Service Standing Disciplinary Panel
Provided further that in all other cases the Disciplinary
Board appointed shall be chaired by a public officer who shall not be an
officer performing duties within the same ministry, and shall be
(a)
not less than two (2) salary scales above that of
the officer charged and not below salary scale 7;
(b)
in salary scale 5 or higher if it is specified in the
statement of charges that if proved, the charges may lead to
dismissal;
(c)
in a salary scale not below that of the officer
charged whenever the officer charged is in salary scale 3 or
higher.
(3)
If a public officer is appointed as a member of a
Disciplinary Board, he shall
(a)
not be an officer performing duties within the
same ministry of the Head of Department issuing the
statement of the charges; and
(b)
be at least one salary scale above that of the
officer charged
Provided that where the officer charged is in
salary scale 3 or higher, the member shall be in a salary scale
not below that of the officer charged.
(4) The chairperson and members serving on the Board shall
not be connected with the case of discipline or have any apparent
interest in the disciplinary case, and they shall not be related up to the
fourth civil degree to any party involved in the case. Where any
member of the Board would be placed in a conflict or an apparent
conflict of interest if he sat on the Disciplinary Board, he shall
immediately as soon as he becomes aware of such conflict inform the
Permanent Secretary, who shall nominate a substitute in accordance
with sub-regulations (2) and (3), within ten (10) working days from the
date he was notified of such conflict of interest.
(5) Where serious objections are raised by the officer
charged or by his representative that the Chairperson and, or any of the
members of the Board are in some way prejudiced against him, the
officer charged may accordingly petition the Permanent Secretary
before the start of the hearing. Pending the decision of the Permanent
Secretary, the disciplinary proceedings shall be suspended.
(6) If the Permanent Secretary accepts a petition under sub-
regulation (5), he shall appoint a fresh Board or make appropriate
changes to the Board in accordance with sub-regulations (2) and (3).
The petitioning officer shall be informed accordingly.
(7)
If the Permanent Secretary does not accept the petition
under sub-regulation (5), he shall inform the petitioner accordingly,
who shall have the right to refer his petition, within five (5) working
days from the date he is so informed, to the Public Service
Commission for its consideration. The decision of the Public Service
Commission shall be final.
(1)
Chairpersons and members of Disciplinary Boards
shall take an oath or make a solemn declaration before a
Commissioner for Oaths prior to the commencement of the
proceedings of the Disciplinary Board.
(2)
Every Disciplinary Board appointed under regulation 18
to investigate the case shall establish the facts and communicate its
findings to the Head of Department and to the officer charged by not
later than forty (40) working days from the date of the first sitting
Provided that where the charges were categorised as
being of a minor nature the Disciplinary Board shall establish the facts
and communicate its findings to the parties by not later than twenty
(20) working days from the date of the first sitting.
(3)
The Disciplinary Board shall have the power to
(a)
seek expert advice whenever it considers such
advice to be necessary or expedient;
(b)
summon persons as witnesses to give evidence
and to produce documents in their possession; and
(c)
administer oaths.
(4) Where serious and justifiable reasons exist that may
preclude the Disciplinary Board from communicating its findings
within the period specified in sub-regulation (2), the Board shall
refer the matter to the Permanent Secretary by whom it was
appointed, seeking approval for an extension to the period indicated
in sub-regulation (2)
Provided that where the charges were categorised as
being of a minor nature the Permanent Secretary may only authorise
one extension of a further twenty (20) working days to the period
indicated in sub-regulation (2)
Provided further that in all other cases, where justified
reasons exist, the Permanent Secretary may approve to extend the
timeline stipulated in sub-regulation (2) by a further forty (40)
working days. Notwithstanding, the proceedings before the
Disciplinary Board may not, as far as possible, be extended beyond
six (6) months from the date of the first sitting. Where extenuating
circumstances exist that preclude the Disciplinary Board from
concluding the proceedings within this timeframe, the Permanent
Secretary shall seek direction from the Head of the Public Service or
his delegate, who, after considering the extenuating circumstances,
may approve a further extension for the Disciplinary Board to
conclude the proceedings before it.
(1)
Without prejudice to the provisions of regulations
6(3) and 7(1), in exercising its functions under these regulations, a
Disciplinary Board shall afford a fair opportunity to both sides to
present their case, but shall dispense with all undue formalities and
ensure that justice is done expeditiously and according to the
substantive merits of the case.
(2)
Notice of not less than ten (10) working days shall be
given of the time and place of the first hearing to the Head of
Department and to the officer charged. Every notice shall be signed by
the Chairperson and delivered in accordance with regulation 6(5) and
(6). The date and time of any subsequent hearing shall be determined
by the Disciplinary Board in consultation with both parties to the case
Provided that the first sitting shall not be held later than
fifteen (15) working days from the date on which the Disciplinary
Board was appointed.
(3)
If either party fails to appear at a hearing of the
Disciplinary Board, and the Board is satisfied that notice of the
hearing was given in accordance with this regulation, it may
proceed with the case notwithstanding the absence of that party if,
taking all circumstances into account, including the requirement to
conclude proceedings expeditiously, the Board is of the opinion
that it ought so to proceed with the case.
(4)
The following procedure shall apply to the hearing by a
Board
(a)
the hearing shall be held in private;
(b)
the officer charged shall be given the full
opportunity to defend himself and to produce witnesses whose
evidence is relevant and material to the case;
(c)
each party to the case may cross-examine the
witnesses called by the other party or by the Disciplinary
Board, and the Board may also put questions to the witnesses.
(5)
The Disciplinary Board may regulate its own procedure
at the hearing without prejudice to any directives and guidelines issued
by the Commission in terms of regulation 3(1).
Provided that, during the course of the disciplinary
proceedings before the Disciplinary Board, either party may request a
ruling from the Commission on issues regarding the interpretation of
these regulations. The ruling shall be binding on both parties and on
the Disciplinary Board and shall be communicated in writing.
(1)
Where, in the opinion of the Disciplinary Board,
the evidence it has before it discloses other prima facie related
misconduct on the part of the officer charged, the hearing shall be
suspended and the following procedure shall apply
(a)
the Disciplinary Board shall report the matter to
the Head of Department and to the officer charged;
(b)
if the Head of Department thinks fit to proceed
against the officer he shall furnish the officer with a statement
of charges for the additional misconduct disclosed, and the
procedure described in regulation 17 shall apply;
(c)
in drawing up the statement of charges under
paragraph (b), the Head of Department may, if applicable and if
he deems it necessary in the light of the additional charges,
increase the level of seriousness ascribed to the original case or
designate the charges as potentially leading to the officer’s
dismissal in which case the provisions of regulation 18(2) and
(3) shall apply as to the composition of the Disciplinary Board;
(d)
unless recomposed, the Disciplinary Board shall
continue to hear the case on the basis of both statements of
charges received and shall grant both parties to the case the
opportunity to present additional witnesses in connection with
the additional charges.
(2)
Where, in the opinion of the Disciplinary Board, the
evidence produced discloses other misconduct not related to the
original charge, it shall refer such evidence to the Head of Department
and the procedure laid down in regulation 17 shall apply.
(3)
The provisions of sub-regulation (2) shall not be invoked
when the additional grounds constitute a minor offence that would have
lapsed after twelve (12) months.
(1)
At the conclusion of its investigation, and before it
submits the report to the Head of Department and to the officer
charged, the Board shall ensure that its conclusions are verbally
communicated to the parties at a final session held for the purpose.
(2)
The Disciplinary Board report shall comprise
(a)
a summary of such parts of the evidence as the
Board considers relevant;
(b)
the findings of the investigation on material
questions of fact;
(c)
a statement whether in the Board’s opinion the
officer charged has or has not committed the offence or offences
charged and a brief statement of the reasons for that opinion;
(d)
details of any matters which alleviate or aggravate
the gravity of the case;
(e)
any recommendation for the officer charged to be
referred to support programmes; and
(f)
a recommendation on the penalty to be imposed by
the Head of Department, giving reasons
Provided that where the Head of Department had
given notice to the officer charged that the charges, if proven,
could lead to dismissal, the report of the Board shall only
include an opinion on the penalty to be imposed and not a
recommendation.
(1)
After the findings of the Board are communicated
to the Head of Department and to the officer charged, the following
procedure shall apply in all cases, except where the Head of
Department had given notice to the officer charged that the charges, if
proved, could lead to dismissal
(a)
the officer charged may make written
representations or ask for an appointment to make oral
representations to the Head of Department, within ten (10)
working days from the date on which the findings of the Board
are communicated to him, and such representations shall clearly
state the grounds on which they are based;
(b)
the Head of Department shall consider the
recommendation of the Disciplinary Board with regard to the
penalty to be imposed, if any, and any representations made to
him by the officer charged and shall, by not later than ten (10)
working days from the date on which he received such
representations, communicate to the officer his decision on the
charge or charges, whether he accepts the Board’s findings, and
on the penalty, if any, that he has imposed;
(c)
whenever an officer admits a charge during the
course of the proceedings or fails to make any representations
to the Head of Department within the period specified in
paragraph (a), the Head of Department shall consider the
recommendation of the Board with regard to the penalty, and
communicate to the officer charged, by not later than ten (10)
working days, his decision on the findings of the Board and the
penalty imposed, if any
Provided that whenever the Head of Department
is not in agreement with the recommendation of the Board with
regard to the penalty, the Head of Department shall enter a note
in the records of the case specifying the reasons for such
disagreement;
(d)
whenever it results from the findings of the Board
that the offence, contrary to what was originally stated by the
Head of Department, was not of a serious nature, the
Disciplinary Board may recommend a lesser penalty than that
applicable for serious offences, provided that in such cases the
Head of Department shall enter a note in the records of the case
specifying the reasons why he accepted the findings of the
Board and consequently awarded a lesser penalty.
(2)
In the case of an offence where the Head of Department
had given notice to the officer charged that the charges, if proved,
could lead to dismissal, the following procedure shall apply
(a)
the Head of Department shall, within five (5)
working days from receipt of the Board’s report send a copy to
the Commission, along with a statement as to whether or not he
agrees with the report and including the reasons which led him
to agree or disagree with the report;
(b)
if after considering the report of the Board and the
circumstances of the case, the Head of Department is of the view
that it warrants a lesser penalty than dismissal, he shall enclose
with the report his recommendation to the Commission in terms
of paragraph (a);
(c)
in giving consideration to the Board’s findings and
opinion, and to any submissions made by the Head of
Department in terms of the foregoing, the Commission shall
give the officer charged the opportunity to submit written
representations. The Commission may give an opportunity to
the officer charged and to the Head of Department to make oral
representations;
(d)
after considering the findings of the Board and the
representations made to it, the Commission shall make its
recommendation to the Prime Minister or the Head of the Public
Service, as the case may be, both as to the guilt or otherwise of
the officer charged and as to the penalty imposed, if any.
(3)
(a)
Without prejudice to sub-regulations (1) and (2),
whenever an officer is found guilty of an offence that is not considered
of a serious nature that may lead to dismissal, and the Head of
Department considers that it would be in the best interest of the officer
if he is offered the opportunity to rehabilitate himself, preferably
through an entity set up by Government to assist public officers
experiencing personal, emotional or behavioural problems, he shall
decide on the penalty, if any, to be imposed, in terms of sub-regulation
(1), but shall refrain from informing the officer accordingly. If the
officer agrees to seek professional support within ten (10) working
days, the penalty shall be held in abeyance until successful completion
of the programme. The Head of Department shall be informed of the
progress being made by the officer, and for such purposes, a report
shall be provided by the entity concerned. The Head of Department
shall then decide as to whether the penalty shall be put in effect or
otherwise;
(b)
where the officer had been informed that the charges, if
proved, could lead to his dismissal, the Commission shall proceed in
accordance with sub-regulation (2)(c). If the Commission, considers
that it would be in the best interest of the officer if he is offered the
opportunity to rehabilitate himself, preferably through an entity set up
by Government to assist public officers experiencing personal,
emotional or behavioural problems, and the officer agrees to seek such
professional support within ten (10) working days, the Commission
shall decide on the penalty, if any, to be recommended to be imposed
but shall refrain from making its recommendation to the Prime
Minister or the Head of the Public service, as the case may be, in terms
of sub-regulation (2)(d).The recommendation shall be held in
abeyance until the successful completion of the rehabilitation
programme. The Head of Department shall keep the Commission
informed of the progress being made by the officer, and for such
purposes, a report shall be provided by the entity concerned. The
Commission shall then decide as to whether the penalty shall be put in
effect or otherwise.
(4)
In any case, if an officer refuses to seek professional
assistance, or does not successfully complete a rehabilitation
programme, the penalty originally decided upon by the Head of
Department or the Commission, as applicable, shall be imposed.
(5)
Whenever the officer has been suspended for
precautionary purposes, the Commission may make its
recommendation to the Prime Minister or the Head of the Public
Service, as the case may be, for the precautionary suspension to be
lifted, without prejudice to the forfeiture of the salary withheld during
the period under suspension.
(1)
The records of any disciplinary proceedings shall
include the following
(a)
any written report made against an officer, or a
written record of any verbal report;
(b)
any statement of charge or charges;
(c)
any written representations made by the officer
charged by way of reply to the charge or charges or otherwise in
the course of proceedings;
(d)
copies of all documents, papers and files received
by the Disciplinary Board from any party in connection with the
proceedings;
(e)
notes of evidence taken by the Disciplinary Board
shall include a statement of all persons present during the
hearing and a transcript of the evidence of all sessions held;
(f)
any decision taken or any recommendation made
by a Head of Department regarding the guilt or otherwise of an
officer, and the penalty or penalties, if any, awarded;
(g)
any written representations made by the officer
charged in regard to the findings of a Disciplinary Board, or in
regard to any penalty awarded;
(h)
in a case leading to dismissal, a transcript or audio
recording of the oral hearing held before the Commission, if any,
in accordance with the Commission’s data retention policy.
(2)
Any attempt to tamper with or to destroy the record of
proceedings shall be considered as a serious offence.
(3)
A Head of Department shall comply with any instructions
that may be issued by the Head of the Public Service, from time to
time, with the concurrence of the Commission, with regard to the
holding of records relating to disciplinary proceedings.
Part VI
Disciplinary Procedure when Disciplinary Powers have not been
delegated
Where disciplinary control has not been delegated to a
Head of Department or another officer or authority in accordance with
article 110 of the Constitution, or where delegated powers have been
withdrawn, the following provisions and procedures shall apply
(a)
whenever it comes to the knowledge of a Head of
Department that an officer in his department may be guilty of
misconduct, the provisions of regulation 17(1)(a), (b) and (c)
shall apply;
(b)
if the officer charged admits to the charge or
charges before the Disciplinary Board begins to hear the case,
the Head of Department shall, as early as possible and in any
case not later than ten (10) working days therefrom, refer the
case to the Commission, which shall make its recommendation
to the Prime Minister as to the penalty, if any, to be imposed;
(c)
if the officer charged does not admit to the charge
or charges or does not furnish a reply within ten (10) working
days, the Head of Department shall, within twenty (20) working
days from the receipt of the reply or from the date on which such
a reply was due, refer the case to a Disciplinary Board appointed
in terms of regulation 18;
(d)
before the Disciplinary Board communicates its
findings to the Head of Department, to the officer charged and to
the Commission, it shall ensure that its conclusions are verbally
communicated to the parties at a final session held for the
purpose;
(e)
the Head of Department and the officer charged
may, within ten (10) working days starting from the day after the
findings of the Board are communicated to them, make an
appeal to the Commission with respect to such findings, or ask
for an opportunity to make oral representations
Provided that, if the officer charged is liable to
dismissal as a result of the charges, and the Disciplinary Board
has found him guilty of any of the charges, the Commission
shall appoint a date for a hearing during which the officer
charged and the Head of Department and their representatives,
may make oral representations;
(f)
after considering the findings of the Board and
any representations made to it, the Commission shall make its
recommendation to the Prime Minister both as to the guilt or
otherwise of the officer charged and as to the penalty, if any.
Part VII
Offences and Penalties
A broad categorisation of offences and of corresponding
penalties that may be imposed under these regulations on the
recommendation of the Commission, or by a Head of Department to
whom disciplinary control has been delegated in accordance with
article 110 of the Constitution, is listed in the Schedule of Offences
and Penalties
Provided that the penalties applicable to police officers
shall be those set out in articles 31 and 32 of the Police Act.
Part VIII
Appeals from Disciplinary Decisions and Review of past
Recommendations of the Commission
(1)
A public officer shall have a right of appeal to the
Commission in accordance with this regulation against a finding of
guilt and any corresponding penalty imposed by the Head of
Department under regulation 17, or where the officer can prove that
there has been a gross disregard of the procedures laid down in these
regulations and such disregard had prejudiced his interests.
(2)
Notice of appeal under sub-regulation (1), setting out the
grounds of the appeal, shall be communicated, in writing, to the
Executive Secretary of the Commission by not later than ten (10)
working days from the date on which the decision was notified to the
officer concerned. A copy of the notice of appeal shall concurrently be
sent by the officer to the Head of Department.
(3)
On receiving a copy of a notice of appeal, the Head of
Department shall, by not later than five (5) working days, transmit to
the Commission the relevant documentation relating to the case,
including the report of the Disciplinary Board.
(4)
The Executive Secretary of the Commission shall
acknowledge receipt of the notice of appeal made under this regulation
and any appeal received after the time period of ten (10) working days
established in sub-regulation (2) shall not be considered by the
Commission.
(5)
If the Commission is of the opinion that the appeal merits
consideration in terms of sub-regulation (1), it shall give an opportunity
to the officer charged and to the Head of Department to make oral
representations; but the Commission shall otherwise regulate its own
procedure in dealing with the appeal, subject to the applicable
provisions of these regulations.
(6)
The Commission, after considering the grounds for
appeal, the record of the proceedings, and any oral representations,
shall proceed to recommend to the Prime Minister or the Head of the
Public Service, as the case may be, either that he should confirm or
revoke the decision of guilt of the appellant and the penalty imposed, or
that, he should amend the penalty imposed.
(7)
Upon approval of its recommendation, the Commission
shall inform the appellant of the outcome of the appeal.
(8)
Nothing in this regulation shall prevent the Commission,
either before the hearing or at any time during the hearing of an appeal,
from summarily dismissing or disallowing an appeal without hearing it
or without hearing it any further, as the case may be, on the grounds
that an appeal is frivolous or vexatious or one that should not otherwise
have been brought or made.
A penalty imposed by a Head of Department acting under
a delegated authority shall not be put into effect before the lapse of at
least ten (10) working days from the date on which the officer was
notified of the penalty by the Head of Department and, if an appeal has
been lodged, the penalty shall not be put into effect pending a decision
by the Prime Minister or the Head of the Public Service, as the case
may be, acting on the recommendation of the Commission.
(1) A Head of Department who is either dissatisfied with
the proceedings or findings of a Disciplinary Board appointed under
regulation 18 or has proof that there has been a gross disregard of the
procedures laid down in these regulations and such disregard had
prejudiced the case, may appeal to the Commission.
(2)
An appeal under sub-regulation (1) shall be made to the
Executive Secretary of the Commission not later than ten (10) working
days form the date on which the findings of the Board were notified to
the Head of Department. A copy of such an appeal shall concurrently
be sent to the officer by the Head of Department.
(3)
If the Commission is of the opinion that the appeal merits
consideration in terms of sub-regulation (1), it shall give an
opportunity to the officer charged and to the Head of Department to
make oral representations, but the Commission shall otherwise
regulate its own procedure in dealing with the appeal subject to the
applicable provisions of these regulations.
(4)
The Commission, after considering the appeal by the
Head of Department, any documentation related to the proceedings,
and any oral representations, shall make a recommendation to the
Prime Minister or the Head of the Public Service, as the case may be,
as to the guilt or otherwise of the officer charged, with respect to each
of the charges, and the penalty to be imposed, if any.
(1)
Any person who is or has been a public officer
and who had been penalized under these regulations or under the 1977
Regulations or the 1999 Regulations, or the 2017 Regulations,
following a recommendation by the Commission, may petition the
Commission to review his case for the purpose of revoking or
amending the recommendation which the Commission had tendered
against him.
(2)
The petition shall be made in writing and addressed to
the Executive Secretary of the Commission who shall acknowledge
receipt of the petition.
(3)
The Commission shall thereupon send a copy of the
petition to the Prime Minister for any comments he may wish to make
within one (1) month from the receipt of that copy. On the expiration
of that time, the Commission shall thereupon proceed to examine the
petition.
(4)
The Commission may allow a review of the case if
(a)
in its discretion, it is satisfied that there was a
prima facie case of gross disregard of the disciplinary
regulations or a serious miscarriage of justice resulting in a
violation of natural justice or fundamental rights; or
(b)
the case arose from a criminal conviction which
was subsequently annulled or discontinued by a decision of a
higher court.
(5)
The Commission shall not consider a petition under this
regulation if
(a)
the petitioner had already made a similar request
which was rejected on the merits of the case; or
(b)
the recommendation which is subject of the
petition was made by the Commission following an appeal in a
case decided under the authority of a Head of Department; or
(c)
the past recommendation is dated over ten (10)
years before the date of the petition for review.
(6)
In its consideration of a petition under this regulation the
Commission may, at its sole discretion, give the petitioner the
opportunity to make oral representations, and may also seek the views
of the respective Head of Department in writing or orally.
(7)
The Commission shall not allow any new evidence to be
produced in connection with a petition under this regulation unless it is
satisfied that such evidence was unknown or could not be produced
when the petitioner’s case was first heard.
(8)
Having considered a petition under this regulation, the
Commission shall decide whether its original recommendation should
be confirmed, amended or revoked, and it shall make a
recommendation to the Prime Minister accordingly.
(9)
Upon approval of its recommendation the Commission
shall inform the petitioner of the outcome of the petition.
Part IX
Removal from Office
The appointment of a public officer may be terminated
for the following reasons
(a)
for absence without leave; or
(b)
on dismissal or removal in consequence of
criminal or disciplinary proceedings.
(1)
A public officer who absents himself without leave
for ten (10) consecutive working days shall be considered as having
resigned from the public service with effect from the eleventh working
day of unauthorised absence.
(2)
A Head of Department shall, immediately after the
expiration of the time-limit referred to in sub-regulation (1), notify the
officer concerned that
(a)
he considers the officer as having resigned from
the public service with effect from the eleventh day of his
unauthorised absence;
(b)
the officer shall be liable to pay Government, as
stipulated in the Public Service Agreement in force from time to
time, half the salary that he would have earned during the
applicable notice period.
(3)
If an officer who has absented himself without leave as
stated in sub-regulation (1) reports for duty before the date of
notification by the Head of Department, or before the expiration of the
ten (10) working days referred to in sub-regulation (1), he is to be
allowed to resume duties without prejudice to any disciplinary action
which the Head of Department may take in accordance with these
regulations.
(4)
If the officer considers that the decision of the Head of
Department is unjust in his regard, he may appeal to the Public Service
Commission within ten (10) working days, setting out the reasons why
he considers that the decision in his respect was unjust.
(5)
An appeal under sub-regulation (4) shall be treated with
urgency by the Commission. The Commission shall seek the views of
the Head of Department thereon and may, at its discretion, give the
officer concerned and the Head of Department the opportunity to make
oral representations.
(6)
If the Commission considers an appeal under sub-
regulation (4) to be justified, it shall annul the decision of the Head of
Department by means of a recommendation to the Prime Minister or
the Head of the Public Service, as the case may be, and upon approval,
inform the officer and the Head of Department that the officer is, as a
result, considered to be still in employment in the public service.
(7)
An officer who has been considered as having resigned
due to unauthorised absence shall not resume his duties unless and
until the Commission upholds his appeal.
(8)
An officer whose appeal under sub-regulation (4) is
upheld by the Commission shall not be entitled to payment for any
period of unauthorised absence, or for the time taken by the
Commission to hear the appeal.
Part X
Miscellaneous
(1)
When an officer who is undergoing disciplinary
proceedings ceases to be a public officer before such proceedings are
concluded, the Head of Department shall ask the officer charged to
state, in writing, within ten (10) working days, whether he wishes that
the disciplinary proceedings be continued in order that he may have
the opportunity to exculpate himself, or whether he wishes that the
disciplinary proceedings be suspended.
(2)
If the officer opts to continue with the proceedings and
he is eventually found guilty, no penalty shall be imposed, but a record
of the findings of the Disciplinary Board shall be entered in the
officer’s record of service.
(3)
If the officer opts to have the case suspended, he shall
confirm this in writing and a record shall be entered in his record of
service stating that at the time of his leaving the service, the officer had
a pending disciplinary case.
(4)
If the officer does not, within the stipulated time, state
what his preferred option is, the case shall be suspended and a note
entered in his record of service stating that at the time of his leaving the
service, the officer had a pending disciplinary case.
(5)
Should a person who had been found guilty in accordance
with sub-regulation (2) rejoin the public service, whether in the same or
in a different capacity, the Head of Department now responsible for the
officer shall, within three (3) months of the officer rejoining the
service, decide as to whether or not disciplinary proceedings should be
resumed with a view to the imposition of the appropriate disciplinary
penalty; and if the Head of Department decides that proceedings should
be resumed, he shall proceed in accordance with regulation 23 or such
other provision of these regulations as may apply.
(6)
Should a person who has a suspended disciplinary case in
terms of sub-regulations (3) or (4) subsequently rejoin the service,
whether in the same or a different capacity, the Head of Department
now responsible for the officer shall, within three (3) months of the
officer rejoining the service, decide as to whether or not disciplinary
proceedings should be resumed; and if the Head of Department decides
to resume proceedings such proceedings shall resume from the stage
they had reached prior to their being discontinued, save that
(a)
any applicable timeframes shall be deemed to start
from the date that the Head of Department informs the officer in
writing of his decision that the proceedings should be resumed;
and
(b)
unless the Disciplinary Board had presented its
report in the original proceedings, a Disciplinary Board to hear
the case according to the charges laid against the officer in the
original proceedings shall be appointed in terms of regulation
18.
When an officer, against whom criminal proceedings are
pending, ceases to be a public officer before such proceedings are
concluded, or have been concluded but the Commission has not yet
taken action under these regulations, no related disciplinary action in
terms of these regulations may be taken or penalty imposed. However,
the Head of Department shall follow the case so that a record of the
court decision is entered in the officer’s record of service.
Subject to the provisions of article 114 of the
Constitution and of any other law, a public officer who is dismissed
from the service shall forfeit all rights and claims to a pension, gratuity
or other retirement award under the Pensions Ordinance. A public
officer who is dismissed shall also forfeit any rights or claims he
enjoys in regard to statutory leave at the public expense.
No member of the Commission, nor the Executive
Secretary, nor any member of the staff of the Commission, or any
public officer, Board or Authority, charged with powers and functions
under these regulations, nor any other person shall, without the written
permission of the Prime Minister, publish or disclose to any person,
otherwise than in exercise of his official function, the contents of any
document, communication or information whatsoever relating to any
action taken under these regulations which has come to his notice or
knowledge.
Failure to comply with the provisions of this regulation shall, in
the case of a public officer, constitute misconduct and, or a breach of
discipline.
The periods specified in these regulations may, on good
cause being shown, be extended by the Commission provided the
request is made before the expiration of the period in question.
Disciplinary penalties shall remain recorded in the
officer’s records up to the periods identified in Section 6 of the
Schedule of Offences and Penalties, entitled ‘Timeframe for the
retention of disciplinary penalties in personal records’.
(1) The Head of the Public Service, Heads of
Department to whom disciplinary control is delegated, or any other
delegated authority shall submit reports on disciplinary matters to the
Commission with such frequency, and in such form and covering such
matters as the Commission may from time to time direct.
(2)
The Commission may, at its discretion, publish annual
reports on disciplinary matters, as well as reports of inquiries into the
exercise of disciplinary control and other special reports, together with
its remarks on any matter connected therewith or incidental thereto.
(1)
Nothing in these regulations shall prejudice the
applicability of the General Data Protection Regulation and the Data
Protection Act, including the regulations made thereunder, and the
fundamental rights and freedoms of the data subjects.
(2)
The Public Service Commission may restrict the rights
and obligations provided for in articles 14 to 20 and article 34 of the
General Data Protection Regulation, as the case may be, in accordance
with article 23 of the General Data Protection Regulation.
(3)
The restriction under sub-regulation (2) shall only apply
in the event that the restriction is considered as a necessary and
proportionate measure to safeguard the exercise of the investigative
and regulatory functions of the Public Service Commission made in
relation to its deliberations.
(4)
The Data Protection Officer of the Public Service
Commission designated pursuant to article 37 of the General Data
Protection Regulation shall
(a)
be consulted as appropriate in a timely manner in
the entire process of applying the restriction; and
(b)
keep a register to record the restriction applied in
relation to the request made by the data subject, which register
shall include the details of the data subject, the right requested to
be exercised that was restricted and the purpose of such
restriction.
(5)
Where the ground for the restriction as set forth in sub-
regulation (3) shall no longer apply, the Public Service Commission
shall lift the restriction and inform the data subject concerned and
comply with the rights and obligations provided for in articles 14 to 20
and article 34 of the General Data Protection Regulation.
(6)
The Public Service Commission shall review the
application of the restriction referred to in this regulation every year
and depending on the outcome of such review inform the data subject
accordingly.
(7)
The Public Service Commission shall inform the data
subject of the application of the restriction in reply to the request to
exercise any of the rights which are restricted in terms of these
regulations, unless this may be prejudicial to the purpose of the
restriction
Provided that the Public Service Commission shall justify
the prejudice claimed to be suffered to the Information and Data
Protection Commissioner as requested.
(1)
The Public Service Commission Disciplinary
Regulations are hereby revoked, without prejudice to anything done or
omitted to be done thereunder.
(2)
Where disciplinary proceedings or petitions for a review
of a past recommendation of the Commission have been commenced
under and in accordance with the 2017 Regulations and, or the 1999
Regulations (revoked under the 2017 Regulations, and, or the 1977
Regulations (revoked under the 1999 Regulations), such proceedings or
review shall be continued and completed under and in accordance with
the respective regulations as if the said regulations had not been
revoked
Provided that the provisions on disciplinary penalties
which shall apply in the case of such proceedings or review shall be
whichever are most favourable to the officer charged.
Schedule of Offences and Penalties
1. Disciplinary Offences
The offences specified in this Schedule shall be considered as
only illustrative and indicative and are not exhaustive.
Unprofessional or unethical behaviour
1.1
A public officer shall be subject to disciplinary
proceedings for unprofessional or unethical behaviour and, without
prejudice to the generality of the foregoing, such behaviour shall
include
(a)
failure to comply with any laws, rules, regulations
or codes governing specific professions and the Public Service
or the conduct of the public officers, or the transaction of
government business;
(b)
being under the influence of drink or drugs while
on duty;
(c)
immoral, indecent or disgraceful conduct at the
place of work;
(d)
causing damage to government property;
(e)
giving wrong information;
(f)
misuse
of
government
funds,
property
or
equipment;
(g)
theft or embezzlement of government funds,
property or equipment;
(h)
theft, appropriation or misuse of items belonging
to other public officers or members of the public at the place of
work;
(i)
tampering with or misuse of attendance sheets and
records, or any equipment used to record attendance;
(j)
falsification, misuse of or tampering with official
documents or information;
(k)
divulging of secret or confidential information;
(l)
conduct which is liable to discredit the department
or bring the public service into disrepute;
(m) any criminal offence committed by the officer at
his place of work or in the course of his duties, subject to the
provisions of Part IV of these regulations.
Disrespectful behaviour
1.2
A public officer shall be subject to disciplinary
proceedings for behaviour disrespectful to colleagues, superior officers
or the public and, without prejudice to the generality of the foregoing,
such behaviour shall include
(a)
arrogance or insolence towards
colleagues,
superiors, other public officers or the public;
(b)
violent, threatening or intimidating behaviour
towards colleagues, superior officers or the public;
(c)
fighting or causing a disturbance at the place of
work;
(d)
use of foul or offensive language;
(e)
sexual harassment; or
(f)
victimisation of a witness or an officer or other
person lodging a report or doing his duty under these regulations
or any other regulations issued in terms of article 121 of the
Constitution.
Neglect or dereliction of duty
1.3
A public officer shall be subject to disciplinary
proceedings for neglect or dereliction of duty and, without
prejudice to the generality of the foregoing, such behaviour shall
include
(a)
habitual late attendance;
(b)
unauthorised absence from the place of work;
(c)
idling at the place of work;
(d)
feigning incapacity or illness in order to avoid
work;
(e)
negligence in the performance of one’s duties or
shoddy or defective work or work output below standard;
(f)
concealing one’s defective work;
(g)
failure to comply with any lawful and reasonable
order, direction or instruction, whether written or verbal, that is
given by a superior officer or authority;
(h)
failure to exercise proper supervisory functions;
(i)
failure to comply with any provision of any law,
rule, regulation, directive, code or other instrument governing
the public service, the officer’s department, the conduct of
officers of the department, or the transaction of government
business; or
(j)
any other act or omission which is deemed by any
provision of any law, rule, regulation, directive, code, or other
instrument as aforesaid, to be misconduct, misbehaviour, a
breach of or offence against discipline, or another term having a
like meaning.
2. Categorisation of Offences
2.1
Subject to paragraph 3.1 of this Schedule, it shall be at
the discretion of the Head of Department to decide, when taking
disciplinary action against a public officer under these regulations,
whether the charge or charges constitute a minor or a serious offence
or one leading to dismissal taking into account the specific
circumstances surrounding the alleged offence and the actual or
potential consequences thereof.
2.2
Where a provision of any law, rule, regulation, directive,
code, or instrument governing the public service, the officer’s
department, the conduct of officers of the department, or the
transaction of government business states that any act or omission
specified therein is to be regarded as a serious disciplinary offence,
that act or omission shall be so regarded by the Head of Department
for the purposes of paragraph 2.1 of this Schedule.
3. Penalties for Minor Cases
3.1
The penalties that may be imposed following disciplinary
action taken in accordance with these regulations shall be as follows
(a)
First Disciplinary Case - Written Warning
(b)
Second Disciplinary Case - Suspension without pay for a
definite period up to five (5) working days
(c)
Third Disciplinary Case - suspension without pay for a
definite period up to ten (10) working days and a "Warning of
Dismissal" which shall be valid for two (2) years
(d)
Fourth Disciplinary Case - Dismissal.
3.2
In determining whether the disciplinary charge is a first,
second, third or fourth minor case, no account shall be taken of minor
cases which occurred prior to twenty-four (24) months from the date of
the offence under investigation.
3.3
An officer who commits a minor disciplinary offence may
only be dismissed if the offence is committed while he is under a
warning of dismissal arising from a previous minor case, even if this is
not the fourth minor case
Provided that a written warning shall lapse after
twelve (12) months from the date it is issued if no other offence is
committed within that period.
3.4
The application of penalties under this paragraph shall be
subject to the discretion of the Head of Department or the Commission
under regulations 23(1) and (2) and 25, as applicable.
4. Penalties for Serious Cases (including criminal
conviction)
4.1
(a) Suspension without pay for a definite period
not exceeding ten (10) working days, or
(b)
Withholding of increment for a period of not less
than one (1) year and not exceeding three (3) years, or
(c)
Suspension without pay for a definite period not
exceeding fifteen (15) working days and a "Warning of
Dismissal" valid for four (4) years, or
(d)
Dismissal.
4.2
The penalties in paragraph 4.1(a) and (c) may not be
awarded in respect of more than two (2) serious disciplinary cases.
4.3
An officer who is charged with a serious disciplinary
offence while he is under a warning of dismissal shall, as a result, have
such offence categorized by a higher degree, and the officer should be
informed that the case may lead to dismissal, regardless of whether the
warning was imposed following a minor or a serious case or following
proceedings under regulation 15.
4.4
The application of penalties under this paragraph shall be
subject to the discretion of the Head of Department or the Commission
under regulations 23(1) and (2) and 25, as applicable.
4.5
In the case of an officer who had been suspended for
precautionary purposes, the provisions of regulation 12(6) shall also
apply.
5. Penalties imposed on the recommendation of the
Commission
5.1
As an alternative to dismissal, the Commission may
recommend the demotion of the officer charged to a lower grade or
position.
5.2
In the case of a public officer found guilty of a criminal
charge in any court, the Commission may, where appropriate, at its
discretion recommend other penalties in addition to, or instead of those
set out in this Schedule.
6. Timeframe for the retention of disciplinary penalties
in personal records
6.1
Penalties imposed following a recommendation by the
Commission shall remain recorded in an officer’s Personal Records for
ten (10) years from the date a penalty is completed. Penalties imposed
by the Head of Department shall remain recorded in an officer’s
Personal Records for not more than twelve (12) months from the date
that the penalty expires. Any penalty considered as a break in service
shall remain recorded as a break in service after the lapse of the
indicated retention periods.
6.2
A record of penalties in an officer’s Service and Leave
Record Sheet, however, shall be kept for the periods indicated in the
table below
Penalties
Retention period in Service
and Leave Record Sheet
Written Warning
Six (6) months from the date
of penalty
Suspension without pay for a
The duration of the active
number of days
period
of
suspension,
following which the period
shall be recorded as a ‘break in
service’
Warning of dismissal for a
The duration of the period of
number of years
the warning of dismissal.
The period for recording a penalty imposed by the Commission
in cases potentially leading to dismissal or criminal cases, on an
officer’s Service and Leave Record Sheet, shall be determined by the
Commission depending on the nature and gravity of the offence. The
period shall not exceed ten (10) years, unless the officer charged was
placed under an indefinite warning of dismissal, in which case the
penalty would be recorded until the officer concerned reaches 75 years
of age.