DRAFTHand book on Departmental Enquiries References taken from:1. 2. 3. Hand book on Enquiries by Sh L.N. Mishra Dy . Comdt workshop on D.E. by legal branch Dte general Instructions on the subject . INDEX Sl. no 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 14. 15. 16. 17. 18. 19. 20. 21 Subject Definitions Purpose Conduct rules Penalties & procedure for imposing penalties under ccs (cca) rules GOI instructions on departmental proceedings Inquiry officer Presenting officer Disciplinary authority Defence assistant Ex- Parte proceedings Avoiding delay & dilatory tactics Initiation of DE against officers General shortcomings found in DE against officers DO’S & DON’TS Procedure of DE under CRPF rules Procedure of DE under CCS ( CCA ) rules Procedure if Ex- Parte DE Common proceedings Daily order sheet Inquiry report Difference between DE under CRPF rules and CCS(CCA) rules Charge sheet Page no. 1-2 3 4 5-16 17-31 32-39 40-43 44-46 47-51 52-55 56-59 60-61 62-63 64-70 71-77 78-81 82-83 84 84-85 86-87 88-90 90-92 2 22. 23. 24. Model procedure of DE under CRPF rules Order of disciplinary authority Comparison between PE, COI and DE 93-100 101-102 103 3 DEFINITIONS :Section 3 (a) of Departmental Inquiries Act 1972 "Departmental inquiry" means an inquiry held under and in accordance with (i) Any law made by parliament or any rule made there under; or (ii) Any rule made under the proviso to Article 309 or continued under Article 313 of the Constitution of India into any allegation of lack of integrity against any person to whom this Act applies; Section 3 (b): Departmental Inquiries Act 1972— ''Inquiring authority'' means an officer or authority appointed by the Central Government or by any officer or authority, subordinate to that Government to hold a departmental inquiry and includes any officer or authority who is empowered by or under any law or rule for the time being in force to hold such inquiry. Inquiring authority is one who is appointed to inquire into the charges levelled against Govt servant by competent disciplinary authority. He should be fair and unbiased during the proceedings and should rely on only the evidences produced before him. He should not act as Presenting Officer. He is also called Enquiry Officer (E.O/I.O). He has got certain powers and he has to exercise them in a judicial spirit. Though he enjoys his powers as delegate of management (Hazrat Saiyed Shah Vs Commissioner of Wakf AIR 1961 SC 1095) but in discharging his duties and functions he is supposed to be independent and not subordinate to the superior officers who have entrusted him with the enquiry. He is a man of status, unbiased and impartial. Rule 2(g) CCS (CCA) Rules 1965 – “Disciplinary authority” means the authority competent under these rules to impose on a govt. Servant any of the penalties specified in Rule 11.Disciplinary authority in respect of an official is to be determined with reference to his posting at the relevant stage of the disciplinary case and not with reference to his posting and status at the time of commission of the offence. He is 4 competent to take disciplinary action and impose the penalties against the concerned govt servant. There may be different competent disciplinary authority for major & minor penalties. Disciplinary authority for major penalties cannot be lower than the appointing authority. Presenting Officer (P.O) is appointed by disciplinary authority to present the case on behalf of state/disciplinary authority before Inquiry Officer to establish the charge against Govt servant on the basis of 'preponderance of probability' or 'beyond reasonable doubts.' Defence Assistant (D.A) is a person who is willing to help a colleague Govt servant during proceeding. He is true friend of charged official. Charged official appoints him as D.A. Charged Official (C.O) is a Govt servant against whom charge sheet is issued by disciplinary authority. He is known as delinquent/accused also. Prosecution Witness (P.W) is one who is produced by or on behalf of disciplinary authority and relied upon to substantiate the charges against C.O. He is known as State Witness (S.W) also. Defence Witness (D.W) is one who is produced by or on behalf of charged official to defend his case. 5 PURPOSE: The purpose of Departmental Enquiry is to enquire into the truth of the charges levelled against the Govt. servant for alleged disobedience, neglect of duty, remissness in discharge of duty, misconduct or misbehavior done by the alleged person in the capacity of being public servant as such. If the charges are sustained the delinquent may be awarded minor/ major penalties depending on the gravity of offence/misconduct. The Supreme Court held that, “ The only purpose to hold enquiry is to help punishing authority to come to a definite conclusion regarding guilt of the accused. (Venkatramanan Vs UOI, AIR 1954, SC 375) The second aspect of D.E is to observe the mandatory constitutional provisions under clause (2) of Art 311. Under this provision, no person who is a member of civil service of the Union or an All India Service or holds a civil post under the union shall be dismissed or removed or reduced in rank except after an enquiry in which he has to be informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Principle of Natural Justice is also to be kept in mind at all steps during the entire proceedings. Departmental Enquiry is quasi-judicial in nature (SC- UOI Vs HC Goel AIR 1964 SC 364) therefore technical rules of criminal trial do not apply to DE (Joga Rao Vs State AIR 1957 AP-197). Hence, Indian Evidence Act and Criminal Procedure Code do not apply to departmental proceedings. 6 CONDUCT RULES As per the CCS (Conduct) Rules, normally the departmental enquiries against every government servant is initiated on the following three grounds: (i) (ii) failure to maintain absolute integrity, failure to maintain devotion to duty; and (ii) committing of an act which is unbecoming of a government servant. In exceptional circumstances, there may be other grounds like that of a government servant engaging in plural marriage under Rule 21 of CCS(Conduct) Rules. 7 PENALTIES The following penalties may, for good and sufficient reasons and as hereinafter provided, be imposed on a Government servant, namely: Minor Penalties – i) Censure; ii) Withholding of his promotion; iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to the Government by negligence or breach of orders; a) reduction to a lower stage in the time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension. withholding of increments of pay; iv) Major Penaltiesv) save as provided for in clause (iii) (a), reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether or the expiry of such period, the reduction will or will not have the effect of postponing the future increments of his pay; reduction to lower time-scale of pay, grade, post or service which shall ordinarily be a bar to the promotion pf the Government servant to the time-scale of pay, grade, post or service from which he was reduced, with or without further directions regarding conditions of restoration to the grade or post or service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service; compulsory retirement; removal from service which shall ordinarily be a disqualification for future employment under the Government. Dismissal from service which shall ordinarily be a disqualification for future employment under the Govt. vi) vii) viii) ix) 8 Provided that, in every case in which the charge of acceptance from any person of any gratification, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act is established, the penalty mention in clause (viii) or clause (ix) shall be imposed; Provided further that in any exception case and for special reasons recorded in writing, any other penalty may be imposed. PROCEDURE FOR IMPOSING MAJOR PENALTIES UNDER RULE-14 OF CCS (CCA) RULES. 1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this Rule and Rule 15, or in the manner provided by the Public Servants (Inquiries) Act, 1850 (37 of 1850), where such inquiry is held under that Act. 2) Whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against a Government servant, it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants (Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Explanation – Where the disciplinary authority itself holds the inquiry, any reference in sub-rule (7) to sub-rule (20) and in sub-rule (22) to the inquiring authority shall be construed as a reference to disciplinary authority. 9 3) Where it is proposed to hold an inquiry against a Government servant under this rule and Rule 15, the disciplinary authority shall draw up or cause to be drawn upi) the substance of the imputations of misconduct or misbehavior into definite and distinct articles of charge; ii) a statement of the imputations of misconduct or misbehavior in support of each article of charge, which shall containa) a statement of all relevant facts including any admission or confession made by the Government servant; b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained. 4. The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehavior and a list of documents and witnesses by which each article or charges is proposed to be sustained and shall required the Government servant to submit, within such time may be specified, a written statement of his defence and state whether he desires to be heard in person. 5. a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it 10 considers it necessary to do so, appoint under subrule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in Rule 15. b) If no written statement of defence is submitted by the Government servant the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose. c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding any inquiry into such charge, it may, be an order, appoint a Government servant or a legal practitioner, to be known as the ‘Presenting Officer’ to present on its behalf the case in support of the articles of charge. 6. The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority – i) ii) a copy of the articles of charge and the statement of imputations of misconduct or misbehavior; a copy of the written statement of the defence, if any, submitted by the Government servant; 11 iii) iv) a copy of the statements of witnesses, if any, referred to in sub-rule (3); evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant ; and v) a copy of the order appointing the “Presenting Officer”. 7. The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow. 8. a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits: Provided that the Government servant may take the assistance of any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing so permits. 12 NOTE – The Government servant shall not take the assistance of any other Government servant who has (three) pending disciplinary cases on hand in which he has to give assistance b) The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf. 9. If the Government servant who has not admitted any of the or has not articles of charge in his written statement of defence submitted any written statement of defence, appears before the inquiring authority, such authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon. 10. pleads guilty. 11. The inquiring authority shall, if the Government servant fails to The inquiring authority shall return a finding of guilt in Government servant respect of those articles of charge to which the appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence- 13 i) inspect within five days of the order or within such further time not exceeding five days as the inquiring authority may allow, the documents specified in the list referred to in sub-rule (3); ii) submit a list of witnesses to be examined on his behalf; NOTE – If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3). NOTE – The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. 12. The inquiring authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents by such date as may be specified in such requisition: 14 Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case. 13. On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority: Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of documents. 14. On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit. 15. If it shall appear necessary before the close of the case on behalf of the disciplinary authority, the inquiring authority may, in its 15 discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned. The inquiring authority shall give the Government servant an opportunity of inspecting such documents before they are taken on the record. The inquiring authority may also allow the Government servant to produce new evidence, if it is of the opinion that the production of such evidence is necessary, in the interests of justice. NOTE – New evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produced originally. 16. When the case for the disciplinary authority is closed, the If the defence is made orally, it shall be Government servant shall be required to state his defence, orally or in writing, as he may prefer. recorded, and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed. 17. The evidence on behalf of the Government servant shall then The witnesses produced by the Government be produced. The Government servant may examine himself in his own behalf if he so prefers. servant shall then be examined and shall be liable to cross-examination, 16 re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority. 18. The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him. 19. The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed and the Government servant, or permit them to file written briefs of their respective case, if they so desire. 20. If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte. 21. a). Where a disciplinary authority competent to impose any of the penalties specified in clauses (i) to (iv) of Rule 11 (but not competent to impose any of the penalties specified in clauses (v) to (ix) of Rule 11), has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) or Rule 11 should be imposed on the 17 Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties. b). The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interest of justice, recall the witnesses and examine, cross-examine and re-examine the witnesses and may impose on the Government servant such penalty as it may deem fit in accordance with these rules. 22. Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by itself: Provided, that if the succeeding inquiry authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided. (i) After the conclusion of the inquiry, a report shall be prepared and it a) the articles of charges and the statement of the imputations of misconduct or misbehaviour; b) the defence of the Government servant in respect of each article of charge; shall contain- 18 a) b) an assessment of the evidence in respect of each article of charge; the findings on each article of charge and reasons therefore. EXPLANATION – If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record it findings on such article of charge: Provided that the findings on such article of charge shall not be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity of defending himself against such article of charge. ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall includea). b) c) d) the report prepared by it under clause (i); the written statement of defence, if any, submitted by the Government servant; the oral and documentary evidence produced in the course of the inquiry; written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and the orders, if any, made by the disciplinary authority and the inquiring authority 19 GOVERNMENT OF INDIA’S INSTRUCTIONS ON DEPARTMENTAL PROCEEDINGS 1. Whether charges can be dropped at the stage of initial written statement of defence 1. The disciplinary authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government under Rule 14(4) of the CCS (CCA) Rules 1965. 2. The disciplinary authority is not bound to appoint an Inquiry Officer for conducting an enquiry into the charges which are not admitted by the accused official but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with. It may, however, be noted that the exercise of powers to drop the charges after the consideration of the written statement of defence by the accused Government servant will be subject to the following conditions: - 20 a) In cases arising out of investigations by the Central Bureau of Investigation, the CBI should be consulted before a decision is taken to drop any of, or all, the charges on the basis of the written statement of defence submitted by the accused Government servant. The reasons recorded by the disciplinary authority for dropping the charges should also be intimated to the Central Bureau of Investigation. b) The Central Vigilance Commission should be consulted where the disciplinary proceedings were initiated on the advice of the Commission and the intention is to drop or modify any of, or all, the charges on the basis of the written statement of defence submitted by the accused government servant. 2. Whether inquiry is mandatory if charge is not Proceedings initiated under Rule 14 of the CCS (Classification, accepted Control and Appeal) Rules, 1965, cannot be closed by imposing one of the minor penalties after due consideration of the defence submitted by the accused officer. It is obligatory to hold a formal inquiry before coming to a conclusion about the quantum of penalty. 3. What is the procedure for holding ex-parte - enquiry Whenever an official continues to remain absent from duty or overstays leave without permission and his movements are not known, or 21 he fails to reply to official communications, the disciplinary authority may initiate action under Rules 14 of the CCS (CCA) Rules, 1965. In all such cases, the competent authority should, by a Registered A.D. letter addressed to the official at his last known address, issue a charge-sheet in the form prescribed for the purpose and call upon the official to submit a written statement of defence within a reasonable period to be specified by that authority. If the letter is received undelivered or if the letter having been delivered, the official does not submit a written statement of defence on or before the specified date or at a subsequent stage does not appear in person before the inquiry officer, or otherwise, fails to refuses to comply with the provisions of CCS (CCA) Rules, the publication through local papers should be resorted to. Thereafter, the inquiry authority may hold an ex-parte inquiry. The notices of all hearings should be served on the accused or communicated to him unless the first notice says that the inquiry will continue from day to day. In ex parte proceedings, the entire gamut of the enquiry has to be gone through. The notices to witnesses should be sent, the documentary evidences should be produced and marked, the Presenting Officer should examine the prosecution witnesses and the inquiring authority may put such questions to the witnesses as it thinks to be fit. The inquiring authority should record the reasons why he is proceeding ex parte and what steps he had taken to ask the accused official to take part in the enquiry and avail all the opportunities available under the provisions of Rule-14 of the CCS (CCA) Rules. In such a case, the details of what has transpired in his absence, including depositions, should be furnished to the accused officer. 22 During the course of enquiry, the accused is free to put in appearance and participate in the enquiry. If the accused appears in the enquiry when some business has already been transacted, it is not necessary to transact the same business against unless the accused of the Inquiry The competent official is able to give justification to the satisfaction Officer for not participating in the enquiry earlier. authority may, thereafter, proceed to pass the final orders dismissing or removing the official from service after following the prescribed procedure. The procedure outlined above can be observed in the case of a Government servant whether permanent or temporary remaining absent without authority etc. Such a Government servant should not be placed under suspension but when an official who is under suspension disappears and cannot be contacted at his last known address, the suspension orders should be lifted and the proceedings in the manner stated above initiated for his removal in absentia. 4. What is the time limit for appearance of the charged official before the inquiring authority Sub-rule (7) of Rule 14 envisages that the Government servant shall appear in person before the inquiry authority on such day and at such time within 10 working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct and misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding 10 days, as the inquiring authority may allow. It is hereby clarified that the provisions in sub-rule (7) should be read in conjunction with the provisions in the preceding sub-rule (6), 23 according to which the disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority various documents including articles of charge and statement of imputations of misconduct or misbehaviour. The requirement of the Government servant appearing in person before the inquiring authority, on such day and at such time within 10 working days, as laid down in sub-rule (7) is actually with reference to the date of receipt by the inquiring authority (and not the Government servant) of the articles of charge and the statement of the imputations of misconduct or misbehaviour. The need for expeditiously appointing an inquiring authority, wherever necessary, cannot however, be overemphasized. 5. Whether Inquiry Officers should be senior in rank to the officers enquired against The Committee on Subordinate Legislation (Fourth Lok Sabha) have recently examined the question of appointment of inquiry officers to conduct oral inquiry into the charges levelled against delinquent officers under CCS (CCA) Rules, 1965. The Committee has observed that though they agree that may not be possible to entrust always inquiries against delinquent officers to Gazetted Officers, the inquiries should be conducted by an officer who is sufficiently senior to the officer whose conduct is being inquired into, as inquiry by a junior officer cannot command confidence, which it deserves. 6. Whether the Inquiring Authority is competent to issue formal charge sheet – The position, as it emerges, is that an Inquiring authority is not competent to issue a formal charge-sheet to the charged officer, but is 24 only competent to record its findings on any article of the charge different from the original articles of the charge, if the proceedings of the inquiry establish the same, provided that the findings on such article of charge are recorded by the inquiring authority only if the government servant has either admitted the facts on which such articles of charge are based or has had a reasonable opportunity of defending himself against such articles of charge. 7. Can witness function as Inquiry Officer/Presenting Officer An official who may have to appear as a witness in a disciplinary case should not be appointed as the Presenting Officer or Inquiry Officer in that case. 9. Whether intimation should be given to the Controlling Authority of the Government servant assisting the accused – Rule 14 (8) provides that the Government servant against whom disciplinary proceedings have been initiated may take the assistance of any other Government servant to present the case on his behalf. While no permission is needed by the official who is charge-sheeted to secure the assistance of any other Government servant, it is necessary for the latter to obtain the permission of his Controlling Authority to absent himself from office in order to assist the accused Government servant during the enquiry. It would avoid delay in granting such permission, if the Inquiry Officers take the initiative in the matter of informing the Controlling Authority in this regard. 25 It is, therefore, suggested, that as soon as the accused Government servant informs the Inquiry Officer of the name and other particulars of the government servant who has been chosen by him to assist in the presentation of his case, the Inquiry Officer should intimate this fact to the Controlling Authority of the Government servant concerned. Further, the date and time of the hearing should be intimated to the said Controlling Authority sufficiently in advance adding that if, for any compelling reason, it is not practicable to relieve the Government servant concerned on the due date or dates to attend the enquiry, the Inquiry Officer, the accused official and the Government servant chosen for assisting the accused official may be advised well in time. 10.Government servant under suspension eligible to function as defence counsel – A question has been raised whether under the provisions of Rule 14 (8) of the CCS (CCA) Rules, 1965, a Government servant under suspension, is eligible to function as defence counsel, if his services are required by an accused official. The reply to the question is that merely because an official is under suspension does not mean that he has ceased to be a Government servant, and as such, an official under suspension has full right to work as defence assistant. The question was recently examined by the Kerala High Court and it was opined that there is no rule that a person under suspension is not entitled to assist another Government servant in the enquiry proceedings. 26 11. What are the conditions for engaging retired Government servants as defence assistants – It has been decided in terms of Rule 14 (8) (b) of CCS (CCA) Rules, 1965 that assistance of retired Government servants may be taken subject to the following conditions:e) f) The retired Government servant concerned should have retired from service under the Central Government. If the retired Government servant is also a legal practitioner the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, contained in Rule 14 (8) of the CCS (CCA) Rules, 1965, would apply. g) The retired Government servant concerned should not have in any manner, been associated with the case at investigation stage or otherwise in his official capacity. h) The retired Government servant concerned should not act as defence assistant in more than five cases at a time.. The retired Government servant should satisfy the inquiring officer that he does not have more than five cases at hand including the case in question. 12. When is permission to engage practitioner for the defence required - a legal Rule 14 (8) (a) of the CCS (CCA) Rules, 1965, provides inter-alia, that a delinquent Government servant against whom disciplinary proceedings have been instituted as for imposition of a major penalty may not engage a legal practitioner to present the case on his behalf before the Inquiring Authority, unless the Presenting Officer appointed 27 by the Disciplinary Authority is a legal practitioner, or the Disciplinary Authority, having regard to the circumstances of the case, so permits. It is clarified that, when on behalf of the Disciplinary Authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or a Government Law Officer (such as Legal Adviser, Junior Legal Adviser), there are evidently good and sufficient circumstances for the Disciplinary Authority to exercise his discretion in favour of the delinquent officer and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court is arbitrary and prejudicial to the defence of the delinquent Government servant. 13. Whether copies of documents should be supplied to the delinquent official and access should be afforded to official records The question often arises whether a particular document or set of documents asked for by a Government servant involved in a departmental enquiry should be made available to him or nor, and pending the decision on the question, the submission of the written statement by the Government servant concerned is delayed, in some cases for months. In view of this and also of the judgement pronounced by the Supreme Court in Raizada Trilock Nath Vs The Union of India, in which it has been decided that failure to furnish copies of documents such as the First Information Report and statements recorded during investigation amounts to a violation of Article 311( 2) of the Constitution, the whole question of the extent of access to official records to which a Government servant is entitled under the All India Services (Discipline and Appeal) Rules or the Central Civil Services (Classification, Control 28 and Appeal) Rules has been examined in consultation with the Ministry of Law. The right of access to official records is not unlimited and it is open to the Government to deny such access if in its opinion such records are not relevant to the case, or not desirable in the public interest to allow such access. The power to refuse access to official records should, however, be very sparingly exercised. The question of relevancy should be looked at from the point of view of the defence and if there is any possible line of defence to which the document may, in some way, be relevant, thought the relevance is not clear to the Disciplinary Authority at the time that the request is made, the request for access should not be rejected. 14. What measures should be adopted to prevent tampering with records/documents inspection by delinquent officials - during Recently instances have come to notice where the accused officers while inspecting the records/documents, tampered with materially vital documents. In another case, the accused officer tampered with the documents when the Inquiry Officer temporarily left the inquiry room during the course of the inquiry. In order to obviate such incidents – 1) 2) The accused officer should be allowed inspection of documents only in the presence of responsible officer. The I.O. should take sufficient precautions to ensure that the records/documents are not tampered with. 29 15. What are the powers available for enforcement of attendance of witnesses and production of documents at DEs – Section –4 of Enforcement of Attendance of Witnesses and Production of Documents Act 1972 empowers the Central Govt. to authorize the inquiring authority in departmental inquiry to exercise powers specified in Section-5 to Enforce Attendance of Witnesses and Production of Documents. 16. Whether statement of witnesses recorded at the preliminary investigation are to be read out to him and got admitted as evidence On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accord with the principles of natural justice to take on record the statements made by witnesses during the preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness on its being read out to him. It is felt that by adopting this procedure it should be possible to reduce the time taken in conducting departmental inquiries. It has, therefore, been decided that in future, instead of recording the evidence of the prosecution witnesses de novo, wherever it is possible, the statement of a witness already recorded at the preliminary inquiry/investigation may be read out to him at the oral inquiry and if it is admitted by him, the cross-examination of the witness may commence thereafter straightaway. 30 17. Is it the discretion of the Inquiring Authority whether or not to examine the witnesses - An oral enquiry, which the enquiry officer is bound to hold if so requested by the charge-sheeted employee, can very well be regulated by him in his discretion, exercised by him in a judicial manner. If the charge sheeted employee starts cross-examination the departmental witnesses in an irrelevant manner, such cross-examination can be checked and controlled. If the employee desires to examine witnesses whose evidence may appear to the enquiry officer to be thoroughly irrelevant, the inquiry officer may refuse to examine the witness; but in doing so he will have to record his special and sufficient reasons, so that the record would, ex-facie, show that the enquiry officer, in refusing permission, had exercised his discretion in a judicial manner and not in an arbitrary or perfunctory manner. The enquiry officer would then be justified in conducting the enquiry in such a way that its proceedings are not unduly or deliberately prolonged. 18. Is Further cross-examination permissible when witnesses are re-examined Under sub-rule (14) of the CCS (CCA) Rules, 1965, the witnesses produced by or on behalf of the disciplinary authority in a disciplinary proceeding shall be examined by or on behalf of the presenting officer may be cross-examined by or on behalf of the government servant and the presenting officer would also be entitled to re-examine the witnesses on any points on which they have been cross-examined but no on any new matter without the leave of the inquiring authority. 31 If re-examination by the presenting officer is allowed on any new matter not already covered by the earlier examination/crossexamination, a cross-examination on such new matters covered by the re-examination may also be allowed to meet the ends of natural justice. 19. Can disciplinary action be taken in case of refusal to appear as witness - A Government servant cannot refuse to be a witness in an enquiry against another Government servant or against an employee of a Municipal Committee or other local bodies. In case he fails to do so, it can be construed as a sufficient reason for initiating disciplinary proceedings against him. 20. Is the supply of a copy of day-to-day proceedings during the enquiry necessary There should be no objection in supplying copies of the oral statements of witnesses recorded by the Inquiry Officer to the delinquent official, before calling him to make his own statements, if a specific request to this effect is made by the delinquent official before recording of oral statements starts. 21. What is the procedure to be adopted for referring disciplinary cases to UPSC for advice a) Original cases - 32 i) When no enquiry has been held i.e. so far as proceedings under Rule 16 of CCS (CCA) Rules or a corresponding rule are concerned, only the memorandum containing the allegations and the official reply thereto should be sent to the Commission and it shall not be necessary to send a self-contained factual note as a rule. But a note should be sent where clarifications/comments have to be given to explain the points made in the official’s explanation. ii) Where action under Rule 15 (now Rule 14) of the CCS (Classification, Control and Appeal) Rules, 1957 or a corresponding rule has been initiated and an enquiry has been held, but the Government consider in the light of the explanation furnished by the officer and the findings of the Inquiry Officer that there is no need to impose a major penalty, there may not be any need for preparing a self-contained note except where it is necessary to clarify the factual/procedural points in the light of any remarks contained in the enquiry report. iii) Where an enquiry has been held and the Government considers that a major penalty is called for, it will be necessary for the disciplinary authority to record a provisional conclusion regarding the penalty to be imposed. While forwarding the reply of the officer to the show cause notice and the other relevant records to the Commission it will be sufficient in such cases to deal with any factual/procedural points which may have been raised in the officer’s reply to the show cause notice in a separate note which will form part of the record. The note should not, however, discuss the merits of the case and should not record any findings on the charge, or express any opinion regarding the penalty to be imposed on the officer. 33 b) Cases of Appeal - While forwarding an appeal to the Commission there should not be any expression of opinion on the merits of the case, it should, however, be ensured that comments of Disciplinary Authority as required under Rule 29 (now Rule 26) of the CCS (Classification, Control and Appeal) Rules, or a corresponding rule, are invariably sent to the Commission. c) Cases of review on Memorials/Petitions or otherwise - In terms of the provisions of the Union Public Service Commission (Exemption from Constitution) Regulations, the Commission are required to be consulted only when the President proposes to pass an order over-ruling or modifying, after consideration of any petition or memorial or otherwise, an order imposing any of the penalties made by him or by a subordinate authority, or an order imposing any of the penalties in exercise of his powers of review and in modification of an order under which none of the penalties has been imposed. 22. Whether departmental proceedings conducted without timely payment of subsistence allowance is in orderSubsistence allowance is meant for the subsistence of a suspended Government servant and his family during the period as he is not allowed to perform any duty and thereby earn a salary. The Supreme Court has observed that where as Govt. servant under suspension pleaded his inability to attend the inquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex-parte would be in violation of the provisions of Article 311 (2) of the Constitution as 34 the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings. INQUIRY OFFICER WHO MAY BE APPOINTED AS INQUIRY OFFICER The essential requirements 1. Impartial and free from bias - The Inquiry Officer must be a person who is impartial and free from bias. If he has some personal knowledge of the dispute under inquiry then he is in the position of a witness and, therefore, not eligible to act as an inquiry officer. The reason is that such a person, while assessing the evidence will place more reliance on his own information rather than what has been deposed by other witnesses. 2. No likelihood of bias - The Inquiry officer must not be so situated with reference to the matter under inquiry that there is a real likelihood of bias taking place in the final decision. It may be that a person, though personally connected with the matter, ‘may have the most upright motive and may not allow his judicial discretion be impaired by personal interest’, but his conducting the inquiry shall violate the fundamental 35 principle of natural justice that justice should not only be done but should manifestly and undoubtedly be seem to be done. 3. Precise knowledge of rules imperative – The person selected to hold inquiry must be familiar with the rules and procedures governing the subject. The courts have, many a time, tersely commented on the imperative need for the departmental authorities to possess a precise knowledge of the constitutional properties and the rules of procedure and to observe them honestly and efficiently, as their non-acquaintance with such rules and procedures is responsible for causing a rush of writ petitions with the courts. 4. Familiarity with procedures essential - The unfamiliarity with the procedure or inadequate appreciation of the difference between a departmental inquiry and a trial in a criminal court, may lead to overelaboration or lack of firmness in dealing with dilatory tactics. This may contribute to undue delays and faulty disposal of the case. Disciplinary authority himself holding the inquiry It has been held that the principle, a prosecutor cannot be a judge, is not strictly applicable to departmental inquires. The only condition is that he must act with the detachment of a judge, as he is professing to exercise that dignified position. Hence, where the statutory rules so provide, the disciplinary authority may hold the inquiry himself. However, the general practice is, and rightly so, that the inquiry is held by another officer. Appointment of immediate superior of the charged employee as the inquiry officer. The Second Pay Commission had recommended that the disciplinary inquiry should not be conducted by the immediate superior of the employee concerned or by an officer at whose instance the inquiry was initiated. Though there can be no exception to the latter suggestion, the Government did not accept the former one and it was decided that there was no bar to the immediate superior officer holding an inquiry but as a rule, the person who undertakes this task should not be suspected of any bias in such cases. The Government further emphasized that only dis-interested officers should be appointed as the Inquiry officers. 36 Appointment of an outsider as inquiring authority Occasions may arise where the disciplinary authority may consider it appropriate to entrust inquiry to an outsider whom may be a consultant or may be having special qualification or experience in service matters or the particular problem under the inquiry. Sometimes, the charged officer may demand and the disciplinary authority may be agreeable that the inquiry may be held by an impartial outside authority. The principle in this regard is that if the rules specifically provide that a person not belonging to the service concerned or even outsider can be appointed as an inquiry authority, no difficulty shall arise. But, where the rules do not provide for it, an outsider may be appointed as an inquiring authority only after the consent of the employee concerned is obtained and relaxation of the rule is obtained at appropriate level. There is also no objection in making appropriate payments to the persons so appointed for the services rendered. Appointment of whole time inquiry officers Where the volume of the work in connection with departmental inquiries is so large as to justify the appointment of a whole-time officer for the purpose of conducting the departmental inquiries, the question of appointing a whole-time officer, fully trained in conducting disciplinary proceedings, for a department, a group of officers or for a region may be considered. Can the officer who held the preliminary inquiry be appointed to hold the regular inquiry also? Although it is generally avoided but the position in law is that there is no objection to it provided he has not pre-judged the issue. Thus, in a case where the officer while holding the preliminary inquiry had reached prima-facie conclusion only, the holding of regular inquiry by him was upheld by the High Court. On the other hand, where the officer who held the preliminary inquiry pre-judged the issues and his report indicated that he closed his mind, the holding of regular inquiry by him was quashed by the High Court. 37 Accordingly, the inquiry cannot be entrusted to a person i) who is personally interested in the case; were started or ii) at whose instance the disciplinary proceedings against whom the complaint was made; iii) iv) v) vi) vii) who is a witness against the delinquent official; who has any pecuniary interest in the case. who has pre-judged the issues. where there is a close relationship between him and one party. where there was history of personal litigation on seniority matters. On the other hand, where the presence of bias could not otherwise be shown, the following circumstances cannot, ipso facto, lead to a presumption of bias on the part of the inquiring authority, and, hence, holding of inquiry by him would be valid and lawful – i) Where the inquiry officer happens to be a subordinate of the disciplinary authority. ii) The status of the inquiry officer is inferior to that of the disciplinary authority. iii) iv) That he had placed the employee under suspension. That he had issued charge sheet to the employee. The reason is that the principle, a prosecutor cannot be a judge, is not strictly applicable to the departmental inquires, since the disciplinary authority, it is so desires, can hold the inquiry itself also. That he was cited as a defence witness before his appointment as an inquiry officer. That he was the investigating officers or had held the preliminary inquiry. But if he expresses his definite opinion holding the 38 v) vi) delinquent employee guilty of the misconduct attributed to him, he will be disentitled to be appointed as an inquiry officer since he had pre-judged the issue. The rule of necessity When there is only one authority who can conduct proceedings and that authority is biased against the person against whom the proceedings are conducted, the bias will not vitiate the proceedings. But the rule of necessity is not applicable where an alternative authority can be found to conduct the proceedings. Writing of adverse confidential reports is no proof of bias The mere fact that the officer appointed as the inquiring authority had written adverse confidential report of the delinquent employee will not lead to the presumption of bias. The reason is that the opinion expressed in the confidential report was properly report formed by the officer and could not be regarded to be vesting him with bias. REPRESENTATION AGAINST BIAS IN INQUIRING OFFICER Objection must be made at the earliest opportunity The settled position in law is that unless a party can establish its total ignorance of the points of objection at earlier stages, the fact that it has acquiesced in the proceedings, by itself, would lead to the presumption of waiver of the objection by it. Hence, the charged officer should come up with the objection of bias by the earliest. He cannot be allowed to sit on the fence, taking a chance of the tribunal deciding in his favour, and then going to the Court asking for a writ to set aside the order. If he remains silent during the inquiry but makes the objection afterwards, the objection may be dismissed as an after-thought. Procedure for making the representation 39 Since, the appointment of inquiry officer is an order of inter-locutory nature, normally, no appeal lies against such an order. A representation can, however, be made which should be addressed to the Reversionary Authority. The representation should be self-contained one giving full facts and the material on which the charged employees relies. Copies of the representation should be sent to the disciplinary authority and the inquiry officer. Stay of the proceedings The Government of India have decided that whenever an application is moved by a charged officer against the inquiry officer on the grounds of bias, the proceedings should be stayed and the application referred, along with the relevant material, to the appropriate Revisionary authority for considering the application and passing appropriate orders thereon. Fate of inquiry held by a biased officer The proceedings taken by an officer who is biased, or by a tribunal one of whose member is held as biased, would be null and void. Transfer/Retirement of the inquiring authority during the inquiry proceedings Ordinarily, the officer who records findings of the inquiry should be the same officer who recorded the evidence and had thus the occasion to observe demeanour of the witnesses. But, this cannot be said to be an absolute requirement in the departmental inquiries to ensure justice to the charged officer. For administrative reasons, many a time, it may become necessary to change the inquiry officer before the inquiry proceedings are finalized. However, such power should be exercised in unavoidable situations only because it generally has the effect of dislocating the work of inquiry and causing delay. Hence, where the officer holding inquiry retires before completing the work, it may be considered to continue him as an inquiry officer on the payment of suitable fees, provided the rules permit the appointment of an outsider as an inquiry officer. 40 However, no inquiry officer can be appointed to write the report only, after the recording of evidence is already over. In other words, the change in the inquiry officer is permissible only when a part of the evidence is still to be recorded. Even hearing of arguments is not part of inquiry. Should the proceedings start de novo with the change in the inquiry officer There is no such requirement and hence de novo inquiry cannot be claimed as a matter of right, unless some rule specifically provides for it. Hence, if the inquiry officer starts inquiry from where it had been left by its predecessor, the proceedings are not in any way vitiated. The reason is – firstly, the impression, if any, created by any particular witness on the mind of the inquiry officer has to be translated by him into writing; secondly, the inquiry officer is no judge of merits as his report is only for assistance of the disciplinary authority, who has to reach independent conclusions. Rule 14 (22) of the CCS (CCA) Rules 1965, provides that the succeeding inquiry officer shall normally take up the threads from where they were left, but may, in his discretion, recall a witness. Failure to follow proper procedure may expose the erring departmental officer to penal proceedings The inquiry officer must follow the prescribed procedure properly. The Government of India have held that failure to follow proper procedure may lead to institution of disciplinary proceedings against the erring departmental officer and the question of recovery from such authority the whole or part of pecuniary loss arising from the reinstatement of the employee concerned should be considered. Dispute, if any, as to what happened during the course of inquiry The Supreme Court has held that if any dispute arises as to what happened during the course of the inquiry, the statement of the inquiry officer in that regard is generally taken as correct. 41 (Q) CHECKPOINTS FOR ENQUIRY OFFICFR 1) On receipt of papers of DE alongwith office order appointing him as EO, he should call the charged official on a specified date and time, which should be a working day. The proof regarding delivery of such orders should be kept on record. 2) The EO should maintain formal relations with charged official & witnesses; and must not indulge in loose talk. At no stage, he should give his opinion about charges. 3) The brief of proceedings should be given in the order sheet & signatures of the charged official/witnesses should be obtained. 4) All documents must be introduced through the witnesses having custody or who have executed or signed the original documents. They must have knowledge of the documents and be in a position to answer questions in crossexamination pertaining to these documents. 5) The charged official should be explained the charges & he must be specifically asked whether he pleads " Guilty" or " Not -guilty". 6) The charged official must be given opportunity to inspect all documents and take extracts, if required. 7) The charged official must be given an opportunity to crossexamine all witnesses including defence witnesses, if they become hostile. 8) The charged official must be given statutory period of 15 days for filing written statement of defence and list of Defence Witnesses and documents, which he desires to produce in his favour. 9) If charged official doesn't file written statement he should be examined by enquiry officer. 10) The report must discuss the evidence on record & nothing from own knowledge be reflected in it. The EO must not recommend the punishment, which the charged official deserves. The report should be based purely on evidence on record. 11) If charged official misbehaves during the enquiry, this may be reflected in the order sheet. Sometimes, he may not agree to sign the statement of any witness recorded in his presence. In such cases the fact may be brought on record and signature of other officials (like writers, steno etc.) present at that time should be obtained. 42 12) The delivered or undelivered letters, envelopes, endorsement of postal authorities pertaining to correspondence should be kept on record to establish delivery, non acceptance of letter. PRESENTING OFFICER Role of the Presenting Officer By their very nature, the departmental inquiries cannot be equated with proceeding before the courts of law. The inquiring authority is not a court and the presenting officer is not a public prosecutor. Such inquiries are basically fact-finding exercises. Hence, the proper role for the presenting officer is to assist, to the best of ability, the inquiring authority to reach the truth, by presenting before him the case of the disciplinary authority in its correct perspective. Functions of the presenting officer The primary function of the presenting officer is to marshal facts before the inquiry officer and to examine and cross-examine the witnesses produced during the inquiry. Thus, he should- 43 i) ii) iii) iv) v) assist the inquiry officer during the preliminary hearing to sort out the preliminaries; produce the listed documents before the inquiry officer and prove the disputed documents by examining the relevant official witness (s); lead, in a logical manner, the oral evidence before the inquiry officer in support of the charge; cross-examine effectively the witnesses produced by the defence; and argue the case orally after all evidence has been recorded or submit his written brief, with a copy to the charged officer. GUIDELINES FOR THE PRESENTING OFFICER The aim of the inquiry officer, presenting officer and the defence assistant is to bring out truth so that justice is secured to the charged employee. In order to achieve this aim, the presenting officer must act fairly and present the case in its true colour. 1) He should examine properly his order of appointment and that of the inquiry officer to satisfy himself that there is no legal flaw and that the orders have been attested by an authority competent to authenticate them. A useful hint to this regard is that in case these orders are signed by the authority who had issued the charge sheet, they are normally, in order; He should have discussion with the investigating officer and also have a look on the report of preliminary inquiry along with connected records to get first hand knowledge of the case (it may be pointed out that this exercise is to enable him to get first hand knowledge of the case only. 2) 44 The report of preliminary inquiry cannot be used during the course of inquiry); 3) He should examine all documents to be produced in support of articles of charge and to arrange for proof of the documents, which the charged employee does not admit to be correct and, hence, would need to b proved; a. He should acquaint himself fully with the departmental rules and the technical aspects of the issues in dispute; b. He should remember that on the first day of regular hearing, the various documents will be marked as exhibits and taken over by the inquiry officer. For the purpose, he must be ready with such documents duly detached and separated from the main files, and arranged in proper sequence. It will save, not only time of the court, but also himself from a lot of embarrassment. c. He should be polite towards the charged employee and the defence witnesses and should not lose their sympathy; d. He should refrain from attacking character of the charged employee unless it becomes absolutely unavoidable due to exigencies of the case; e. He should before-hand decided what aspects of the case he wishes to be borne out by which witness (es) so that in the examination-in-chief, he can restrict evidence of each prosecution witness to the fact best known to him. He should not examine him on other points, which though exist in his knowledge, do not depend upon his f. He should decide the proper sequence in which he wishes to examine his witnesses. It is not essential for him either to examine all the witnesses listed in the charge sheet or to examine them in the order in which they are mentioned therein. The presenting officer may examine them in the order he thinks best in the interest of presentation of the case. He may dispense with needless witnesses. g. It shall be best for him to examine his witnesses in a logical sequence i.e, a witness whose evidence pertains to the earliest part of the prosecution story should be examined first, and so 45 on. It shall help him to unfold the story in a proper sequence. The moment he feels that enough evidence has been brought on record to prove the charge against the delinquent employee, he may drop the remaining witnesses and close his case; h. However, he must take care to lead all evidence at the proper time because to recall a witness or to introduce fresh evidence is a difficult process and can be resorted to only when there is an inherent lacuna in the evidence already recorded and, that too, with permission of the inquiry officer. But, should it become necessary, he may make a request, giving his reasons, after he has produced all other evidence and the recording of defence evidence is yet to being; i. He should examine the investing officer as the last witness and, that also, if necessary; j. He must follow the cross-examination of his witnesses carefully and to re-examine them to clarify any important point, or to put the records straight, in deserving cases; k. He should remember that re-examination has a limited role only as pointed out above. We know a number of cases in which reckless re-examination resulted in spoiling effectiveness of the witness which had been built earlier. Proper care must, therefore, be taken; l. He must satisfy himself about trust-worthiness of the defence witnesses before their examination begins; m. He must cross-examine the defence witnesses ably and tactfully to bring out truth and to expose hollowness of their testimony, where necessary. He may discredit them by impeaching their trust-worthiness; n. At the close of inquiry, sum up arguments or file a written brief. He must understand that since the burden of proof is on the prosecution, he should be able to show, with reference to the documentary and oral evidence produced during the inquiry, that the articles of charge have been proved substantially; o. He should take care that his written brief is based only on the evidence adduced during the course of inquiry. He should avoid reference to any extraneous matter. Any reference to a document, or attaching it with the written brief, which was not 46 allowed during the inquiry must be avoided. The inquiry officer, invariably get annoyed by such short practice. DISCIPLINARY AUTHORITY An authority is a disciplinary authority who is competent to impose penalties on any particular employee according to disciplinary rules. Therefore, it is essential to refer to relevant rules, which are applicable to the employee to locate the disciplinary authority. For example if DE is to be ordered against a member of force under CRPF Rules 1955. To order DE under different rules to which employee is not subject to is a procedural irregularity. There can be different disciplinary authority for major and minor punishments. DO's & DON'Ts FOR DISCIPLINARY AUTHORITY i. ii. The disciplinary authority or other authority must satisfy him that he is the competent authority as per rules to award the punishment after completion of DE. The charge sheet must contain full particulars of charge, which the employee is required to explain. The oral or documentary evidence on which the charge is based should be disclosed to the employee. 47 iii. iv. v. The charge sheet must be delivered to the employees concerned and he should be given time to submit reply as per Rules. Evidence of the sheet having been served on the Charged Officer should be kept on record. After receipt of reply to the Charge Sheet it should be considered by the Disciplinary Authority and, if necessary, drop the charges. If the reply is found unsatisfactory, the enquiry officer should be appointed. The Enquiry Officer should be unbiased and impartial person. If the charged official makes a representation against the appointment of a particular officer as EO, it must be considered and decision must be taken on merit. If charged official wants leave to defend himself or to arrange for his defence, it must be allowed in all fairness. After receipt of DE proceedings on completion, it must be scrutinised by the Disciplinary Authority as to whether the findings of Enquiry Officer are based on record and flow logically out of it. If Disciplinary authority feels that the findings are not backed by evidence on record, he can record his own finding and supply copy of findings of EO to charged official alongwith the endorsement that the disciplinary authority will take a suitable decision after considering the report & submission or representation made by the charged official. The final order issued by the disciplinary authority must be a speaking order containing reasons for conclusions arrived at. The disciplinary authority has to apply his mind on the point of award of punishment. The punishment should commensurate with the gravity of misconduct. Where the statutory procedure for holding DE has not been followed by the EO resulting in failure of justice, de-novo enquiry can be ordered by the disciplinary authority from the point where the enquiry has been vitiated. vi. vii. viii. ix. CHECK POINTS FOR DISCIPLINARY AUTHORITY 48 1. Preliminary Enquiry or Court of Inquiry must be ordered to gather evidence so as to take decision whether D.E. is to be ordered or otherwise. 2. To analyse the evidence available before framing charges if accusation is serious enough to warrant a D.E. 3. Framing of proper charges by appropriate disciplinary authority competent to impose punishment as per disciplinary rules applicable to the Govt. Servant. 4. Delivery of charge sheet to charged official and requiring him to submit reply to disciplinary authority in a given time, evidence of this effect should be kept. 5. Considering the reply and to drop the charge(s) if reply is convincing or to appoint Enquiry Officer to proceed with D.E. if the reply is not convincing. 6. It must be kept in mind that the E.O. is impartial and unbiased person and not interested in either of the parties in D.E. 7. The disciplinary authority has to consider to change the E.O. if requested by charged official, in case, reasons given are convincing. 8. When proceedings are received after completion of D.E., the disciplinary authority should carefully scrutinise the proceedings. If some material procedural defects are found de-novo Enquiry may be ordered otherwise appropriate orders should be passed. 9. The order so passed must be speaking explaining reasons for such conclusions. The punishment should commensurate with the misconduct. 49 DEFENCE OFFICER ASSISTANCE TO THE CHARGED In departmental inquiries, the charged officer is entitled to the right to defence assistance of his choice, of course, within certain statutory limits. This right of defence assistance flows not only from the statutory rules governing various services, but also from the principles of natural justice. Defence assistance from a fellow employee 1. Who can render assistance - The normal practice is that a charged employee can take defence assistance from a fellow employee. In the case of Government servant, defence assistance can be taken from any other Government servant, which term should be interpreted liberally to include all employees of the Union Government in case of the Central Government employee. However, as held by the Supreme Court there is no right of defence assistance from a particular employee. 2. No personal bars - The status in employment of the employee or his academic attainments are no bar to his assisting any other 50 employee in the inquiry. Since an employee under suspension does not lose his status in employment, he also remains eligible to render defence assistance. The pendency of departmental proceedings are also no bar for the purpose. 3. Restrictions - The Government of India have put some restrictions on their employees rendering defence assistance, Firstly, a Government servant cannot have more than three cases on hand in which he may be rendering defence assistance; and Secondly, he must be posted in any office either at the headquarters of the charged employee or the place where inquiry is held. This condition is relaxable in suitable cases, for the reasons to be recorded in writing, by the inquiry officer. The charged officer can make a representation against the refusal by the inquiry officer to the disciplinary authority, but no appeal shall lie against the order of the disciplinary authority, as the order will be in the nature of step-in-aid in the inquiry. Assistance by Retired Government servant The Government of India has allowed their retired employees to render defence assistance in departmental inquires. There are no restrictions on them as regards the period after retirement in which they can render such assistance or the number of cases, which may be handled at a time. Still there are two bars. These are i) If a retired Government servant is also a legal practitioner, the provisions relating to legal practitioners shall apply to him. ii) In case the retired Government servant is one who has in any manner been associated with the case at investigation stage or otherwise in his official capacity, he becomes ineligible to render defence assistance in that case. Approval of the Disciplinary authority not required Where the rules do not require it specifically, the charged officer need not submit the name of his defence assistant for approval of the disciplinary authority. Most of the disciplinary rules do not contain any such requirement. 51 Permission of the Controlling authority Although the rules do not require that a person should obtain permission of his controlling authority to render defence assistance in a disciplinary case, since such proceedings are held during office hours, the Government servant concerned has to obtain permission of his controlling authority to be absent from the place of duty. The controlling authority can if necessary in public interest refuse to grant such permission. The Supreme Court has held that such refusal of permission shall not be construed as denying to the charged officer a reasonable opportunity to defence because he remains free to select some other government servant of his choice, particularly when the field of choice is quite wide. Defence Assistance by a Legal Practitioner Keeping in view the domestic nature of departmental inquiries, professional lawyers are not, normally, allowed to assist the either party in conducting the proceeding. The Charged Officer cannot claim such assistance as a matter of right. But this general rule is subject to two exceptions, namely, Firstly, if the presenting officer appointed by the disciplinary authority is a legal practitioner the charged officer can also, as a matter of right, avail himself of the services of a legal practitioner. Secondly, the disciplinary authority may itself, in deserving cases, permit the charged officer to engaged a legal practitioner. Such permission may be granted in exceptional cases of complicated nature or having legal over-tones. The Supreme Court has held that if on the facts and complexity of a particular case the assistance of a legal practitioner is considered to be part of the reasonable opportunity, then denial of permission to engage a legal practitioner shall be violative alike of the Constitution provisions in Article 311 (2), and the Principles of Natural Justice. Three situations pointed out by the Supreme Court in which the permission to engage a legal practitioner shall be justified. If the presenting officer, though not a legal practitioner, is a Public Prosecutor of the CBI or the Local administration, the permission should not be refused. This position clearly emerged from the judgement of the Supreme Court. 52 The permission should not also be refused where a legally trained departmental officer such as the Legal Adviser or Law Officer is appointed as the presenting officer and thus the scales tilt in favour of the Organization. The reason is that the employers have now on their pay rolls labour officers, legal advisers, lawyers, who, in the garb of employees may be appointed as presenting-cum-prosecuting officers and the delinquent employee is pitted against such legally trained persons. In a recent judgement Personnel and Administration stated to be a man of law practitioner was refused, the natural justice were violated. where the presenting officer was the Manager of the Organization who was but the permission to engage a legal Supreme Court held that principles of Factors to be taken into account while considering request for permission to engage legal practitioner • While considering a request for permission to engage a legal practitioner, the key word is the requirements of fair inquiry. In other words, permission should not be refused where the defence of the charged employee is likely to be prejudiced by such refusal. It means that the matter must receive an objective consideration of the disciplinary authority. He should apply his mind to all relevant circumstances before a decision is reached. The factors to be taken into account are given below. If the presenting officer is a legal practitioner, permission cannot be refused. In fact, in such cases the employee can avail of legal assistance as a matter of right. Permission should normally be granted in the three situations mentioned in the earlier paragraph. The facts to be taken into account are the nature of the accusations against the employee, the documentary and oral evidence to be examined during the course of inquiry, the status and qualifications of the presenting officer and personal qualifications, attainments, ability and capacity of the charged officer to defend himself. The permission should not be refused where judicial aspects dominate and legal technicalities are involved. However, the disciplinary authority will be perfectly justified to refuse permission where no complicated issues are involved. • • • 53 • But, the personal qualifications or ability of the charged officer, though a relevant factor, cannot be the sole ground to refuse permission, where it is otherwise justified on the facts and circumstances of the case. Charged employee to be informed of his right to proper defence assistance? The Supreme Court has observed that the justice and fair play demand that the disciplinary authority at the time of the appointment of the presenting officer or in any case, the inquiry officer before he begins the inquiry should ascertain from the charged officer, particularly when he is a low-placed employee, whether he would like to engage someone to defend him. The position of the rules and his rights there under should be brought to his notice. If the charged employee is not so informed and an overall view of the inquiry shows that he was at a comparative disadvantage as compared to the disciplinary authority represented by the presenting officer, then, unless is shown that he had not suffered any prejudice, the inquiry shall stand vitiated. Can Defence assistant continue with the proceedings in the absence of the charged officer? The normal practice is that the inquiry is held in the presence of the charged employee. His defence assistant may be there to help him. However, in exceptional circumstances, there appears to be no objection in the inquiry officer permitting a duly authorised defence assistant to continue with the proceedings in the absence of the charged employee. But, at best it has to be a temporary arrangement in the very nature of the things. Can Defence assistant appear as a witness? There is no bar in examining the defence assistant as a witness also, where the inquiring authority considers his evidence to be relevant to the facts of the case. 54 (note:- as per instructions contained in CO /2006 defence assistant can be taken by the delinquent in DE under CRPF Act) EX-PARTE PROCEEDINGS There are occasions when the charged employee fails, omits or refuse to be present during inquiry proceedings, despite proper notice to him. How should the inquiry officer proceed in such a situation? What are the provisions of rules and law, and the practice in this regard? How should the inquiry officer evaluate the evidence collected by him in exparte proceedings? Three important points There are three important factors having a bearing on the holding of ex-parte proceedings. i) The charged employee must attend the hearings personally 55 Unlike the courts of law, the personal attendance of the charged employee is mandatory in departmental inquiries. He cannot be represented through an attorney or an agent. In this connection attention is invited to sub-rule (7) of Rule 14 of the CCS (CCA) Rules, 1965, extracted below – “14 (7). The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by him of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by a notice in writing, specify in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow.” ii) Inquiry officer can proceed ex-parte only if the charge sheet has been delivered Ex-parte proceedings cannot be held unless it is established that the charge sheet had been delivered to the delinquent official. On this point, Rule 14 (20) of the CCS (CCA) Rules, 1965 makes very clear provision“14(20). If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte.” The inquiring authority has, therefore, no jurisdiction to proceed ex-parte if the charge sheet has not been delivered to the charged employee. iii) Natural justice has its limits too The law requires that an accused employee must be afforded a reasonable opportunity to be heard. But, once it is done, he cannot be allowed to stultify the inquiry by non-co-operation, without sufficient cause. No doubt, in quasi-judicial proceedings, hearing one party in the absence of the other shall violate the principles of natural justice but a party may lose this right by improper conduct. 56 There are cases on record where the employees withdrew themselves from inquiry on flimsy grounds, as if “running from pillar to post to find out some accuse to justify their non-co-operation”(H.C. Sarin Vs. Union of India, AIR 1976 SC 1686). In this case, the Supreme Court observed – “It is found more often than not that Government servants who have no real defence to take against the accusations are advised, and sometimes not without success, to non-co-operate with the inquiry. It seems to us that this was one such case.” Guidelines for the Inquiry Officer when to proceed ex-parte The non co-operation of the charged employee with the inquiry officer may take either of the following three shapes: i) Not attending the inquiry proceedings at all; ii) Attending the proceedings but not co-operating; or iii) Attending but creating obstructions and hurdles in the proceedings. While in the case at (ii) and (iii) above, ex-parte proceedings shall normally be justified as a strict approach is necessary for the smooth running of inquiry, in cases covered by (i) above, the inquiry officers are advised to proceed ex-parte cautiously and only where they find that the failure of the employee to be present is deliberate and without justification. ILLUSTRATIONS To illustrate, in the following circumstances, it was held that the holding of proceedings ex-parte was justified: i) where the charged employee did not appear bore the inquiry officer on the dates fixed for the purpose although inquiry was adjourned several times. ii) where he asked for mercy without adducing any evidence. 57 iii) where he declined to take part in the proceedings and failed to remain present. iv) where though, in terms, he did not refuse to participate, his conduct amounted to declining to take part in the proceedings . v) where he intended or attempted to stultify the inquiry and his attitude was of complete non-co-operation. vi) where intimations were sent to the charged officer at every stage of inquiry but he failed to be present. Even the show cause notice against the proposed penalty, enclosing the report of inquiry, sent by registered post was received back as refused. vii) where the applicant failed to be present on the date of hearing of which he had due notice. The Tribunal found that the telegram intimating his illness was addressed to some other officer and the latter sent to the inquiry officer was received only the next day when the proceedings had been finalized. The Tribunal observed there was nothing in the rules to prohibit the inquiry being completed on the same day. vii) where the attitude of the charged employee was of noncooperation. He refused to submit explanation to the charge sheet. Thirteen hearings were held in which, a number of times, he or his defence assistant were absent. The holding of hearings ex-parte was held valid by the Tribunal. On the other hand, the holding of inquiry ex-parte was set aside, as being unjustified – i) the applicant was transferred from Cannanore to Pune where he did not join. The proceedings were taken up at Pune, which he did not attend due to ill-health and financial stringency. The action of the inquiry officer of holding inquiry at Pune was held unjustified. ii) where a medical certificate of his illness was filed on the third hearing requesting for adjournment, but the inquiry officer, proceeded ex-parte. iii) where the employee who was under suspension and he not been paid his subsistence allowance for nine months expressed his inability to attend the inquiry held at a place about 500 kms away, due to paucity of funds. However,, this does not mean that the delay or non-payment of subsistence allowance shall always have the effect of vitiating the inquiry. In R.B. Subrahmanyan Vs UOI, SLJ (1988) 1 CAT 253, the 58 petitioner had not participated in the inquiry held at the same place. The delay of about two and a half months in payment of subsistence allowance was held as not to effect the position. iv) where a part of inquiry had been held but before the next date of hearing, the inquiry officer received a letter from the accused in which certain allegations were levelled against him. The inquiry officer thereon closed the inquiry and proceeded to write the report. The Tribunal held that the inquiry officer should have continued with the inquiry according to the schedule already laid down. v) where a petition alleging bias of the inquiry officer was pending with the competent departmental authority but the inquiry officer continued with the proceedings, though he had the due notice. Further, the inquiry officer rushed through the case, ex-parte, ignoring the medical certificate issued by Dr. Ram Manohar Lohia Hospital, New Delhi. Procedural requirements in ex-parte proceedings Even in a ex-parte proceedings the various provisions of the statutory rules prescribing procedural requirements have to be complied with. An ex-parte proceeding shall not, Ipso facto, mean that the charged employee is in fact guilty. Nor does it give discretion to the inquiry office to hold inquiry as he likes and in violation of the procedure rules. For instance, the ex-parte proceedings were held vitiated, because – i) lists of documents and witnesses supplied along with charge sheet did not mention some of the documents and witnesses relied upon by the inquiry officer; ii) an order for inspection of documents was not passed by the inquiry officer, and iii) fresh notice of production of new evidence as required in the rules (Rule 14 (15) of the CCS (CCA) Rules, 1965 was not issued. Even in ex-parte proceedings, an inquiry officer is duty bound to – i) call upon the presenting officer to present the evidence by which he proposes to prove the articles of charge. 59 ii) pass an order asking the charged employee to inspect the documents in support of the charges and also to submit his list of defence documents and witnesses. iii) fix dates for regular hearings and send intimation to the charged employee. In some exceptional case where it is not possible to communicate with him through regular channels, a notice for ex-parte proceedings indicating the date of hearing may be published in the Gazette or any local paper. iv) examine the witnesses himself during the inquiry proceedings and test their veracity in the absence of the delinquent officials. In the absence of the witness, the statement recorded in preliminary inquiry cannot be relied upon even in ex-parte proceedings. v) allow the charged officer to participate in the proceedings at any stage but it shall not be necessary to repeat the proceeding already taken lawfully. However, if he so desires, copies of the depositions of witnesses examined in his absence may be supplied to AVOIDING DELAYS AND DILATORY TACTICS Delays are the bane of disciplinary proceedings. The object of domestic inquiry is speedy disposal in conformity with fairplay. It is, therefore, the duty of the inquiry officer, the presenting officer, the charged employee, and his defence assistant to make every effort to cut all delays and contribute to the speedy final disposal of the inquiry. There may be delays – (i) which can be avoided by the inquiry officer, and (ii) delays due to dilatory tactics adopted by the charged employee. Delays to be avoided by the Inquiry Officer 1. The Preliminary Hearing. On receipt of the order of his appointment as inquiry officer, and the connected papers, the inquiry officer should lose no time to fix up the date of preliminary hearing. This does not present any difficulty as the object of the hearing is just to sort out certain preliminaries, and even though the incident giving rise to 60 the misconduct might have happened at some other place, the inquiry officer, if he so desires, can hold the preliminary hearing in his own office conveniently. Further, the preliminary hearing should not be delayed for the only reason that the charged employee has not been able to arrange for defence assistance. 2. Inspection of documents. Every effort should be made to stick to the time limits prescribed in the rules, as explained in the previous chapter. Any delay in deciding the relevance of additional documents and requisitioning them should also be avoided. The matter has to pursued vigorously to avoid any possibly delay A major cause of delay in procuring additional documents is the irregular action of the inquiry officer to put the burden of collecting these documents on the presenting officer. 3. Defence assistance - As soon as the particulars of the proposed defence assistant are received from the charged employee, no time should be wasted in getting in touch with his controlling authority so that he is relieved to attend the hearings, on schedule. The controlling authority may be contacted through an official letter following by persona contact, where necessary. 4. Regular hearings - The regular hearings should be held on dayto-day basis, and completed expeditiously. Unnecessary adjournments must be avoided at all costs. To avoid delays, the witnesses should be informed about the date and time when their presence is required, much in advance: an intimation also being sent to their controlling authorities to ensure their presence. Sometimes, especially when common proceedings are being held at some place not easy of access, delays occur in sending intimations to the charged employee and/or their defence assistants who may be working in different projects or offices. To avoid delay in such cases, it is suggested that the inquiry may be held by an officer at the headquarters where courier service is generally available to all the projects. 5. Absence of inquiry officer himself - After a date of hearing is fixed by the inquiry officer and intimations are sent out, the inquiry officer should make it a point to attend it. If, for some personal reasons, it is not possible for him to be present, necessary information should be sent without delay. There is no procedure for the inquiry officer to delegate his functions of holding the inquiry to somebody else. In one case where the inquiry officer was absent on the first date of hearing but on third hearing refused to adjourn though a medical certificate was 61 submitted, the CAT observed that another chance should have been given to the petitioner. 6. Written briefs - A prescribing a time schedule within which written briefs must be held. The inquiry officer should make it a point to make an order for submission of the written briefs by both the parties. 7. The report of inquiry - The report of inquiry must be written and submitted expeditiously. An inordinate delay in submission of the report will not only neutralize all the good steps taken by him during the course of inquiry to expedite the proceedings but may also vitiate the proceedings in certain situations, for instance, where the delay is too long. In one case where the inquiry officer had rejected the request for adjournment to examine some witnesses because sufficient adjournment for the purpose had already been granted, but himself took two months to submit his report, it was held that the refusal to adjourn was not justified. Since delays are very harmful to the charged employee, he should be watchful and represent against any unreasonable delay, to the inquiry officer/disciplinary authority. Dilatory Tactics by the Charged Officer 1. Representation against bias in the inquiry officer - Though the inquiry proceedings have to be stayed during the process of such a representation, no time should be wasted to resume the proceedings, if it gets rejected. 2. Preliminary hearing - The preliminary hearing should not be postponed for the only reason that the charged employee has not been able to arrange for his defence assistance. He had sufficient notice of the preliminary hearing, so if he comes up with a defence assistant, well and good; otherwise the nature of work to be transacted in the preliminary hearing is such that the defence of the employee will not be prejudiced in the absence of the defence assistant. 3. Inspection of documents - The delay may be caused at this stage, by the delinquent employee, by not giving full particulars of the documents he wishes to inspect for his defence or not indicating their 62 relevance to his case, in sufficient detail. To avoid such delays, we would suggest that in the preliminary hearing itself the position should be made clear to the charged employee that he must come up with full particulars and adequate mention of relevance in his list of defence documents, in the absence of which the documents will not be requisitioned and no further time will be granted. 4. Defence assistance - The usual dilatory tactic is that the charged employee furnishes particulars of the defence assistant without actually consulting him or without making sure that he will be relieved for the purpose. To avoid this tactic, at the time accepting particulars of the proposed defence assistant, the inquiry officer should insist upon a certificate from the person concerned to the effect that he is willing to render defence assistance and he does not anticipate any difficulty in his being relieved for the purpose. This position should also be made clear to him in the preliminary hearing itself. It is no doubt true that the charged employee is entitled to defence assistance of his choice but the facility cannot be allowed to be converted by him in an interminable process of delay or adjournments. 5. The regular hearings - The golden advice to avoid all dilatory tactics during the course of regular hearings is ‘Be reasonable but firm’. A cantankerous employee may try to hamper proceedings by asking for adjournments on flimsy grounds. The inquiry officer should deal with each such objection on its merits and take quick decisions. Once a decision is taken, he should be firm in enforcing it. It may be mentioned there that no appeal against an order of the inquiry officer made during the course of inquiry. 6. Written Briefs - The inquiry officer should stick to the prescribed dates firmly. But, it shall be possible only if he himself does not cause undue delay in writing and submission of his report. 7. Resort to court proceedings - The inquiry proceedings need not be stayed for the only reason that the charged employee has approached a court or filed an application before the CAT. The proceedings should be stayed only if a stay order has been granted. 63 PROCEDURE FOR INITIATION OF DEPARTMENTAL INQUIRY IN RESPECT OF CRPF OFFICERS. 1. On receipt of a report or a preliminary inquiry from the Sector IGP in respect of a particular misconduct, the same is examined in the Directorate and put up to DG for deciding whether minor penalty proceedings is required or a major penalty proceedings is called for. 2. Once DG takes a decision for major/minor proceedings, the necessary charges/imputation of charge is prepared under Rule-14/16 for major/minor penalty proceedings. 3. The proposal is sent to MHA for approval of the competent authority/Minister Incharge on the question whether minor 64 penalty proceedings is called for or major penalty proceedings is to be initiated. 4. This procedure is followed in a normal misconduct where administrative/technical lapses are involved. 5. Where the misconduct is on the count of corruption, lack of integrity or an element of vigilance, in those cases the procedure followed is as under: a) The proposal from Directorate is sent to MHA for initiation of major penalty proceedings. b) MHA after examination of the proposal send it to CVC for their advice/opinion whether to go in for major penalty proceedings or minor penalty proceedings. This is known as first stage advice of CVC. c) On the basis of advice of CVC, the necessary enquiry is conducted. d) Once the enquiry is completed, normally the report of the Inquiry Officer in case agreed to by the Directorate is sent to MHA for forwarding it to UPSC for their advice and as per the advice of the UPSC, necessary action is taken. In case the advice tendered by UPSC is not agreed to, MHA again sends back the case to UPSC for re-consideration. In case, UPSC still maintains its decision, then the matter is sent to DOPT for final decision. e) In the cases involving vigilance the report of the Inquiry Officer is sent to MHA who in turn forward it to CVC with 65 their recommendations. advice of CVC. This is known as second stage The advice of the CVC along with Inquiry Officer’s report is sent to the Charged Officer for his representation, if any, and on receipt of the representation, the case is moved to MHA for advice of UPSC and further action is taken as per advice of UPSC. f) In case the advice tendered by CVC and UPSC are contrary, the file is sent to DOPT for final decision. MAJOR SHORTCOMINGS NOTICED IN DEPARTMENTAL ENQUIRIES CONDUCTED AGAINST GOs 1. The proceedings are not arranged as per instructions communicated vide para 9(xxiii) of the Handbook of Disciplinary proceedings against GOs, CRPF. 2. Instead of placing original/authenticated copy of documents, photocopy of the documents are placed in the proceedings. 3. In many cases IO has held the enquiry without giving notice to the charged officer. Documentary evidence is not available on records to show that the CO was informed/directed to attend the hearing. 4. The letter to the CO does not indicate whether the enquiry is to be held on a day-to-day basis. 66 5. In many cases the IO after completion of the prosecution evidence, instead of giving the opportunity to the CO to submit his defence statement and the list of defence witnesses, has closed the inquiry and accepted the prosecution brief of the Presenting Officer. 6. The Charged Officer is not informed of the proceedings at every stage of the inquiry as per the rules. 7. The order sheet is usually found to be incomplete. It is also not placed in chronological order of the date of hearing and mingled with the proceedings instead of placing the complete order sheet in one separate folder. 8. In many cases the order sheet is silent as to why the defence evidence has not been recorded by the IO as also details of the opportunity given to the CO for recording of the defence evidence. 9. Proceedings are not arranged in a separate folder/ in order as required vide Part 9 of Chapter 10 of CCS (CCA) Rules, 1965 of Swamy’s compilation. 10.The listed documents are not taken on record after marking them but only unauthenticated photocopy of the documents are available. 11.The statement of the officer/person recorded in the PE, which is accepted as his/her statement in the DE is usually not placed with the DE proceedings with his/her statement. 12.Transaction of business regarding receipt of the Presenting Officer’s brief is not reflected in the order sheet. 13.In some cases it is not explicitly forthcoming whether copy of the Prosecution brief has been made available to the CO and he has in turn been directed to submit his Defence brief as required vide GOI Instructions No. 37 below Rule 14 of CCS (CCA) Rules, 1965. Such inaction vitiates the proceedings. 14.In cases where the CO has sought clarification about rejection of his representation for the change of the IO, IO has closed the proceedings before the issue of the clarification to the CO. This can be termed as denial of affording opportunity and may not stand judicial scrutiny. 67 15.In some cases confirmation to the effect that summon of the IO was received by the CO is not available on record. 16.In some cases it was found that the IO had not mentioned in the communication to the CO that on the day of the Preliminary hearing he will also examine the listed PWs and Prosecution Exhibits and he proceeded as such which amounts to denial of opportunity. 17.In many cases the statements of the PWs and POs brief, which were provided to the CO by Regd Post, were received back undelivered. No further attempt was made to serve the same IMPORTANT DO’S AND DON’TS FOR INQUIRY OFFICERS IMPORTANT DO’S 1. Check up your order of appointment as Inquiry Officer Disciplinary proceedings are quasi-judicial in nature. You can hold an inquiry only if you are duly authorised to do so by the competent disciplinary authority, through a formal written order. You should commence inquiry only after you have been so appointed. Any subsequent order of appointment shall not cure the initial lack of jurisdiction and the proceedings held upto that stage shall stand vitiated. 2. Get acquainted with the nature of accusations and the procedure to hold inquiry Get hold of the papers required initially. By going through these papers you will get acquainted with the nature of charge and the evidence on which it is based. Be also fully conversant with the procedure to be followed to hold the inquiry. 3. Plan the holding of Preliminary Hearing 68 Decide the date, time and venue for holding preliminary hearing. Normally, the preliminary hearing should be held within ten days, at the most twenty, of your appointment as inquiry officer. Send notices for the hearing well in time. It is mandatory to send such notices through the registered post, or these may be served in person. 4. Open Daily Order Sheet 5. Find out if the charged employee wishes to admit any of the charges in the Preliminary Hearing If he does, it will cut short your work of holding an inquiry into the charges, which are so admitted. However, you are bound to return a report of guilt in respect of the charges, which are admitted. 6. Sort out the disputed issues, the number of documents, and witnesses etc. to be examined A free and frank discussion with the charged officer and the presenting officer shall go a long way to eliminate unnecessary rigmarole and bring out clearly the issues in dispute requiring formal proof and the number of documents and witnesses to be examined during the inquiry. A wellplanned discussion will, thus, place a proper focus before the Inquiry Officer. 7. Find out documents requiring proof Normally, since the documents mostly produced in the departmental inquiries are official documents, their authenticity and genuineness is not in doubt. However, if the charged employee has a genuine doubt about some document, ask the presenting officer to arrange for its proof. 8. Ask the accused employee to inspect listed documents 9. Decide relevance of additional documents quickly Though the right of the charged employee to inspect and take extracts etc from the listed documents is complete, it is not so in the case of additional documents cited by him, for his defence. Broadly speaking, the inspection of such documents is subject to the two conditions of relevance and public interest. To decide the relevance is your business. The Supreme Court enjoins upon you to have a positive approach in the 69 matter, rather than having the attitude ‘why should I allow’, your approach should be “what is the harm in allowing it”. 10. Record reasons for disallowing the documents It is mandatory requirement and must be complied with. The reasons so recorded should be communicated to the charged employee. 11. Send requisition for the additional documents to the authority to whom the documents belong The requisition should be addressed to the Head of the Department having custody of the documents, and need not be routed through the disciplinary authority. The reminders, if any, should also be sent to such authority, direct. 12. Decide relevance of defence witnesses expeditiously On receipt of the list of defence witnesses, their relevance should be decided expeditiously. Reasons should be recorded where evidence of any proposed witness is not considered to be relevant. 13. Hold regular hearings without avoidable loss of time If you wish to defeat any dilatory tactics of the charged employee, you have to cut delays on your part also. The date of regular hearing should be fixed as early as practical and notices for the same sent out well in time. 14. Take all steps to secure attendance of witnesses It is the responsibility of the inquiry officer to take all necessary steps to secure attendance of the witnesses, including defence witnesses. It will be wrong, rather perverse, to shift the responsibility to secure the presence of the defence witnesses in the inquiry, to the charged employee. 15. Obtain certificate from the defence assistant that he is not having more than two cases on hand in which he is rendering defence assistance 70 If the defence assistant is a retired employee, he is not subject to any restrictions. 16. Before regular hearings commence obtain certificate of inspection of documents from the charged employee. 17. Conduct the hearings fairly and firmly Provide all necessary opportunity to the charged employee to put up his defence adequately, but at the same time reject all unreasonable demands or dilatory tactics. 18. Record the questions disallowed by you during the crossexamination The Central Administrative Tribunal has held it to be an essential requirement. Your reason for disallowing the question should also be indicated briefly. 19. Protect the witnesses from undue harassment The witnesses should be treated respectfully and examined courteously. It is your duty to ensure that a witness is so treated and that no questions are put to him with the purpose to annoy or insult him. 20. Depositions of the witnesses should be recorded and their signatures obtained thereon. These depositions should also be authenticated by the inquiry officer, and copies thereof should be supplied to the charged employee and the presenting officer. 21. Keep record of your observations regarding demeanour of the witnesses as they depose before you This may be done in the deposition sheet of the witness at the time of authenticating it. These observations are not a secret record and should be known to both the parties. In fact, in departmental inquiries the inquiry officer cannot maintain any secret record at all. 22. Remember, the criteria to allow ‘New evidence’ is ‘inherent lacuna’ and not merely relevance. 71 Such evidence can be admitted at a particular stage only. ‘New evidence’ cannot be allowed to fill up gaps. 23. In ex-parte proceedings, allow the charged employee to participate in any stage, he desires But it is not necessary to recall a witness. 24. In common proceedings, continue even if any co-accused retires from service However, the proceedings have to be suspended if a co-accused dies or is dismissed from service. 25. In part heard inquiries, better take up threads where they were left by your predecessor No doubt, you are free to take up proceedings, de novo, but this should be done in exceptional case only. However, you may recall a witness if considered necessary. 26. In case of ‘Court Witness’ allow cross-examination by both the parties A ‘Court Witness’ is a witness not cited by either party but called by the inquiry officer. The calling of such a witness shall be governed by the provisions relating to ‘New evidence’. 27. Do ask mandatory questions at the close of inquiry However, it is not mandatory where the charged employee opts to be his own witness. 28. Allow copy of the written brief of the Presenting Officer to the charged employee But the copy of the written brief of the charged employee need not and should not be supplied to the presenting officer. 29. Evaluate the evidentiary value of each piece of evidence recorded during inquiry correctly and properly The inquiry officer is not free to assess the value of the evidence he has recorded, according to his own notions. There are well-set and timehonoured norms for such evaluation. 72 30. delay Submit a full-blooded report of inquiry without any avoidable 31. Submit your report of inquiry to the disciplinary authority alongwith all original records. You need not keep anything with you. IMPORTANT DON’TS 1. Do not delegate function of holding of inquiry to anyone else. 2. Do not hold inquiry according to your own methods. There is a prescribed procedure to follow. 3. Do not continue with the proceedings (it has to be stayed) if a representation of the charged employee, alleging bias against the inquiry officer is pending with the Revisional authority. 4. Do not postpone preliminary hearing simply because the charged employee could not arrange for defence assistance. 5. Do not call for the documents or examine a witness to decide the question of their relevance. 6. Do no requisition additional documents from the disciplinary authority. Do not ask the Presenting Officer to collect them. You have to writ direct to the authority in whose custody or possession these documents lie. 7. Do not question the decision of a Head of Department to withhold documents on grounds of public interest. 73 8. Do now throw responsibility of calling defence witnesses on the charged employee. 9. Do not enter into argument with a controlling authority if it is unable to relieve a particular employee, in the interest of public service, to render defence assistance in the case pending before you. 10. Do not insist that witnesses may be produced in any particular sequence before you. The order in which the witnesses may be examined has been left to the respective parties. 11. Do not administer oath to the witness. 12. Do not question the witness extensively right at the outset. The witnesses should be examined in accordance with the prescribed procedure. 13. Do not interfere frequently when a witness is being examined, cross-examined or re-examined. The salutary principle in this regard is patience and graceful hearing. You may clear your doubts and get clarifications from the witness at the end. 14. Do not allow leading questions, except in cross-examination. Do not put leading questions to the witnesses, yourself. 15. Do not allow adjournments on flimsy grounds. 16. Do not allow ‘New evidence’ to fill up gaps. It should be allowed if there is an inherent lacuna in the evidence already recorded. 17. Do not proceed ex-parte, if the charge sheet has not been delivered to the charged employee. 18. Do not allow defence assistance when the charged employee is appearing as his own witness or when he is answering the mandatory questions, towards the close of inquiry. 19. Unless he opts to examine himself, do not examine a coaccused in a common proceedings as a witness against the other coaccused. 20. In a joint trial do not allow cross-examination of a defence witness by the other charged employee. Only presenting officer can cross-examine a defence witness. 74 21. Do not go for local inspection of the site of the incident except when accompanied by the charged employee and the presenting officer. Better, make a local inspection after the prosecution evidence has been recorded. Do not collect information there from persons who have not been cited as witnesses. 22. Do not supply copy of the written brief of the charged employee to the presenting officer. 23. Do not take into consideration the written brief of the presenting officer if filed after the expiry of the due date and receipt of the brief of the charged employee. If you do not wish to exclude it from consideration, you have to send a copy thereof to the charged employee with an opportunity to file a rejoinder. 24, Do not take into consideration any matter or evidence which was not adduced during the course of inquiry. No importance should be given to surmises, conjectures, whims or your personal knowledge of the matter not on record. 25. Do not delay submission of your report of inquiry. PROCEDURE OF DEPARTMENTAL ENQUIRY UNDER RULE 27 OF CRPF RULES 1955: This of CRPF. (a) On written intimation, report or PE/ COI report on any act of commission or omission or serious misconduct or misbehaviour, --like disobedience of order, neglect of duty, remissness in discharge of duty, moral turpitude, violation of any departmental rule, instruction etc, or any act which degrades the honour of post-an employee is holding or brings bad name to organisation, acts unbecoming of a Govt Servant; --by a Govt Servant which is of so serious nature that in the eyes of competent disciplinary authority the official complained against is required to be proceeded against departmentally, the D.E is ordered. Here it is worth mentioning that PE is not a pre-requisite of DE. PE may only bring out the prima facie truth or facts about seriousness of offence/misconduct, if any. procedure is applicable to all combatised members of the forces from followers, CTs to Subedar Major 75 (b) (c) (d) (e) (f) (g) (h) (i) On the basic of this report charges are framed against the delinquent. There may be one or more than one charges in enquiry. But it is advisable that charges must be precise, specific, definite and distinct for which sufficient evidences are available. They should not be ambiguous and many in number. It should not be vague. Multiplicity of charges should be avoided. Memorandum of Charges alongwith the Statement of Articles of Charge framed against Govt Servant (Annexure-1), Statement of Imputation of Charges (Annexure-2), List of Documents by which the Article of Charges framed (Annexure-3) and List of Witnesses by whom the Article of Charges framed (Annexure-4) are to be sustained are delivered to the Delinquent in person by disciplinary authority or through any other Govt Servant and signature of delinquent obtained duly attested in token of acknowledgement of Memo of Charges with date. (If not present may be sent by registered post AD at his last known address or/ and permanent address). The Disciplinary Authority shall require the Govt Servant (Charged Official) to submit within such time as may be specified but not less than ten days, a written statement of his defence and state whether he desires to be heard in person. On receipt of the Written Statement of Defence or after the expiry of specified period the Disciplinary Authority may drop one or some of the charges where he is satisfied with written statements of defence. Disciplinary authority may himself enquire the remaining charges or appoint an Enquiry Officer to conduct DE. Enquiry Officer should be supplied with office order for his appointment as EO alongwith a copy of Memo of Charge with its Annexures duly acknowledged by the delinquent. E.O will start enquiry with Preliminary Hearing only after 48 hours of delivery of Memorandum of Charges to the Delinquent. No warning is required to be given by EO to witnesses and delinquent before recording their statements. During preliminary hearing, the Delinquent will be asked by EO about the receipt of the Memo of Charges, if he has understood it, the language Hindi or English, which he understands for recording statement. Then he will be asked to plead "guilty" or 76 (j) (k) (l) (m) (n) (o) (p) (q) "not guilty" in respect of all charges separately. If he has not understood the charges that will be explained to him and only after 48 hours he will be asked to plead guilty or otherwise. Delinquent pleads "guilty" or "not guilty." Prosecution Witnesses relied upon necessary to establish charges will be let in. The statement of Prosecution Witnesses will be recorded in presence of Delinquent in duplicate. All statements made by Prosecution Witness are to be read over, explained in the language he understands and admitted correct by him and signed by PWs, Delinquent and E.O. Delinquent will be given an opportunity to crossexamine the witness. Whenever EO asks some clarification from PWs, Delinquent will again be given an opportunity to cross-examine PWs. After the statements , examination in chief, cross examination and re examination . the matter is to be read over explained and admitted correct .The EO, Delinquent and concerned witnesses, must sign each page. Documents produced by PWs will be taken on record in form of exhibit –S1, S2-----. A copy of the statement is to be handed over to delinquent and signature obtained on original copy in token of receipt of the same then and there. If documents are relied upon and produced by PWs, Delinquent will be allowed to go through it and if possible copy of it may also be supplied to Delinquent and sign obtained in token of inspected the same or receipt of copy of it. It has to be recorded in proceeding that Delinquent has inspected/received copy of mentioned exhibits/ documents before the Delinquent is examined. Delinquent will be examined and statement recorded by E.O on given date. He will be asked to plead "guilty" or "not guilty" at this stage when the statements of all PWs are already recorded and document relied upon are produced. Delinquent is examined in question answer form only. If Delinquent pleads "guilty", E.O. will record his findings and opinion in respect of those charges and the proceedings shall be closed for orders of competent Disciplinary Authority. If Delinquent pleads "not guilty", he shall be asked to file a Written Statement of Defence and List of 77 (r) (s) (t) (u) (v) Witnesses/ Documents as he may wish to cite in his defence within a period not less than a fortnight (15 days). If he declines to file written statement as aforesaid, E.O. shall again examine him on expiry of the period. If he refuses to cite any witness etc in his defence the fact will be recorded and proceedings will be closed for orders of Disciplinary Authority. Otherwise DWs will be summoned by EO and the Statements of D.Ws. will be recorded and defence documents produced will be taken on record as exhibit- D1,D2----, as in case of statements of PWs. Enquiry Officer may refuse to call such witnesses and to allow such documents, which are not material to the issue, involved but for this he must record in brief the reason for considering evidence inadmissible. EO may “re-call” any material witness after advance information given to delinquent. Delinquent will be given an opportunity to cross-examine him. EO should not call any new witness unless it is felt very necessary in the interest of justice. If new witnesses are called the delinquent should be given this information in advance and opportunity to crossexamine him will also be given. E.O. will then prepare his Enquiry Report, which contains following points. (i) It must be based on the statements recorded and documents relied upon and produced during the proceeding. (ii) Each Article of Charge is to be discussed and examined separately by E.O. in his report. (iii) First of all he will mention a paragraph on an introductory part consisting Order for Enquiry and his appointment as Enquiry Officer with reference of relevant letters. He will also quote all the article of charges, which are levelled against delinquent. (iv) Then he will mention about the Participation of C.O./ Delinquent in the Enquiry proceeding and appointment of P.O. and D.A., if any, in the Enquiry. (v) Article of Charge 1 will be quoted as such. (vi) Then he will mention if delinquent has pleaded guilty in respect of this charge (Article-1) or otherwise. 78 (vii) (w) Next he will discuss in findings the Summary of Statements given by P.Ws and documents in respect of Article of Charge-1.(Supported by witnesses and documents) (viii) Next he will discuss the Summary of Statements of D.Ws and Delinquent in respect of Article of Charge-1. (ix) Then E.O will analyse and assess the evidences produced before him and record his findings and opinion. If charges are proved partially proved or not proved. It is worth mentioning here that in D.E. the charges are not required to be proved "beyond reasonable doubt” as in the court. The standard of proof in D.E. is the "preponderance of probability" and not "beyond doubt". (x) The same sequence is followed in respect of all Articles of Charge, one by one, separately. At the last Enquiry Officer will sign the proceeding and submit it under a covering letter to Competent Disciplinary Authority for final order. (x) Before issue of final orders the disciplinary authority provide a copy of enquiry report to delinquent and give him an opportunity to submit his representation within reasonable time i.e. 15 days, given to him. On receipt of reply or non-receipt of any reply within stipulated time, the disciplinary authority will pass final orders on DE. (y) Delinquent may go for one appeal and one revision against this order of Competent Authority under Rules 28 & 29 of CRPF Rules 1955. 79 (z) Besides above an Enquiry Officer (EO) prepares Daily Order Sheet on day - to -day basis. It contains the brief of the proceeding of each day. EO requires to mention all mandatory provision of DE step by step which he follows and also the reasonable opportunity given to delinquent at all steps on the day of proceeding. He will also mention where he has used his discretion with reasoning. It has to be signed by EO, Delinquent, Presenting Officers and Defence Assistant, as applicable. SEQUENCE OF PAPERS IN D.E. PROCEEDINGS-(i) (ii) Index. D.E. Proceedings Format (Annexure XII of GC/BN OFFICERS MANUAL) (iii) Daily Order Sheet. (iv) Office Order for appointing E.O. (v) Memorandum of charge with Annexures. (vi) Preliminary Hearing, Plea of "Guilty” or "Not Guilty". (vii) Statement of Prosecution Witnesses. (viii) Exhibits of P.Ws. (ix) Statement of the Delinquent. (Final Plea of "Guilty" or "Not Guilty")/ Written Statement of Defence by Delinquent. (x) Statement of D.Ws. (xi) Exhibits of D.Ws. (xii) Written Statement of Defence by Delinquent if any after giving him another opportunity if he wants to say something even at this final stage. (xiii) Report of EO giving his findings in respect of all charges separately. (xiv) If E.O. is other than Disciplinary Authority then Disciplinary Authority before reaching to any conclusion shall give a copy of enquiry report there by giving one more opportunity to the Delinquent to say/represent if anything he wants. (xv) Final order of the Competent Authority, duly acknowledged by delinquent. (xvi) Appeal/ Revision/ Order, if any. THE STEPS(1) Receipt of intimation, complaint, and PE/COI report regarding misconduct, misbehaviour, indiscipline or commission/omission of departmental Rules & regulations by a Govt. servant. Preparation of charge sheet. (2) 80 (3) (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) Delivery of charge sheet to Delinquent and consideration of his Reply. Dropping of some of the charges by disciplinary authority if he is either satisfied with the written statement of delinquent or sufficient evidences not available in respect of some of the charges Appointment of Enquiry Officer (E.O). [& Presenting Officer under CRPF Rules,1955]. Preliminary Hearing and recording of plea of “guilty” or “not guilty”. [Before this Defence Assistant should be provided under CRPF Rules,1955].Rules]. Inspection of Documents. Recording of Statement/ Evidences of Prosecution Witnesses (P.Ws)/ State Witnesses (SWs) in presence of Delinquent and taking the documents relied upon in support of the charges and produced by the witnesses. If charged official does not appear before E.O, on given date & times, the D.E may be conducted ex parte. Delinquent will be given an opportunity to crossexamine PWs. Examination of Charged Official (C.O). Final Plea of “guilty” or “ not guilty”. (Copy to PO, if any appointed). Opportunity to produce DWs and Documents in his defence. Recording of Statement of Defence Witnesses and producing defence documents through them. The Govt Servant may examine himself in his own behalf, if he so prefers. Another opportunity to delinquent for being heard in persons before preparation of Enquiry Reports. [Mandatory Questions under CCS (CCA) Rules; Written Briefs of PO and then Govt Employee through DA after giving copy of PO’s Brief.][not applicable under CRPF rules] Preparation of Enquiry Report. If Disciplinary Authority is not himself Enquiry Officer, copy of report of EO is to be given to delinquest providing one more opportunity to charged official to represent within 15 days. Receipt of representation within specified time for consideration. Order of Competent Authority & it’s delivery to Delinquent with acknowledgement. 81 D.E. PROCEDURE UNDER RULES 14 & 15 CCS (CCA) RULES 1965 This procedure is applicable to non-combatised civilian officers serving in force and all Gazzetted Officers of the Organisations. a) On written report or PE/COI/fact finding report on commission of serious misconduct or misbehaviour by a Govt. Servant which is of so serious nature that in the eyes of competent disciplinary authority the official complained against is required to be proceeded against departmentally, the DE is ordered? On this report charges are framed against the Delinquent. The Charged Official should be served with a charge sheet together with a statement of imputations of b) c) 82 d) e) f) g) h) misconduct or misbehaviour. The receipt of the charge by delinquent is to be acknowledged. The reasonable time and opportunity is given to him to reply to the charges or to be heard in person, but not more than 10 days. On receipt of the reply to the charges or after the expiry of specified period, the Disciplinary Authority may drop some of the charges & may himself enquire the remaining charges or appoint an Enquiry Officer to conduct DE and a copy of Memo of Charge with its Annexures is supplied to such EO. Inquiry is must to consider the charges refuted by Charged Official. Presenting Officer is also appointed to present the case of the State and copy of memorandum of charges alongwith its Annexures and documents relied upon to sustain the case is also supplied to him. A copy of appointment of PO is given to EO & Charged Official also. The Delinquent has a right to (i) inspect documents referred to in the Annexure-III to the charge-sheet; (ii) engage any other serving or retired Government servant to assist him (as Defence Assistant) and (iii) engage a legal practitioner, if the Presenting Officer is a legal practitioner, or, if not, Disciplinary Authority may permit such an engagement. If at the Preliminary Hearing the Government servant pleads guilty to any of the article of charge, the Inquiry Officer should record a finding of guilt in respect of those Articles and hold inquiry only in respect of the remaining Articles of Charge, if any. No warning is to be given to charged official & witnesses before recording of their statements. The Inquiring authority shall, if the government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days. The EO will ask Charged Official to inspect the documents relied upon in favour of charges within the five days which may be extended for another five i) j) 83 k) l) m) n) o) p) q) days; to submit list of witnesses and to give notice within ten days of the order or within such further time not exceeding ten days for discovery or production of any documents in possession of Govt. Government side has the first priority to present the case and produce witnesses and evidence. Enquiry officer will prepare Summon for SWs, which will be handed over to Presenting Officer to be served to SWs under information to Defendant and DA to make themselves available during the proceeding on specified date and time. The statement of State Witnesses (SW) will be recorded by E.O. in presence of Delinquent, Defence Assistant and Presenting Officer. All statements made by PWs are to be read over, explained and admitted correct to witnesses and delinquent, and must be signed by EO, PO PWs , Delinquent and Defence Assistant. Delinquent will be given an opportunity to cross-examine the SWs himself or through his DA. A copy of the same will be handed over to Delinquent duly acknowledged then and there. If documents are relied upon and produced by PWs/PO, the Delinquent will be allowed to inspect it and if possible copy of it may also be supplied to Delinquent and sign obtained in token of inspected the same or receipt of copy of it duly recorded in the proceedings. If PO wants to produce new evidence or may itself call for new evidence or recall and re-examine any witness and EO in his discretion allows so; the Delinquent shall be entitled to have, if he demands it, a copy of list of further evidences proposed to be produced and an adjournment of the enquiry for three clear days before production of such new evidences. EO will allow Delinquent to produce new evidence, if it is necessary, in the interest of justice. When the statements of PWs are over, the Delinquent will be required to state his defence, orally or in writing, as he may prefer with in 15 days. In either case it will be reduced in writing and a copy of the statement of defence shall be given to the Presenting Officer appointed. The delinquent will be asked to produce the list of Defence Witnesses and documents in his defence. 84 r) s) t) u) v) w) x) The delinquent may examine himself in his own behalf if he so prefers. The witnesses (DW) produced by the delinquent shall then be examined and shall be liable to be cross-examined by PO and re-examined by the enquiry officer according to the provisions applicable to the Prosecution Witnesses. The inquiring authority may, after the delinquent closes his case, and shall, if the delinquent has not examined himself, generally question (Mandatory Questions) him on the circumstances appearing against him in the evidence for the purpose of enabling the delinquent to explain any circumstances appearing in the evidence against him. The inquiry officer may, after the completion of the production of evidence, hear the Presenting Officer first and then Delinquent. Or require presenting officer to submit his prosecution written brief, which will be handed over to delinquent to file his defence written brief thereafter. Entire proceedings should be recorded in writing, every page to be signed by the respective witness, the defendant and the Inquiry Officer, and copies furnished to the Defendant and the Presenting Officer. If the Government servant, to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex-parte, observing procedure in full. On completion, the EO will submit his report (Enquiry Report) and his findings on each Article of Charges to the Competent Disciplinary Authority. DE should be completed within Three months. Disciplinary authority may accept/agree with the report or disagrees (by recording reasons of disagreement), and record his findings & make final order. Before passing final order on the report a copy of the Inquiry Report should be forwarded to the delinquent giving him fifteen days time to make any representation/submission. The representation if any submitted by the delinquent should be considered before passing final orders. 85 y) z) Along with the final orders, the delinquent should be supplied with-(i) a copy of the findings on each article of charge; (ii) Where the Disciplinary Authority is not the Inquiring Authority, a statement of the findings of the Inquiring Authority with brief reasons for disagreement, if any, of the disciplinary authority; (iii) a copy of the advice, if any, given by the UPSC. (iv) Where the Disciplinary Authority has not accepted the advice, a brief statement of reasons for each nonacceptance. Besides above an enquiry officer (EO) prepares Daily Order Sheet on day to day basis. It contains the brief of the proceeding of the day. EO requires to mention all mandatory provision of DE step by step which he follows and also the reasonable opportunity given to delinquent at all steps on the day of proceeding, keeping in mind the natural justice. He will also mention where he has used his discretion with reasoning. It is signed by EO, Delinquent, Presenting Officers and Defence Assistant, as applicable. EX-PARTE DEPARTMENTAL ENQUIRY PROCEDUREa) If the Government servant, to whom a copy of the articles of charge has been delivered, does not submit the reply of the Memo. of Charges on or before the date specified for the purpose or does not appear in person before the inquiring authority; or otherwise fails or refuses to comply with the provision of this rule, the inquiring authority may hold the inquiry ex-parte, observing complete procedure for giving all reasonable opportunity to the Delinquent at all stages of proceedings. Whenever an official continues to remain absent from duty or overstays leave without permission and his b) 86 c) d) movements are not known, or he fails to reply to official communication at the last known address, the disciplinary authority may initiate action under Rule 14 of the CCS (CCA) Rules, 1965. Ex-parte proceedings do not mean that findings shall be given without any investigation. Enquiry is still necessary, although it will be in the absence of charged official. It does not affect the job of EO. The only difference is that delinquent has denied himself the opportunity of cross-examination of PWs and producing and examining his own defence witnesses. In all such cases, the competent authority should, by a Registered A.D. letter addressed to the official at his last known address and permanent address, issue a charge-sheet in the form prescribed for the purpose and call upon the official to submit a written statement of defence within a reasonable period to be specified by that authority. If the letter is received undelivered or if the letter having been delivered, the official does not submit a written statement of defence on or before the specified date or at a subsequent stage does not appear in person before the inquiry officer so appointed, or otherwise, fails or refuses to comply with the provisions of CCS (CCA) Rules, the inquiring authority may hold an inquiry in absence of Charged Official, keeping such document in Enquiry file as record. The enquiring authority should record the reasons why he is proceeding ex parte and what steps he had taken to ask the accused official to take part in the enquiry to avail of all the opportunities available under the provisions of Rule 14 of the CCS (CCA) Rules. The EO has to fix a date of hearing and intimate the same to delinquent. The notice of all hearings should be served on the CO or communicated to him unless the first notice says that the inquiry will continue on day -to –day basis. In ex parte proceedings, the entire gamut of the enquiry has to be gone through. The notices to witnesses should be sent, the documentary evidences should be produced and marked, the Presenting Officer should produce the prosecution witnesses and e) f) g) h) 87 i) j) k) l) m) the inquiring authority may put such questions to the witnesses as he deems to be fit. In such a case, the details of what has transpired in his absence, including depositions, should be furnished to the accused officer. During the course of enquiry, the accused is free to put in appearance and participate in the enquiry. If he absents him self from the enquiry at one stage, it does not take away the right to attend the enquiry at any further subsequent stage. If the accused appears in the enquiry when some business has already been transacted, it is not necessary to transact the same business again unless the accused official is able to give justification to the satisfaction of the Inquiry Officer for not participating in the enquiry earlier. However, if EO is satisfied, the delinquent will be given all opportunity to be heard in person and produce documents in his defence at all steps by giving him the copy of proceedings already taken place and to cross-examine witness whom he desires. The absence of the CO (Delinquent) does make it complicated for the EO to come to a conclusion in the absence of the explanation of CO. The EO has to examine the records and witnesses to enable him to reach conclusion as to the culpability of the CO based on the evidence laid before him. He will prepare his enquiry report as in regular DE. The competent authority may, thereafter, proceed to pass the final orders after following the prescribed procedure. COMMON PROCEEDINGS-It is commonly known as joint proceeding (Joint DE) also. The disciplinary authority may issue order for common proceeding when two or more employees working in same office make complaints against each other or commit same offence together. Cross complaints arising out of the same or connected incident or transaction are not uncommon. The general principle as laid down by the Courts is that the accused in cross cases should be tried separately and that both the trials should be held simultaneously or in quick succession so as to avoid conflicting findings and different appraisal of the same evidence. On the analogy of the 88 criminal law practice and procedure, a joint proceeding against the accused and accuser is an irregularity, which should be avoided. [ G.I., M.H.A., Letter No./98/63-AVD, dated the 13th June 1963]. A joint proceeding against Government servants working in the same office who made complaint against each other should be avoided. [Para 19, P. & T Manual, Vol. III ] DAILY ORDER SHEET (DOS)-(1) Daily Order Sheet is the record, maintained by the IO, of all the business transacted by him on day-to-day basis of the conduct of the inquiry proceedings. The gist of requests and representations made by either party and orders passed thereon by the IO are to be incorporated in the DOS. The following points in particular should find a mention in the DOS:-(a) Additional documents and the witnesses asked for by the CO in his defence. (b) Additional documents and the witnesses permitted. (c) Reasons for disallowing the remaining documents and witnesses. (d) Whether the additional documents permitted as relevant were made available for inspection and were inspected by the CO. (e) If the authority having custody of any such document does not consent to its production, the fact of such refusal. (2) Daily Order Sheet is the summary of the whole proceedings. This is the mirror of the DE proceedings. One may come to know the correctness of the procedure after just going through it. (3) The DOS, which is drawn on day-to-day basis, is to be dated and signed by the IO, the PO, the CO and the Defence Assistant. It would be rather desirable to furnish copies of the DOS both to PO and CO. (4) If the CO or the PO or the DA (as applicable) refuse to sign the Daily Order Sheet, the fact of such refusal may be mentioned in the daily order sheet. 89 REPORT OF THE INQUIRY OFFICER The findings of the Inquiry Officer must be based on oral and documentary evidence adduced during the inquiry. The inquiry officer who records the oral testimony is in the best position to observe the demeanour of a witness and to form a judgement as to his credibility; he should discuss the same in his report. Taking into consideration all the circumstances and facts, the Inquiry Officer as a rational and prudent man has to draw inferences and to record his reasoned conclusion as to whether the charges are proved or not. After the conclusion of the inquiry, the Inquiry Officer should draw up a report as provided in Rule 14 (23) (i) and forward the same, where it is not the disciplinary authority, 90 to the disciplinary authority, together with the records of inquiry constituting the documents prescribed in Rule 14 (23) (ii). The report of the Inquiry Officer should contain – (i) An introductory para indicating appointment of Inquiry Officer and the dates of hearing. (ii) Charges that were framed. (iii) Charges that were admitted or dropped or not pressed. (iv) Charges actually inquired into. (v) Brief statement of the case of disciplinary authority in respect of the charges inquired into. (vi) Brief statement of facts and documents admitted. (vii) Points for determination or issues to be decided. (viii) Brief statement of the case of the Government servant. (ix) Assessment of evidence in respect of each point. (x) Finding on each charge. Along with the report, the Inquiry Officer should send a folder containing the following: – (a) (b) (c) (d) (e) (f) (g) (h) (i) List of exhibits produced by the Presenting Officer. List of exhibits produced by the Government servant. List o prosecution witnesses. List of defence witnesses. A folder containing deposition of witnesses in the order in which they were examined. A folder containing daily order-sheets. A folder containing written statement of defence. Written briefs of both sides. Applications, if any, filed during the course of inquiry, and orders passed thereon, as also orders passed on oral requests made during the inquiry. INQUIRY REPORT(IN BRIEF)— 1. After conclusion of the inquiry, IO has to prepare a Report as laid down in Rule 14(23)(i) of the CCS(CCA) Rules and forward the same to the Disciplinary Authority together with the records of enquiry 91 consisting of the documents prescribed in Rule 14(23)(ii). There is no prescribed format for writing the Report. The Enquiry Report is to be divided into the following parts: (a) Introductory (b) DA availed of by the CO and his participation in the enquiry. (c) The charges and substance of imputation of misconduct. (d) Case of the Disciplinary Authority. (e) Case of the Charged Officer. (f) Analysing and Assessment of the evidence on record. (g) Findings and decisions on each charge. 2. The report is to be based only on the evidence on record. The evidence has to weighed and evaluated very carefully, intelligently, dispassionately and impartially. The IO has to draw his inferences and record his reasoned conclusions. The assessment of evidence and arguments on each charge should be done under separate headings. 3. The IO should then forward the inquiry Report to the Disciplinary Authority. DIFFERENCE BETWEEN DE UNDER RULE 27 (c) OF CRPF RULES 1955 AND UNDER RULE 14 CCs (CCA) RULES 1965The procedure to conduct DE under CRPF Rules 1955 and CCs (CCA) Rules, 1965 is similar except the following differences: 1) Under CCS (CCA) Rules, if Charged Official pleads unconditional guilty in respect of one or all charges framed against him during Preliminary Hearing; the Disciplinary Authority records his findings in respect of those charges. The Enquiry Officer is appointed only to enquire into the charges for which C.O has not pleaded guilty. Whereas under CRPF Rules 1955 the E.O has to listen the P.Ws and the documents which are relied upon in favour of charges in presence of Delinquent even if he pleads guilty during preliminary hearing. The reasonable opportunity at all 92 2) 3) 4) 5) 6) 7) 8) steps will be given to defend him. The report of E.O. will be submitted only at the end of proceeding, for order of Disciplinary Authority. Under CRPF Rules 1955, their is a provision that E.O. will start proceedings only after 48 hours after receipt of Memorandum of charges by C.O.; Whereas there is no such provision under CCS (CCA) Rules 1965. Under CCS (CCA) Rules 1965, the Presenting Officer (P.0) is to be appointed by, Disciplinary Authority to present the State Witnesses / P.Ws and Documents on behalf of Disciplinary Authority, whereas this provision is not made under CRPF Rules 1955. Under CCS (CCA) Rules 1965 there is a provision for Defence Assistant (D.A), who assists C O and defends the case on behalf of charged official, whereas this provision is not available under CRPF Rules 1955. Under CC'S (CCA) Rules 1965, Presenting Officer cross examines the DWs, where as under CRPF Rules there is no such provision to cross-examine the DWs. Under CRPF Rules 1955, prosecution never crossexamines DWs; however, EO can examine DWs. The C.0 has to appear before Enquiry Officer on such day and time, within ten working days from the receipt of article of charges etc., as the E.0 may by notice in writing specify. A period of further ten days for appearing may be allowed by E.O. No such time frame is given in CRPF Rules. If the CO fails to appear before EO within specified time or refuses or omits to plead, the EO will require the PO to produce evidence and the case shall be adjourned to a latter date not exceeding 30 days. EO will record an order that CO may for preparation of his defence inspect listed documents within 5 days of the order and further period of 5 days may be allowed by EO. The CO is required to submit list of witnesses, which he wants to produce in his defence within 10 days and may further allow 10 days. No such time frame is given in CRPF Rules 1955. The copies of the statements of PWs if required by the CO are to be furnished to him 3 days before commencement of examination of witnesses. If E.0. requires any other document for prosecution, which is in possession of Govt., may also be requisitioned by EO if it is relevant to the case. This provision is also not available under CRPF Rules 1955 but being 93 9) (10) (11) practically followed in the interest of natural justice and reasonable opportunity. The Prosecution Witnesses may be examined by or on behalf of Presenting Officer on a fixed date & time in presence of the charged official & cross-examined by the Charged Official or his Defence Assistant on his behalf. Provision for cross-examination of DWs by PO is not available in CRPF Rules 1955. Under CRPF Rules 1955, the provision for cross-examination of DWs & Delinquent by Prosecution is not available. When evidence of disciplinary authority or prosecution is over, EO may allow the Presenting Officer to produce new witness but this can be done with a notice to Charged Official & adjournment of three clear days. CRPF Rule is silent on this but sufficient time is practically given only in the interest of natural justice. Under CCS (CCA) Rules, when evidence of Disciplinary Authority is over, the Charged Official is required to answer ‘mandatory questions’ in his defence. Then he is to be examined by EO. If defence is made orally it should be jotted down, a copy of such deposition will be supplied to Presenting Officer. Like wise the defence witnesses will be examined. Under CRPF Rules there is no ‘mandatory question as such, but almost similar procedure with a little difference that herein the delinquent is asked to enter a plea of guilt or otherwise first and then give a list of DWs. When evidence of both sides is over the Presiding Officer & Defence Assistant are required to file written brief to their respective cases before E.O. This provision is not available in CRPF Rules 1955. Under CCS(CCA) Rules EO and PO are separate with distinct role, whereas under CRPF Rules EO has somewhat a dual role to perform. He is supposed to bring out prosecution documents as well, besides examining the fairness and strength of the evidences. Herein he sits in the chair of prosecution as well as that of judge. Under CCS(CCA) Rules the Annexures pertaining to List of Documents & PWs of the Memorandum of Charges are not final. PO may add further during the prosecution. But under CRPF Rules EO has to depend mainly on these lists only unless apparently there is some deficiency in the evidence. It shows his bias attitude if he adds to the list of documents or PWs. (12) (13) (14) 94 CHARGE SHEET --Issue of charge sheet is the first step in the disciplinary proceedings taken against an employee with a view to imposing a major penalty. When it is proposed to institute a Departmental Enquiry against the member of the force, the disciplinary authority has to draw or cause to be drawn up the charge sheet. The charges are framed on the basis of facts established after PE or Court of Enquiry or on the basis of the record pertaining to the case. Charge Sheet consists of letter or memorandum containing the proposal to take such action and consists of the following documents, as it’s Annexures• • Definite and distinct Articles of Charge (Annexure-1). A Statement of Imputation of misconduct or misbehaviour on which the charge is based containing all relevant facts with full particularity including any admission or confession made by the employee (Annexure-2). A list of documents by which charges are to be sustained (Annexure-3). A list of witnesses by whom the charges are to be sustained. (Annexure-4). The charge sheet must be clear, concise and contain full particularity. The charges must be specific, precise and definite mentioning misconduct or other act or omission of the charged official clearly. Charges should be framed only in respect of those omissions and commissions in respect of which sufficient oral and documentary evidences are available. Charges should not be vague, so that the delinquent may put up an effective defence. Vague statement of charges vitiates entire proceedings. [Tpt. Comm. Versus ARK Moorthy (1995)1 SCC 332]. A single and compact charge is better than three / four vague, • • (i) (ii) (iii) 95 meaningless and irrelevant charges. The repetition of charges should be avoided. (iv) The substance of imputation of misconduct should be drawn up into definite & distinct article of charge. A statement of all relevant facts including any admission or confession made by charged official should be mentioned. The charge should be properly worded. (v) The Rule or sub Rule under which the act or omission of the charged official is a misconduct must be quoted in the charge. (vi) To make the charge specific, the following must be reflected :-a) Time/period, date and place of misconduct/ disobedience/ negligence. b) Brief narration of the specific misconduct/disobedience/negligence of duty etc. c) Reference to exact abusive words if spoken, should be made to make it more specific. (vii) The statement recorded during Preliminary Enquiry should not be cited as exhibit because the findings of the PE/COI are likely to bias the mind of the Enquiry Officer. Findings of such an enquiry must not be mentioned as Exhibits. (viii) The imputation should elucidate the charges in the form of the story with a view to clearly understand the charges. (ix) The charge must be framed in accordance with the procedure applicable to the employee. The model for Memorandum of Charges is given in Annexure –XII of GC BN Manual and Circular Order 21 / 1975 (Appendix-II) for members of the force governed under CRPF Act 1949 and CRPF Rules 1955; and in CCS (CCA) Rules for others. Therefore the charge sheet should be prepared accordingly.The procedure given in CCS (CCA) Rules, is slightly different from CRPF Rules. (x) The Charges should be framed with impartial attitude and it should not smack even a little vindictive or prejudice attitude of disciplinary authority. Following method is suggested for drafting of the charges. Disciplinary Authority should draw a table containing three columns, one each for the list of witnesses, the detailed history of the incident/misconduct etc. and the list of documents respectively as under— 96 WITNESSES DETAILED HISTORY OF THE CASE 1.------------- ---------------------------------------------{ -------------------------------------------------------------------------------------------2. --------------------------------------------------------------{ -------------------------------------------------------------------------------------------------------------------------------------------------------------3……………{ ---------------------------------------------------------------------------- DOCUMENTS }1……………… }2……………….. }3……………….. }4……………….. First of all Disciplinary Authority should write down the detailed history of the incident as emerged during PE/COI in the middle column in narrative form. After that he should earmark the witnesses in the left column and documents in the right column against the sentence/fact mentioned in the centre column. By doing this he will be able to enlist all the misconduct by the employee and also the witnesses and documents relevant and in support of the specific charges without loosing sight on any of them. ( MODEL PROCEDURE FOR CONDUCTING D.E. UNDER RULE 27 OF CRPF RULES 1955. PROCCEDINGS OF DEPARTMENTAL ENQUIRY CONDUCTED AGAINST NO. ..................... RANK ............. NAME .................................................. OF ........... COY ............. BN, CRPF BY SHRI ............................................ (RANK) OF UNIT..................PLACE…… PRILIMINARY HEARING IN PROCEEDING AGAINST SHRI___________ON_______AT __(HRS _ AT____(PLACE) In the presence of …………………… ……… 97 Questions asked by E.O. and replies thereto by Delinquent (date & time): Q.1. Have you received the copy of Memorandum of Charges framed against you alongwith it's all Exhibits from I to IV delivered to you by Commandant vide memo. No.................. dtd. ................. On ...? Ans. .................................................... ....................................................................... (If reply is no, then the copy may be handed over to him) Q.2. Have you understood the charges framed against you? Ans. ............................................................. ............................................................. (If reply is no, that will be explained to him and made him understood in the language he understands. This fact be recorded properly.) Q.3. Do you know that I have been appointed E.O. vide Comdt. ....... Bn. office order No. ............................... Dtd. .................. ? Ans. ........................................................ ................................................... ............. (If reply is no, then give copy of office order.) READ OVER EXPLAINED AND ADMITTED CORRECT --Sd-- --Sd-- (Signature of Delinquent with date & time) (Sig. of EO. with date & time) 98 NOTE: Minimum 48 hrs is given from the time of reading over the charges. He will be asked to present himself on given date and time for further Preliminary Hearing (Plea of Guilt). Proceeding against_________ On_______at_________Place______ In the presence of …………… ……………… Question asked by EO and reply by Delinquent on ____________ (Date and Time). Q. Charges were read out to you on ________ (Date) at_______(time). You should now state whether you plead "guilty" or "Not guilty" to Article of Charge No. 1 levelled against you? Ans. "I plead guilty" or "I do not plead guilty" QDo you plead "guilty" are "not guilty'' to Article of Charge no2. Ans. "I plead guilty" or "I don't plead guilty." (And so on in r/o other Article of Charges..........................................) N.B.- Charged Official has to plead guilty/not guilty in r/o all charges separately as above READ OVER EXPLAINED & ADMITTED CORRECT ` -Sd(Signature of CO with date & time) with date & time) NOTE~ -Sd(Sign. of EO Whether accused pleads "guilty" or "not guilty" the Prosecution Witnesses will invariably be let in and there statements recorded in presence of Delinquent. Delinquent will be asked to remain present during recording of statement of witnesses. When the statements of PWs are over, on next given date Delinquent will be called and again he will be asked to plead guilty or otherwise. If he wants to produce his DWs their Statements will also be recorded in the same manner as in case of PWs. 99 Proceeding Shri____________ On__________at_________place___ In the presence of …………………………… against PROSECUTION WITNESS-1 Statement of No..................Rank ..........(Name)......................of.....Coy......Bn.CRPF at (place)...............on (date).........at (hours)......... No............(Rank)......(Name).........states as under: "That..................................................................................... ....................................................................................................... ....................................................................................................... ....................................................................................................... ........................................" READ OVER EXPLAINED AND ADMITTED CORRECT -Sd(Signature of PW-1) (Signature of EO) -sd-sd- (Signature of Delinquent) Questions (if any) asked by EO & reply by (PW-1) No.........(Rank & Name)....... Question 1............................................... Answer 1 .................................................. Question 2............................................... Answer 2.......................................... and so on....... (Now opportunity to delinquent ... to cross examine PW 1 is to be given) Cross examination of PW-1 NO........... Rank........ Name.............. by the delinquent. 100 Question by delinquent........... Answer by PW-1......... and so on .......... ( If he declines to cross-examine the PWs, this fact will also be recorded and signed by them.) READ OVER EXPLAINED AND ADMITTED CORRECT. Sd/(Sig. of PW-1) E.O.) Note:If documents are also produced and relied upon in support of the charge, the accused will be allowed to inspect the same serially numbered as exhibit. A copy of the statement as above should be given to Delinquent with its Exhibits. Witness, Delinquent and EO must sign all pages. Following endorsement will also be made in the proceeding "The delinquent was allowed to inspect the following documents in the presence of EO--(a) Letter No............Dated..........from Commandant .....Bn CRPF addressed to. (b).......................................................... (c).......................................................... READ OVER EXPLAINED AND ADMITTED CORRECT -Sd(Sign. of Delinquent) NOTE: -sd(Sign. of EO) Sd/(Sig. of Delinquent) Sd/(Sig. of In the same manner the statement of all PWs are recorded and documents taken on record. Proceeding against Shri____________ On__________at_________Place____ In the presence of …… ……………… 101 EXAMINATION OF THE DELINQUENT (Statement of Delinquent or Exam. of Delinquent by EO He will again be asked to plead " guilty" or Not guilty") Question-1 Since all PWs have given their statements and relevant documents have been produced by them in support of the charge in your presence& you have seen all those documents, now at this stage, do you plead "guilty" or "Not guilty"in respect of the charges levelled against you vide article of charge 1, 2..........? Answer-1 ----------------------------------------------------------------------------R.O.E.A.C. Sd/(Sign. of Delinquent with date) Note :(i) If he pleads guilty again, the proceeding will be closed and Enquiry Report will be prepared & submitted to disciplinary authority and if EO him self is Disciplinary authority then he will pass his final order. If he does not plead guilty then a letter addressed to delinquent will be written asking him to file written statement and a list of DWs as he may like to cite in his defence within sixteen days (Not less than a fortnight) from the date of receipt of this letter. He will be asked to be present on given date & time and if he declines to file written statement and list of witnesses he will again be examined by E.O.. He will be asked to acknowledge the letter. (Delinquent may ask for reasonable time extension for preparation of defence, which should normally be given). Proceeding against Shri____________ On__________at_________place____ In the presence of …… ……………… Sd/(Sign. of E.O with date) (ii) 102 STATEMENT OF DW-I (Same as in case of PWs) (Statement to be signed by DWs, Delinquent & E O) R.O.E.A.C. Sd/Sd/(Sign of D.Ws with date) (Sign of Delinquent) EOs with date) Examination of DWs by E.O :Q-1 -------------Ans. -------------R.O.E.A.C. Sd/Sd/(Sign of DWs with date) (Sign. of Delinquent with date) of EOs with date) Sd/(Sign (Sign with date Sd/of Note :E.O. may refuse to record the statements if not material to the issues involved but this fact must be recorded in the proceeding with reasons for not allowing the same. The copy of statements recorded will be given to delinquent duly acknowledged. DEPARTMENTAL ENQUITY REPORT: 1) INTRODUCTION: I was appointed Enquiry Officer to conduct departmental enquiry against (name of Charged Official) vide Commandant.......Bn CRPF Office Order No.........Dated........to enquire into the charges framed against (Charged Official).......vide Memorandum No..............dated…. I have since completed the enquiry, on the basis of the documentary and oral evidence adduced before me, I prepare enquiry report as under: 2) ARTICLE OF CHARGES: Article -I 103 _______________________ _______________________ _______________________ Article-II _______________________ _______________________ Article-III _______________________ _______________________ 3) PARTICIPATION BY C.O. APPOINTMENT OF P.O. AND DEFENCE ASSISTANT DURING ENQUIRY, The CO Participated in the enquiry from beginning to end. He was assisted by Shri_______________ Defence Assistant, if any appointed by him throughout the proceeding. Disciplinary Authority also appointed PO vide his letter No. .......... dated ............. He was also present during the proceeding. 4) EXAMINATION AND EVALUATION OF THE CHARGES VISA-VIS EVIDENCES. Now I will examine the charges vis-à-vis the statements of PWs, DWs, Delinquent and the documents produced by them one by one: 1) Article of Charge-I "__________________________ __________________________" Plea of Guilty or Not Guilty by Delinquent :_______________________________ _______________________________ Brief of Statements and documents by PWs:_______________________________ _______________________________ 2) 3) 104 4) Brief of statements and documents by DWs and delinquent_______________________________ _______________________________ 5) Analysis & Assessment/Evaluation of evidence (Discussing pros and cons) _______________________________ _______________________________ 6) Findings, Decision and Opinion of the EO in respect to this charge _______________________________ _______________________________ Note :In the same fashion all charges are examined, analysed and findings recorded by E.O.. in the opinion The Enquiry Officer should mention only whether charges proved / not proved/ partially proved. He should not mention the nature of punishment to or exoneration of delinquent in his opinion. The complete proceeding will be submitted to competent disciplinary authority under a covering letter ORDER OF DISCIPLINARY AUTHORITY It should be elaborate and speaking. There should not be any ambiguity or contradiction. Disciplinary authority should come to conclusion after analysis of the evidences. He may agree with the findings and report of EO or may not agree. He may order de novo enquiry if the procedure is not followed and there is miscarriage of justice in his opinion. His order should contain following points. 1) a) Introduction b) Article of charge 2) a) Analysis of evidences oral documentary from both sides in respect of the charges b) His conclusion and opinion with reasoning. 3) Order of punishment/exoneration as required. 105 Supply of the copy of order to delinquent is to be duly acknowledged by delinquent. (Closed) FORMAT OF ORDER SHEET IN DE ( (CCA) Rules) Date Details of Proceeding Sign. Of PO Sign.Of DA & Time 1. 6. -----I received the office order ---No. . . . . . . dtd…. vide which I have been appointed E.O to Enquire into the charges framed against (C.O) vide memo of charges along with its exhibits 1 to 4 vide memo No.------ dated-----. I went through the memo and issued a letter No . . . of date to C.O to appear before me on (date) . . . . . . for preliminary hearing. --Sd----2. Sign of E.O. 3. under CCS Sign of Delinquent 4. 5. --- Today at 1000 Hrs (CO) --Sd---Sd-appeared before me for preliminary hearing. Preliminary hearing was done and (CO) was asked to plead guilty or not guilty. He pleaded guilty in r/o Article of charge / and not guilty in R/O article of charge.........The date for --Sd-- --Sd-- 106 Next hearing was fixed and PO, delinquent & Prosecution witnesses were informed. Vide letter No.----------dated---------. ....................................................... *********** NB: Above procedure is not exhaustive, but merely a guideline towards perfection. May use it with care. 107 COMPARISION OF PE, COI AND DE PE NO SPECIFIC ORDER IS REQUIRED. TO BE CONDUCTED BY ONE OFFICER. AIMS TO ASCERTAIN PRIMA-FACIE TRUTH IN ALLEGATION THERE IS NO DELINQUENT ONLY GENERAL ALLEGATIONS NO PWs/DWs, ONLY WITNESSES NO PRESENTING OFFICER/DA NO CROSS EXAMINATION MERELY FACT-FINDING NOT CONCLUSIVE IN NATURE NO FORMAL RECOMMENDATION BY EO GENERALLY IN INDISCIPLINE/MISCOND UCT CASES NO FORMAL PUNISHMENT ON THIS BASIS NO APPEAL/REVISION NON-JUDICIAL PROCEEDING NOT SUBJECTED TO JUDICIAL REVIEW NOT SUBJECTED TO PRINCIPLE OF NATURAL JUSTICE STRICTLY NOT SUBJECTED TO PRINCIPLE OF REASONABLE COI SPECIFIC ORDER IS REQUIRED. TO BE CONDUCTED BY A COURT OF MIN. 3 OFFICERS. AIMS TO ESTABLISH BEYOND DOUBT THE CIRCUMSTANCES OF INCIDENCE THERE IS NO DELINQUENT NO ALLEGATION AGAINST ANYBODY NO PWs/DWs, ONLY WITNESSES NO PRESENTING OFFICER/DA NO CROSS EXAMINATION MERELY FACT-FINDING CONCLUSIVE IN NATURE TO SOME EXTENT RECOMMENDATION BY EO ONLY WHEN TERMS OF REFERENCE IS THERE GENERALLY IN THE CASES OF LOSS/DAMAGE TO PERSON /PROPERTY NO FORMAL PUNISHMENT ON THIS BASIS NO APPEAL/REVISION NON-JUDICIAL PROCEEDING NOT SUBJECTED TO JUDICIAL REVIEW NOT SUBJECTED TO PRINCIPLE OF NATURAL JUSTICE STRICTLY NOT SUBJECTED TO 108 PRINCIPLE OF REASONABLE DE SPECIFIC ORDER IS REQUIRED. TO BE CONDUCTED BY ONE OFFICER. AIMS TO ENQUIRE INTO SPECIFIC CHARGES AND PROVIDE OPPORTUNITY DELINQUENT IS THERE SPECIFIC CHARGE IS THERE PWs/DWs ARE THERE PRESENTING OFFICER/DA ARE THERE IF PERMISSIBLE CROSS EXAMINATION IS THERE NOT MERELY FACT-FINDING CONCLUSIVE IN NATURE NO FORMAL RECOMMENDATION BY EO GENERALLY IN INDISCIPLINE/MISCONDUCT CASES FORMAL PUNISHMENT ON THIS BASIS MAY BE AWARDED APPEAL/REVISION IS THERE ACCORDING TO RULES QUASI-JUDICIAL PROCEEDING SUBJECTED TO JUDICIAL REVIEW SUBJECTED TO PRINCIPLE OF NATURAL JUSTICE VERY STRICTLY SUBJECTED TO PRINCIPLE OF REASONABLE OPPORTUNITY VERY 1 2 3 4 5 6 7 8 9 1 0 1 1 1 2 1 3 1 4 1 5 1 6 1 7 1 8 109