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Provision of Essential Facilities to the Charged Officer
The first obligation of the employer after serving a charge sheet to the delinquent employee is to appraise him in toto the material supporting the charge sheet and render him due facilities in terms of making relevant records in its possession available to the charged officer to prepare his defence. The occasion to provide these facilities is the preliminary inquiry. The inquiry officer has to attend to this formality before the regular inquiry is to commence. The charged officer is generally provided a time span of about 30 days to peruse and understand the evidence of the management in support of the charges against him and to develop his own defence. There are other occasions where the inquiry officer has to provide further enabling facilities to the charged officer to present his defence. This topic is discussed in detail in this page.
The specific contexts, where the Inquiry Officer (IO), as part of his functions has to extend due support to secure the bonafide needs of the charged officer (C0) to prepare and present his defence is dealt with under two categories as under:-
as per Choice of the Charged Officer
IO should take steps to enable the CO to get the services of DAO as per his choice. The problem arises when the controlling authority of the employee mentioned by the charged officer as DAO, declines to relieve him, on the ground that his services cannot be spared. There are no guidelines in PNB (whose DA regulations I have taken as a model for our study) to meet this contingency. However there are guidelines issued by Government of India with regards to disciplinary cases against civil servants, as also by Railway Board in respect of disciplinary cases against Railway servants. These guidelines are discussed in detail in the chapter on FAQ on departmental inquiries titled Guidelines of Government of India, when the controlling authority refuses to relieve the DAO nominated by the charged officer to assist him. Providing a DAO as per the choice of the charged officer discharges the responsibility of the inquiry officer and renders the inquiry bonafide.
An extract of guidelines from CVC Manual is reproduced hereunder:
Such refusal to be bonafide must be conveyed by the authority next higher in rank to the controlling authority of the Officer asked for as DAO. Opportunities to be given to the charged office to select an alternate DAO considered suitable by him. Inquiry should not be hastily rushed through without the DAO provided. Recorded proceedings should convey the actual developments. Inquiry officer should be seen in the role of a moderator in this situation and not simply a spokesman of the management. The problem should be tactfully handled and smooth proceedings of the Inquiry should not be vitiated.
The charged officer is eligible to secure a much wider latitude in terms of approving relevancy of documents by the inquiry officer, subject to his satisfactory explanation on this point.
The PO need only to prove the facts of the imputations and need not prove the motives and other attendant matters in an inquiry. This is because as already explained the quantum of proof needed is restricted to establishing the preponderance of probability. The charged officer is then called upon to explain the facts appearing against him through evidences and his arguments, convincingly. If he fails to do the imputations will be deemed as proved, even without proof beyond doubt.
Now as a concrete example the allegation states that "there was poor follow-up in a credit account by charged officer and on account thereof the account had gone sticky. Here that the account went sticky can be regarded as a fact and the statement about "poor follow-up" may be a conclusion. As per the concept of preponderance of probability, the PO will prove the fact that the account has gone sticky. He may also prove any relevant fact, which support the conclusion that there was poor follow-up. He need not have to prove that there was poor follow-up more than that. However the Charged officer can establish through evidence that the account has not gone sticky, then he has disproved the fact.
If, however, if the CO is unable to disprove the fact that the account has turned sticky, then the IO will look what the charged officer has to explain in this regard. For example the CO may bring in evidence that there was a prolonged strike/lockout in the borrowal unit and it is only due to this reason, the borrowal account had gone sticky and that it being beyond his control, there was no omission on his part. Here the 'strike/lockout' is a relevant fact and that the account went sticky on account thereof is a conclusion, intended to explain how the account went sticky. If this argument of the CO deserves weight and credibility, it may be accepted. Then the charge is not proved, since the CO has explained the imputation.
The obvious point is that CO has to bring in evidence to explain the allegation. He has to establish in this particular case that there was a prolonged labour Strike/Lock out in the unit. At the outset the issue of a strike may appear to be not a fact-in-issue with reference to the charge sheet, but when the CO explains its material relevancy to the particular imputation, this information qualifies as a "relevant fact". The IO has to permit introduction of this evidence. Otherwise the CO would not be in a position through bonafide means to rebut the imputation
Further to give due opportunities to the CO to explain properly all circumstances appearing against him, the procedure for departmental inquiries, borrowing a leaf from the Prevention of Corruption Act, permits the CO to appear as his own witness and tender evidence in his own favour [PNB DA Regulation No.6(16)]. A similar provision is contained in Prevention of Corruption Act,1988 under Section 21 styled "Accused Person to be competent witness". However no one can force the charged officer to appear in the witness stand. It is exclusively his option and privilege. The relevant provision in P.C. Act is discussed in Chapter-5 of P.C. Act in the legal supplement. Those interested may surf the page and study the same. All these contingencies have to considered while assessing the relevancy of defence documents as explained by the charged officer.
This surfaces on occasions when the custodian of the document takes the plea that the document is a confidential record and cannot be produced. This is another pique situation for the Inquiry Officer. CVC manual gives the following guidelines:
Denial of access to documents, which have a relevance to the case, will amount to violation of the reasonable opportunity mentioned in Article 311(2) of the Constitution. Access may not, therefore, be denied except on grounds of relevancy or in the public interest or in the interest of the security of the State. The question of relevancy has to be looked at from the point of view of the Government servant and if there is any possible line of defence to which the document may be in some way relevant, though the relevance is not clear at the time when the Government servant makes the request, the request should not be rejected. The power to deny access on the grounds of public interest or security of State should be exercised only when there are reasonable and sufficient grounds to believe that public interest or sec
The Ministry of Law have held that under the existing frame work of the rules, no authority other than the Head of Department can be said to have the custody or possession of documents of the Department, though such custody or possession may be constructive. In the circumstances, a subordinate authority is not competent to claim privilege in respect of the requisitioned documents. The authority concerned should transmit the requisition to the Head of the Department for his decision and communicate the same to the inquiring Authority as soon as possible. The following may be cited as examples of documents, access to which may reasonably be denied :
The following records, may however be provided to the charged officer
Guidelines of CVC - Manual - Chapter -11
The CCA Rules do not provide for copies of documents being made available to the Government servant. The request of a Government servant to take Photostat copies of the documents should not be acceded to as that would give a private photographer access to official documents which will not be desirable. However, if the documents of which Photostat copies are asked for by the Government servant are considered by the inquiry officer to be vitally relevant to the case of the accused, for example, where the proof of the charge depends upon the proof of the hand-writing or where the authenticity of a document is disputed, Inquiry Officer should itself get Photostat copies made and supply the same to the Government servant.
In respect of documents which are required for the enquiry but are held up in a court of law, the CBI will persuade the courts to part with the documents temporarily or will get Photostat copies. Where the courts are not prepared to part with the documents and if the accused public servant insists on seeing the originals, the possibility of making arrangements for the accused to inspect the documents in the courts should be examined in consultation with the CBI.
The charged officer should know the totality of evidences in favour of the charge sheet or in support of the allegations against him, to enable him to prepare his defence. Regulation 6(10)(b)(iii) is quoted as under:-
6(b) The inquiring authority shall also record an order that the officer employee may for the purpose of preparing his defence-
Guidelines as per CVC Manual on the subject are reproduced below:
"If at the first hearing the Government servant requests orally or applies in writing for copies of the statements of witnesses mentioned in the list sent to him with the articles of charge and by whom the articles of charge are proposed to be sustained, the Inquiry Officer will furnish him with copies thereof as early as possible but in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority."
"The question whether statements made by the witnesses during the preliminary inquiry/investigation can be straightway taken on record as evidence in examination-in-chief at oral inquiries has been examined by the Department of Personnel & AR. On considering the observations made by the Supreme Court in certain cases, it may be legally permissible and in accordance with the principles of natural justice to take on record the statements made by the witnesses during preliminary inquiry/investigation at oral inquiries, if the statement is admitted by the witness concerned on its being read out to him. By adopting this procedure, it should be possible to reduce the time taken in conducting departmental inquiries. Instead of recording the evidence of the prosecution witness, 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. A copy of the said statement should, however, be made available to the delinquent officer sufficiently in advance (at least 3 days) of the date on which it is to come up for inquiry."
As regards the statement recorded by the Investigating officers of the CBI, which are not signed, the statement of the witness recorded by the Investigating Officer will be read out to him and a certificate will be recorded thereunder that it had been read out to the person concerned and has been accepted by him.
Guidelines contained in CVC Manual are reproduced hereunder:
Under Section 5(1) of the Departmental Inquiries (Enforcement of Attendance of the witnesses and Production of documents) Act, 1972 every Inquiring authority authorised under section 4 shall have the same powers as are vested in a civil court under the Code of Civil Procedure in respect of summoning and enforcing the attendance of any witness and examining him on oath, requiring the production of any document or material which can be produced as evidence etc. Thus he has the power to enforce attendance and it is his duty to take all necessary steps to secure the attendance of both sides. While the accused public servant should be given the fullest facilities by the inquiring authority to defend himself and with that end in view, the witnesses which he proposes to examine should ordinarily be summoned by the inquiring authority, it is not obligatory for the inquiring authority to insist on the presence of all the witnesses cited by the accused public servant and to hold up proceedings until their attendance has been secured. The inquiring authority would be within his right to ascertain in advance from the accused public servant what evidence a particular witness is likely to give. If the Inquiring Authority is of the view that such evidence would be entirely irrelevant to the charge against the public servant and failure to secure the attendance of the witnesses would not prejudice defence, he should reject the request for summoning such a witness. In every case of rejection, the Inquiring Authority should record his reason in full for doing so. The inability to secure attendance of a witness will not vitiate the proceedings on the ground that the government servant was denied the reasonable opportunity. The Supreme Court in the State of Bombay vs. Narul Latif Khan (AIR 1966 SC 269) have observed that if the accused officer desires to examine witnesses whose evidence appears to the Inquiry Officer to be thoroughly irrelevant, the Inquiry Officer may refuse to examine such witnesses but in doing so, he will have to record his special and sufficient reasons.
There can be no objection in principle in accepting the request of the public servant under enquiry to summon the presenting officer or his assisting officer as a defence witness, if in the opinion of the inquiring authority, their evidence will be relevant to the enquiry.
The notices addressed to the witnesses will be signed by the Inquiry Officer. Those addressed to witnesses who are Government servant will be sent to the Head of the Department/Office under whom the Government servant who is to appear as witness is working for the time being with the request that the Head of the Department/office will direct the Government servant to make it convenient to attend the enquiry and to tender evidence on the date and time fixed by the Inquiry Officer. Non-compliance with the request of the Inquiry Officer by the Government servant would be treated as conduct unbecoming of a Government servant and would make him liable for disciplinary action
The notices addressed to non-official witnesses will be sent by registered post A.D. in cases emanating from the CBI, the notices addressed to non-official witnesses may be sent to the Superintendent of Police, SPE branch concerned for delivery to the witnesses concerned. The presenting officer, on behalf of the disciplinary authority, with the assistance of the investigating officer will take suitable steps to secure the presence of the prosecution witnesses on the date fixed for their examination.
As regards defence witness, an equitable stand has to be followed and there should be no discrimination, once the justification for the defence witness and his/her material relevance as witness is accepted. Summons for all Defence Witness for appearance at the place on the date and time should be prepared signed by the Inquiry officer. These may be handed over to the charged officer for proper delivery. The IO should also send copies of summons in respect of defence witnesses, who are employees of the bank to the respective controlling officers, to enable such witnesses to be relieved for giving evidence.
Does the witness summoned by the inquiry officer on behalf of the defence has option not to attend the proceedings? All employees of the Bank summoned as witness by the inquiry officer irrespective on whose behalf should be treated at par. Perjury by any witness should be treated equally as a serious misconduct, if proved. Every witness summoned is expected to participate in the inquiry. Valid reasons for non-attendance to the satisfaction of the inquiry officer must be submitted in either case. Thus there can no discrimination between management witnesses and defence witnesses in a fact-finding inquiry. It is the duty of the inquiry officer to regulate this formality equitably. In any case defence evidence should not suffer by default, i.e. non-production (though available and within the power of the Bank to produce). Then it is not an objective inquiry.
Sometimes allegations are made that a request or representation was made but the inquiring authority did not consider the same. In order to avoid such complaints the inquiring authority should record a note in the Daily Order Sheet on the very day stating the gist of the request of representation made and the orders passed thereon. Such notes should form part of the record of the inquiry.
If the Government servant alleges bias against the inquiring authority, the inquiring authority should keep the proceedings in abeyance and refer the matter to the disciplinary authority. He should resume the inquiry only after he is advised by the disciplinary authority to go ahead with the inquiry. In case the Government servant moves the application to the appellate authority against the appointment of a particular inquiring authority, the proceedings should be stopped and the application, along with other relevant material, be referred to the appropriate appellate authority for consideration and appropriate orders.