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How to Conduct/Defend Departmental Inquiry
Preparation of Defence Statement
and Defence Brief

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How to Prepare Defence Statement & Brief
Defence Statement, a Significant Source for the Charged Officer
to Plead his case

The relevant DA regulation No.6(15) concerning Defence Statement is as under:-

When the case in support of the charges is closed, the officer employee may be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the officer employee is 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

There is the option for the charged officer to state his defence either orally or writing. Advocates prefer oral presentation, where they can forcibly emphasise relevant points, through oratory and bodily gestures and draw the attention of the presiding authority. Lawyer is a professional and he handles a number of cases every day. Oral argument is his forte, and he does not find time to sit and ponder and draft a written statement. But for the charged officer the oral presentation has no specific advantage. On the other hand and it may prove to his disadvantage. It is advisable to collect all your thoughts calmly and draft the statement and present to the inquiry officer. Keep it ready before commencement of inquiry, and if you want to make changes after hearing the witnesses of the PO, you may request for a day's time, informing the position to the Inquiry Officer. Normally the defence witnesses will be taken up on the day following the closure of the Management case. It is advisable to give the defence statement on the opening day of the defence case.

How the Defence Statement should be Drafted

The defence statement is the initial representation from the charged officer. It should contain all material information that the Charged Officer wants to represent. But it need not be very lengthy, as lengthy documents are not being read completely by the Inquiry Officer and disciplinary authority later. It should be in simple language, easy to understand, with no spelling or grammar mistakes. Present your case chronologically and in the order of the imputations/articles in the charge sheet. Refute what is alleged in the charged sheet and explain what is you point of view. Rely on the memorandum and internal notes, you have placed on record at the branch at the relevant time of the incidents relating to the allegations and the reports you have submitted to the authorities.

While drafting the defence statement, it should be shown as a direct response to the charge sheet and the evidences presented by the Presenting officer in support of the Management case. Thus it is in the form of a response or reply refuting to what has been put up earlier, and not a original presentation. Some allegations are made in the charge sheet. The Inquiry Officer has gone through the same. The Presenting officer has tried to substantiate the allegations through his evidences. The Inquiry Officer has received one side of the picture. Now the Inquiry officer has turned to the defence to hear the pleadings of the defence. The defence statement is thus like a counter being filed by the defendant in the civil court, to the plaint filed by the plaintiff. Look to the charge sheet, reply each and every allegation, refuting the same. Do not bring out a detailed history of each and everything, but restrict your defence to what is alleged in the charged sheet.

Relevant Material for the Defence

In Chapter -4 of the Guidelines to the charged officers, you were advised to critically analyse the entire mass of the data pertaining to the Disciplinary Case into a Eight-Point Structure. Please refer to the same. For you the relevant material are to be drawn as listed therein under the title "Defence Strategy of the Charged Officer." (item Nos.4, 5 and 6 out of the eight items listed). But it should not be compiled as a historical narrative, without reference to the ground-requirements. You are now engaged in an on-going debate with the disciplinary authority & the P.O. and your narrative is to reply and rebut what the disciplinary authority has contended in the charge sheet, that P.O., has tried to amplify the by way of evidence. You are to present your reply/rebuttal to the moderator, who is the inquiry officer. The moderator's task is to listen to both parties and to arrive at logical conclusions, after hearing both sides.

Your defence statement need not be a summary of the defence evidences filed by you, in the same manner as the charge sheet is not a summary of the evidences presented by the P.O. As the charge sheet precedes the evidences filed by the P.O and the latter are intended to amplify the charge sheet, so too the defence statement is the primary document and the Defence evidences comes later to amplify the defence statement. Your defence statement will be strong, if done in this manner. It is a counter document to the Charge sheet. Normal course stray references of one or two letters or even more letters filed by you as defence evidences, in the defence statement is not wrong, if that is required to explain the case. But take care that the defence statement is not shown as a summary of your evidences, as you will be summarising the evidences later in the Defence Brief. Source document for you is the Case Dairy prepared by you, amplified into eight-points as above. Defence evidences are collected subsequently based on the contents of the dairy. Similarly the Defence Statement is also to be drawn, primarily looking at the charge sheet, but drawing your material from specifically three point (4,5 and 6) as mentioned above. Thus after studying the charge sheet, if the Inquiry Officer studies your Defence Statement, he will recognise he respective cases of the two. He will make the real conclusions finally on the basis of the evidences by both sides and further summarised by the respective briefs.

Selef Evidence of CO in his own Favour

After filing the Defence Statement, should the CO exercise the option toalso appear as his own witness and tender evidence? If so decided, what evidence the CO is to tender on his own behalf

Own evidence is a privilege of the Charged Office, without being an obligation. As not being an obligation, it is for the Charged Officer to choose or not to choose to offer own-evidence in the disciplinary case against him. The relevant DA Regulation No.6(16) clearly speaks that "The Officer employee may examine himself in his own behalf, if he so prefers." The choice is for the Charged Officer to make. If you feel it is a burden, do not bear the burden. But when you view it as a privilege, never leave a privilege to be lost by default. But how to analyse and make a decision? But if you are you own witness, your evidence should be taken at the end, after examination of all defence witnesses and thus you have time up to the last moment to decide the issue. At the end if you decide, your own evidence will be recorded, and you will be examined, cross-examined and re-examined just like other witnesses. If you do not opt, the inquiry officer may address a few questions to you and thereafter the disciplinary case will be closed for oral hearing with orders for respective sides to submit their written briefs.

Defence Statement submitted by the charged officer is not deemed as evidence, as a counter or written statement filed by the defendant is not deemed evidence in a civil suit. But own-evidence by the charged officer is evidence and becomes part of the evidences of the case.

When CO Should Tender Own Evidence

  1. Charged Officer need not have to appear as his own witness to explain the obvious, i.e. anything already established through defence documents and witnesses

  2. If any one of the management witness had tendered perverse evidence (i.e. evidence which is false, and the witness is aware when he delivered the evidence that it is false, but still swears to the same), own evidence by the CO is a right step to neutralise the same. In this case the perverse management witness should have been exhaustively cross-examined, as provided in the chapter on Examination of witness. The charged officer can appear as his own witness and expose truth, as against the perverse management witness. This is also suggested inthe said chapter on examining witnesses

  3. If any witness summoned for the defence fails to turn-up, or if any material witness for the defence is not permitted by the Inquiry Officer, the charged officer can appear as his own witness, and cover the deficiency

  4. If any document representing material evidence for the defence is not permitted or not produced or could not be located, the charged officer may cover the deficiency through medium of his own evidence

  5. If despite getting all documents and witnesses, it is felt on an overall review of the defence case, that there are perceivable gaps in the defence evidence, it can be filled by the own evidence of the charged officer. This can be ascertained by examining the defence statement and finding out if any assertions made therein is not covered by evidences filed by the charged officer, including the evidences that emerge in his favour during his cross-examination of management witness. If there are uncovered gaps, or if there are some points needing clarifications/elucidation, these can be covered by own evidence.

  6. Explanations based on policy guidelines, procedural guidelines/instructions issued by the bank, etc. can be explained preferably through own evidence, in addition to the narration thereof in the defence statement.

  7. The apparent damage to the charged officer on account of the rule of "presumption", where by the presenting officer tries to prove imputations as per the law of "preponderance of probability", these can be neutralised by specific and precise explanations of the points seemingly appearing against the charged officer through his own evidence.

But I will hasten to caution the charged officer about misusing this precious opportunity to himself give perverse evidence in is own favour. This may boomerang in cross-examination and the charged officer will lose credibility and the whole attempt may recoil on him. Today even if you are dismissed from service, if you deserve merit and can sustain hardwork, you can make a fresh beginning and obtain an even better position than what you hold in the last, within 3 to 5 years. Today service industry provides unlimited scope for persons with potential. This potential is not restricted with the boundaries of your counter, you have a career in many places around the globe. If your employer is unworthy of good principles, the remedy is not clicking to him through unethical counter-actions, but work for an alternative and better career, and it is not out of your way.

Preparation of the Defence Brief

Regulation 6(18) reads as under:-

  1. After completion of the production of the evidence, the officer employee and the presenting officer may file written briefs of their respective cases within 15 days of the date of completion of the production of evidence

The regulation needs further amplification. The clarifications can be seen from the Manual of CVC (Chapter -11, Paragraph -20) reproduced below:-

20. Final hearing

After the completion of the production of evidence on both sides, the inquiry officer may hear the presenting officer and the Government servant or permit them to file written briefs of their respective case, if they so desire. It will be observed from the phraseology of Rule 14(19) of the CCA Rules, 1965 that the inquiring authority has to hear arguments that may be advanced by the parties after their evidence has been closed. But, he can, on his own or on the desire of the parties, take written briefs. In case he exercises the discretion of taking written briefs, it will be but fair that he should first take the brief from the presenting officer, supply a copy of the same to the Government servant and then take the brief in reply from the Government servant. In case the copy of the brief of the presenting officer is not given to the Government servant, it will be tantamount to hearing arguments of the Presenting Officer at the back of the Government servant. [Judgement of the Calcutta High Court in the Collector of Customs Vs. Mohgd. Habibul SLR 1973 (i) Calcutta 321]. It is laid down therein that the requirement of Rule 14(19) of the CCA Rules, 1965 and the principles of natural justice demand that the delinquent officer should be served with a copy of the written brief filed by the Presenting Officer before he is called upon to file his written brief.

The following points emerge

  1. 15 days is eligible for submission of the briefs by the PO & CO.

  2. he PO has to submit the brief and furnish copy thereof to the CO

  3. Charged officer has to furnish his brief there after, as per time allowed by the inquiry officer. Normally charged officer may request for 5 to 7 days time, after the PO gives his brief.

  4. Defence Brief is a summary of the case of the defence, so also P.O's Brief is a summary of the Management case

Defence Brief is the summary of the efforts made by the charged officer so far in the oral inquiry to vindicate his name and prove his innocence. It should be comprehensive (but not very lengthy). In short it should cover, how the contentions made in the Defence Statement are clearly proved by the charged officer in the evidences presented by him, including his cross-examination of Management witnesses.

Normally the brief may mention each imputation/article charge and mentioned the position of the defence as made out in the Defence statement. Thereafter it will amplify the evidences presented by the defence to prove the contentions of the defence. Charged officer is also eligible to claim the benefit of submissions of management witnesses in cross-examination, which are in favour of the defence.

- - - : ( How to Examine & Cross-Examine Witnesses ) : - - -

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