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[Reproduced from Publication of CVC]
DISCIPLINARY PROCEEDINGS - II - Oral Enquiry (CHAPTER XI)
(Page: 7 of 10)
Fixation of date and place of hearings (Paragraph 1)
1.1 On receipt of the order of appointment and the documents enumerated in paragraph 26 of Chapter X, the Inquiry Officer will send a notice asking the Government servant to present himself before the Inquiry Officer at the appointed place, date and time, within 10 days. In the notice, the Government servant will also be asked to intimate to the Inquiry Officer, before the date fixed for the first hearing, the name of the Government servant or of the legal practitioner, as the case may be, who will be assisting him in the presentation of his case during the enquiry together with a copy of the permission, where necessary, of the disciplinary authority allowing him the assistance of a legal practitioner. The Inquiry Officer will also intimate the Presenting Officer in regard to the date, time and place of the preliminary hearing. The Presenting Officer will bring with him copies of the statements of the listed witnesses and the listed documents.
1.2 The first hearing will normally be fixed to be held within 10 working days from the date of receipt of the articles of charge by the Government servant. The period of 10 days may be extended by another 10 days by the Inquiry Officer at his discretion.
1.3 The date, time and venue of the next hearing will ordinarily be fixed by the Inquiry Officer and intimated to both parties or their representatives under their written acknowledgement before the adjournment of hearing. If the Inquiry Officer has to make a change in the date, time or venue of the next hearing for any reason, he will send a notice of the next hearing to all parties concerned sufficiently in advance.
1.4 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 will intimate this fact to the controlling authority of the Assistant 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 concernedon the due date or dates to attend the inquiry, the Inquiry Officer, the accused official and the Government servant chosen for assistant the accused official may be advised well in advance.
First Hearing (Paragraph 2)
If the Government servant, who has not admitted any of the articles of charge in his written statement of defence or has not submitted any written statement of defence, appears before the Inquiry Officer at the first hearing, the Inquiry Officer will ask him whether he is guilty or has any defence to make.
If he pleads guilty to any of the articles of charge, the Inquiry Officer will record the plea, sign the record and obtain the signature of the Government servant thereon. The Inquiry Officer will then return a finding of guilt in respect of those articles of charges to which the Government servant pleads guilty.
If the Government servant fails to appear on the date and time fixed for the hearing or appears but refuses or omits to plead or pleads not guilty, the Inquiry Officer will ask the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge and will adjourn the case to a date not later than 30 days. The Inquiry Officer will also then send a programme of inquiry to the Central Vigilance Commission ( in the case of Commissioners for Departmental Inquiries ) and the Chief Vigilance Officer (in other cases), as the case may be.
The disciplinary authorities should be kept posted with the progress of oral enquiries. The Presenting Officer should send brief reports of the work done at the end of each hearing to the disciplinary authority in the prescribed proforma.
The accused public servant should be asked to indicate the documents, out of the list of documents annexed to the charge-sheets whose authenticity and genuineness he does not dispute, in order to obviate the need to examine formal witnesses to prove such documents.
Inspection of documents by the Government servant (Paragraph 3)
While adjourning the case, the Inquiry Officer will also record an order that the Government servant may, for the purpose of preparing his defence:
inspect, within 5 days of the order of within such further time not exceeding 5 days as the Inquiry Officer may allow, the documents mentioned in the list of documents sent to him with the articles of charge, and
submit a list of witnesses to be examined on his behalf together with their full addresses, indicating what issues they will help in clarifying.
In the order referred to in paragraph 3.1 above, the Government servant will also be asked to apply within ten days of the date of the order or within such further time not exceeding 10 days as the Inquiry Officer may allow, for access to any documents which are in the possession of Government but are not mentioned in the list of documents sent to him with the articles of charge. While asking for such documents, the Government servant will also include the relevance of the documents to the presentation of his case.
On receipt of such request, the Inquiry Officer may, for reasons to be recorded by him in writing, refuse to requisition such of the documents as are, in his opinion, not relevant to the case. However, with regard to those documents, about the relevance of which he is satisfied, the Inquiry Officer will forward the request of the Government servant to the authority or authorities in whose custody or possession the documents are kept with a requisition for the production of such documents of document or a specified date.
On receipt of requisition from the Inquiry Officer, the authority having the custody of the requisitioned documents will produce them before the Inquirey Officer as the specific date. However, if the Head of Department is satisfied, for reasons to be recorded by it in writing, that the production of all or any of the documents will be against the public interest or prejudicial to the security of the State, it will inform the Inquiry Officer accordingly and the Inquiry
Officer will, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.
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 defense 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 security of the State will clearly suffer. Such occasions should be rare.
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 ěconstructiveî. 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 :
Reports of a departmental officer appointed to hold a preliminary enquiry or the report of the preliminary investigation of SPE. - These reports are intended only for the disciplinary authority to satisfy himself whether departmental action should be taken against the Government servant or not and are treated as confidential documents. These reports are not presented before the Inquiry Officer and no reference to them is made in the statement of allegations. If the accused officer makes a request for the production/inspection of the report of the Investigating Officer, S.P.E., the Inquiring Authority should, instead of dealing with it himself, pass on the same to the Disciplinary Authority concerned, who may claim privilege of the same in public interest as envisaged in proviso to sub-rule (13) of Rule 14 of CCS (CCA) Rules, 1965.
File dealing with the disciplinary case against the Government servant. The preliminary enquiry report and the further stages in the disciplinary action against the Government are processed on this file. Such files are treated as confidential and access to them should be denied.
Advice of the Central Vigilance Commission. - The advice tendered by the Central Vigilance Commission is of a confidential nature meant to assist the disciplinary authority and should not be shown to the Government servant.
Character roll of the officer. - The CR of the official should not be shown to him
A copy of the F.I.R. may be made available to the accused, if asked for. If report of preliminary enquiry is referred to in the article of charge or statement of allegations, it has to be made available to the accused Government servant.
On the date or dates fixed for the purpose, the accused Government servant and/or the official assisting the accused Government servant will be given facilities to examine the documents referred to in sub-paragraphs 3.1 (i) and 3.4 at such place as the Inquiry Officer may direct in the presence of the Presenting Officer or any other gazetted officer deputed for the purpose by the disciplinary authority or the other authority having the custody of the records. If the Government servant desires to keep notes or extracts, he should be allowed to do so without let or hindrance. The Presenting Officer or the officer in whose presence the documents are inspected by the Government servant will ensure that the documents are not tempered with by the Government servant during the course of inspection.
Supply of copies of documents to the Government servant (Paragraph 4)
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, Government servant should itself get photostat copies made and supply the same to the Government servant.
Documents held up in Courts (Paragraph 5)
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.
Statement of witnesses (Paragraph 6)
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.
Summoning of witnesses (Paragraph 7)
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 is producible 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.
Production of documentary evidence on behalf of the disciplinary authority (Paragraph 8)
On the date fixed for the inquiry, the Presenting Officer will be asked to lead the presentation of the case on behalf of the disciplinary authority. The Presenting Officer will draw the attention of the Inquiry Officer to facts admitted by the Government servant in his written statement of defence, if any, so that it may not be necessary to lead any evidence to prove such facts (vide para 26.2 of Chapter X).
The documentary evidence by which the articles of charge are proposed to be proved will then be produced by the officer having custody of documents or by an officer deputed by him for the purpose. The documents produced will be numbered as Ex S.1, Ex. S.2 and so on. The Presenting Officer should not produce the documents as in that event he places himself in the position of a witness and the accused officer may insist and cross-examining him.
Examination of witnesses on behalf of the disciplinary authority (Paragraph 9)
The witnesses mentioned in the list of witnesses furnished to the Government servant with the articles of the charge will then be examined, one by one by or on behalf of the Presenting Officer. The witnesses may be numbered as SW 1, SW2 and so on. During the examination the Inquiry Officer may not allow putting of leading questions in a manner which will allow the very words to be put into the mouth of a witness which he can just echo back.
9.2 Rule 14 (14) of CCA Rules provides that the witnesses may be examined by or on behalf of the Presenting Officer. Absence of PO on any particular hearing would not necessarily imply postponment of hearing if an authorised person is present on behalf of the Presenting Officer. The substituted officer need not be formally appointed as Presenting Officer.
In complicated cases involving technical aspects, the Presenting Officers drawn from CBI are not sufficiently equipped to effectively cross-examine the defence witnesses. In such cases, it would be helpful to the Inquiry Officer as well as to the parties if the first prosecution witness to be called is an expert of the Department concerned who may explain the background and various technicalities of the matter. The Presenting Officers should also consult the departmental experts and familiarise themselves with technical aspects of the matter before the inquiry commences as also before the cross-examination of the defence witnesses. The Ministries/Departments should extend necessary help and facilities to the Presenting Officers in consulting the departmental experts and obtaining their assistance on technical aspects of the case. The technical experts, however, should not assist the Presenting Officer during actual cross-examination