When investigation is ordered against you, it is a partial alienation of you by your employer. The interests of the employee and the employer no longer synchronize. A divider wall has been erected, and the threat area for you now is also from the employer. You now stand shifted to the phase of seeking the shield of protection from threats of punishment by the disciplinary authority.

While working for your protection, follow the rule that discretion is better than valour. Unfortunately in actual practice many officers awake lately at this stage, after completely neglecting their own personal safeguards all along. They are still ignorant of the dimensions of the split that has marked in their relations with the employer. They try belatedly to control the damage, that has already gone beyond control. They still suffer a misconception that the object of calling for a reply from them for the charge sheet is "not only to find out whether the charges framed are admitted or not, but also to give to the employee concerned an opportunity to state the line of his defence and to enable the authority concerned to see whether the accused officer can be exonerated straight away on the basis of his explanation, if it was satisfactory, or if there was to be an enquiry to limit its scope to the defence actually set up" (quotation from case law -State of Andhra Pradesh V.S.Kameshwar Rao, AIR 1957 AP 794). This motivates the charged officer to furnish a very lengthy and elaborate reply, explaining events from "pre-dawn to dusk" and trying to convince the employer of his bonafides. What was not appreciated as per explanations in the pre-investigation stage, will normally not likely to find favour after issuing a charge sheet and setting into orbit the statutory process. If the report of Investigation is favourable to you, the case would have been closed already without the charge sheet. The disciplinary case has moved to the final stage, from the administrative to the quasi-judicial or statutory phase.

The more you elaborate your defence, you are only exposing your hands in advance, without knowing what material is going to be produced against you in support of the charge sheet. Your elaborate reply will educate the presenting officer, when appointed, on the likely line of your defence, in advance and enable him to carefully structure his evidence. It may lead to his bringing additional documents and witnesses to counter your line of defence, which he will not be in a position to do, had you not exposed your reply.

There are two cardinal principles that you must keep in your mind. The first is that your defence becomes strong when stated at the earliest opportunity. But in civil court/inquiry proceedings, there is also what is known as the rule of "the Burden of Proof" (Sec.101 Indian Evidence Act). The meaning of the phrase "burden of proof" is not defined in the Evidence Act. The burden of proof as a matter of law and pleading-the burden, as it has been called, is that of establishing a case. This burden rests upon the party, whether plaintiff or defendant, who substantially asserts the affirmative of the issue and not upon the party who denies it; for a negative statement is usually incapable of proof.

The management asserts the positive, i.e. that you are at fault and you, the charged officer pleads the negative, i.e. that you are not at fault. It is for the Management to first put up evidence to show that you are at fault and your responsibility, for response rests only thereafter. Thus the burden of proving the charges against you initially rests with the management. You are, therefore expected not to rebut to the charges at the initial stage, but only to deny the charges and silently listen and understand fully the material that is placed by the management in support of its case against you. Your responsibility for rebutting the charges and vindicating yourselves arises only thereafter. In other words you are to disclose your hands only after the other side first unfolds its hands and allow you to see what all they hold.

Secondly, you have the following further opportunities to plead your defence at prescribed stages of the inquiry. What ever you hastily disclose now, should not contradict the evidence that you will be in a position to adduce at the relevant stages later, after properly preparing your case.

1. Your Defence statement;

2. If you choose (but not otherwise), you can appear as your own witness and testify in your favour and meet cross-examination effectively;

3. Defence Brief Fresh evidence cannot be introduced in the defence brief. But many things can be clarified and explained based on evidence already produced.

On these occasions, you are in a better position, as you have heard the totality of the Management case against you. You can pin-point your reply, more appropriately, as you know now the strength and weakness of the respective cases.

What ever reply you give now (pre-enquiry stage) to charge sheet is not officially a part of records of the inquiry, when an inquiry is subsequently ordered, but a copy of your reply will be with the presenting officer and inquiry officer. Thus your reply may not be of benefit to you, but it serves the interests of the presenting officer to know your line of defence in advance.

It is important to understand the category of misconduct that is alleged against you. Officers rarely get a charge sheet alleging disorderly or unruly behaviour, which pertain to the category of administrative lapses. An Officer may normally be served a charge sheet questioning the appropriateness (technical lapse) or the bonafides (lapse with vigilance angle) of any one of his decision or actions executed based on such decision, when such decision/action bring adverse results or the threat of potential damage to the employer. Such decision is looked in the background of the routine-guidelines/ instructions issued to the officer and the charge is framed alleging disregard or non-adherence of such guidelines/instructions.

In case of a technical lapse, the inquiry is conducted by the Bank independently and in case of a lapse with vigilance angle, the compulsory advisory jurisdiction of the CVC is recognised and their advice obtained in stage-1 (before issuing the charge sheet) and stage-2 (after the inquiry is completed, before awarding punishment). If the disciplinary case is under consultation with the CVC, the inquiry may be conducted by the Commissioner for Departmental Inquiries attached to the CVC appointing such CDI, as the inquiry officer by the disciplinary authority.

Before proceeding to reply the charge sheet, you must prepare your case from two pillars, i,e,

• Thorough knowledge of all the data & information related the Issues covering the imputations.(facts of the case)

• Knowledge of rules and procedures of Inquiry in pursuing your defence. The rules you seek should benefit you materially and mere technical snags to defer and delay proceedings should not be resorted to. This is counter-productive.

We have already seen that Information is strength and knowledge is power. You are stronger when you have better information, through proper home-work, as against the presenting officer. You are more powerful, when you have a more advanced knowledge of your rights, as a charged officer and the obligations of the disciplinary authority, inquiry officer and the presenting officer, with regards to conducting the inquiry.

Normally 90% of the investigations carried out are by non-professional investigators, when the job is not entrusted to CBI, but attended departmentally. When entrusting the job, the rank and seniority of the person and his training and proficiency in carrying out such investigations are not looked into. Juniors carry out the job. They adopt a end-view and start searching for the reasons that can be identified to the incident or adverse situation that was pre-conceived as per gossips in the lobby or mentioned in the brief given to them, while entrusting the assignment. This is a subjective view and the mind is already preset with certain provisional assumptions before starting the investigation. The investigation tries to search for suitable premises to confirm what is already provisionally held. Subjective view may be partial and frequently one-sided, and not comprehensive. Other deficiencies of departmental investigation are that the Investigating officer generally never maintains a case dairy. He is allowed too little time for the job. He hastily observes a a few things and directly proceed to draft his report.

But the management solely relies on such investigation report and deems it as the source documentation for the disciplinary case. The Investigating officer himself is expected to submit a draft charge sheet. If not, a charge sheet is drafted exclusively relying the investigating report and no other document. It is the fountain source from which all the convictions and beliefs assumed in the charge sheet emanate. The Investigation report is not original source or record, but a post-facto derived document compiled by an individual from his observation and study of the source material. For the charged officer the original case dairy prepared from these source material is the rallying point and not the Investigation report.

Analyse the contents of the investigation report and the areas of variance, if any, between the investigation report and the source material.

• List the shortcomings of the Investigation Report, under categories - "non-observation", "mal-observation" or "errors-of-principle"

• In the first place the Investigating Officer (IO) has failed to observe some vital points representing the fallacy of non-observation

• Secondly he has wrongly observed certain facts and this has resulted in "misrepresentation" in the charge sheet (also called "fallacy of mal-observation).

• Thirdly he must have overlooked some circular instruction, guideline, or provision in the manual, or policy guidelines odf the bank, which the charged office had relied and had failed to pass on the benefit to the charged officer ("errors of principle")

• Errors by the IO in his report may be on both sides, i.e. against your interests, or may also be in your favour. If it be in your favour, it may be a temporary feature, as in later stages, an efficient presenting officer is bound to detect the same and plug the loophole.

Investigation reports and charge sheets are frequently imperfect, because persons who carry out these assignments are not well-versed and suffer from imperfect knowledge of the tasks entrusted to them. This in turn is because the Banks hasten to rush through a number of disciplinary cases, with scant respect for the quality of these products. An exhaustive web-page on drafting Charge-sheets is given in this site, where the normal deficiencies in drafting charge sheets are pointed out. You may view the page for a comparative assessment of the manner in which the charge sheet served on you is drafted. If the charge sheet is not drafted by a person proficient and experienced with the job, but by one, who refers to specimens of earlier charge sheets issued on other officers, and borrows phrases therefrom to put into shape the current charge sheet, it is bound to be of sub-standard quality. To the extent the charge sheet contains defective statements, that are not factual or omits relevant statements, that are essential, you may consider that the disciplinary authority, without his knowledge, has issued you an unsustainable or at least an imperfect charge sheet.

You should also know the difference between the articles of charge and the statement of imputations. A charge sheet may consist of more than one articles of charge and each articles of charge may in turn consists of more than one imputation. The statement of imputation consists of narrative facts, allegation-wise. Articles of charge is the generalised or summarised statement of the misconduct that has been committed on account of acts mentioned in the statement of imputations. In other words the article charge is the summarised description by giving or identifying a name or otherwise categorising the misconduct to bring the same under the ambit of the Conduct Regulations. In this way different types of misconduct are pre-defined and mentioned under general description or categorisation, in the Conduct Regulations, as different types of Crimes are listed under pre-defined categories in the Indian Penal Code. Thus what is contained in the articles of charge is not hard facts, but summarised conclusions, from the facts mentioned under the imputations relating to that articles of charge. The statement of imputations is thus like the "Premises" and Articles of charge is the "conclusion" drawn from the premises.

Next step is to fortify your information resources through a study and analysis of the material contents of the charge sheet. The charge sheet consists of "facts-in-issue" ( or otherwise called allegations) and relevant facts, i.e. information which are built to amplify and elucidate the facts-in-issue. For example, the charge sheet starts with the words-

Mr.so..and..so worked as Manager at Branch X from....to.....(periods)

This particular statement is a relevant fact and not a fact-in-issue. After this charge sheet proceeds to add that during this period at the Branch Mr...so..and so "misused his position as Branch Manager and committed the following acts detrimental to the interests of the.....(organization)". This statement is a fact-in-issue. The Inquiry has to conducted to find the truth of the facts-in-issue and not the relevant facts. But proving relevant facts would help to prove the facts-in-issue subsequently.

By way of summing up

1. What are the core allegations (facts-in-issue) in the charge sheet and which relevant facts in support of the same are acceptable to you and which are to be disputed. This identifies the residual portion as the quantum of factual error in the charge sheet. Such errors may be formal errors (like mistake in dates, quantum of amounts involved etc.) Do not give much importance to these errors, as these will not be to your benefit in any case. But the material errors in the statement of facts is appropriately relevant to the building of your defence.

2. Study the logic built behind the charge sheet i.e. the conclusions drawn from the facts presented. If the supporting facts are erroneous, the conclusions cannot be correct. But if the facts are correct, the conclusions may still be rated as "hasty" or "far-fetched". Are there any conclusions of this category in your charge sheet.

Normally you are given 7 days time for replying the charge sheet and optionally you may also be allowed to refer to the relevant records. You are not eligible for the service of a defence-assisting officer at this stage. Avail the opportunity to refer to the relevant records, if given, and again examine the source records, from the point exclusively of the facts-in-issue and relevant facts mentioned in the charge sheet. De-link those issues and matters, which have not been referred in the charge sheet. Update your case dairy accordingly. Identify all such records that do not corroborate the "relevant facts' and the "facts-in-issue" mentioned in the charge sheet. These are to be your evidences later.

Prepare a reply to the charge sheet. Specifically and categorically deny each and every imputation and articles or charge, item by item. You may also deny other relevant facts mentioned in the charge sheet, which are not factual. You have heard the allegations, but you are not shown the material supporting these allegations, which the management is going to rely. Specifically inform that your explanation of the allegations would be submitted after knowing the material on which the charges are based. You may also express specific questions by way of seeking clarifications of the ambiguities in the allegations leveled. Thus if it is alleged that the borrower has been over-financed, question the date from which he is deemed to have been over-financed and extent thereof. This particular borrower may be dealing with the branch for over a decade, while you might have joined the branch only an year ago. You may also mention a rider that these information are relevant for you to know for submitting a correct reply. Several such questions will point out the material shortage with which the charge sheet has been drafted and put the presenting officer to ponder for answers for a long while. The anomalies of the charge sheet should be brought out only like this indirectly and not categorically.

Once this is done prepare yourselves for the inquiry to be ordered. For your information the convention is not to close a charge sheet once issued without either an inquiry or awarding a minor punishment without inquiry on the basis of the reply by the charged officer. For Government servants awarding of minor penalty is not covered by the protection extended under article 311, which is applicable only when punishments of dismissal, removal or reduction are inflicted. Even the law courts have held that the principles of natural justice are not applicable, when a punishment of "censure" is awarded. The system of conducting disciplinary case for awarding minor penalties does not include extension of natural justice to the delinquent officer. Such provisions are therefore liable to be made arbitrary use of.

As far as the charged office is concerned it does not differentiate, if one future increment is stopped in his existing scale (by way of minor punishment) or it is reduced by one increment from the present level (describing it as a major penalty). The first punishment can be inflicted without an inquiry. But not the second. So it is not advisable to accept minor punishments without inquiry. So do not give elaborate or lengthy explanations to the charge sheet, but give pointed answers as advised by me earlier, without disclosing the material part of your defence, fondly anticipating that the management will prematurely close the case.

Try to bring out the discrepancies or anomalies in the charge sheet in an effective manner, as advised earlier. Attack the defects in the charge sheet in a deft manner, without categorically mentioning them. Charge sheet is not requested by you. The management has opted this choice. Let the management conduct a bonafide inquiry and find out the truth. For your benefit the process of replying the charge sheet is described in detail in a separate web page titled How to reply the Charge Sheet. Please be guided by referring to the same.

Once the reply to the charge sheet is submitted by you to the disciplinary authority, the responsibility for further action shifts to the disciplinary authority, who may order the oral inquiry and also issue appointment orders of the inquiry and presenting officers and invite you to name your defence-assisting officer. But you may in anticipation start preparations for the regular inquiry along with the officer selected by you for your defence assistance.