If you have studied elementary principles of Business Management, prepare a SWOT analysis, based on your study of the discrepancies, noted in the Investigation Report. This is because unlike the PO, you have a dual responsibility. The PO has only to substantiate the allegations in the charge sheet. He can prove the bare facts, and need not have to prove the motive on the part of the charged officer. He has the benefit of the concept of "preponderance of probability". But the charged officer has not only to dismantle the structure built by the presenting officer, but he has also to extend his own submission that explains his conduct satisfactorily. First he has to prove that what the presenting officer asserts is not the truth. Next he may also have to expound what is the actual truth. This is based on the doctrine of "presumption". These concepts are clearly explained in the web-page on Departmental Inquiry, Page: 3 on Quantum of Proof. You may recap the principles for your benefit.
Assessment of the strength and Weakness of the Management
This may appear to put the management in undue advantage, added to its mighty resources and powers. This is not so. The strength on account of size also brings about inherent weakness. You are an individual and can take quick decisions and act at once precisely and conclusively. Management is a vast and widely-spread hierarchical structure. It suffers from bureaucratic red tapism on account of the system of circuitous movement of files through different levels. Different persons handle a job without a unity of purpose, and without inter-se communication (conference) amongst themselves. Indian Management in the Public offices do not know what are work-groups or task-centered-teams. If you send a letter to the disciplinary authority, it will not be handled by him directly. It goes with the file to a caseworker. He takes his own time to append a note on the letter and send to the next level in the hierarchy. At this stage some provisional decision is suggested on the letter and then it goes to the disciplinary authority. A horde of files are placed before the disciplinary authority, along with the file, that contains your letter. At every point there may be delay and the file also can re-take a backward movement, when a note is returned seeking more information from the previous point.
An inquiry may be over in 3 days time, but the inquiry officer needs 15 days to submit his report, and the disciplinary authority may take 1 to 3 months to dispose of the case. All these may finally pertain to what had happened originally on one day at your branch, creating the issue at inquiry. Those who use personal computers will know that less time is spent in data processing or data-inputting. But more efforts and time are needed to boot the computer, create folders and files open files and folders, save your work, delete unwanted files and host of other incidental routines. Similarly Public Offices today spend more time and attention inwards, on their internal administration. As the size of the organization grows 100%, this internal chorus multiples 150% to 200%. Otherwise will any sane organization spend lakhs of man-hours in a year (the figure is as per calculation) only to award punishment like reduction of 1 to 3 increments, censure, compulsory retirement (generally six months preceding regular retirement). PNB spends Rs.6 to 10 Crores annually for conducting departmental inquiries. This was the pattern in the nineties in PNB. I do not know the present culture. But why this enormous delay, where it should be possible to deliver orders at a very short notice?
It is the hang over of the bureaucratic and hierarchical system of management, where all routine work of handling files is entrusted down the line, and the top executives do not draft letters or orders, but only sign them. The real or basic work is handled at the department by line managers appointed for each task, who each specialises in a single job. These line managers in fact carry out most of the functions of the disciplinary authority. They do not merely handle secretarial service, as do the Registrar's office in a judicial court, but they also process cases, and put up notes for the benefit of the disciplinary authority. This anomaly is explained more clearly in another web-page, dealing with Second stage Reference to the charged officer from the disciplinary authority.
If you have better preparation and have done your homework properly, it will not be difficult for you to keep the initiative, and render management at the receiving and reacting end. If you have serious problems, do not file a writ petition in the High Court. These are explained in the Legal Supplement in the chapter styled "Public Servants & Legal Awareness". I am not repeating the contents here even in a summarised form, as I want everyone to go through the entire chapter styled LegalAwareness.
Look Ahead and Foresee the Charge Sheet & Management Evidences
If the charged officer is an expert and can articulate the working of the DAC department having jurisdiction over him, immediately after receipt of the investigation report, he can himself foresee and draft a probable charge sheet, that by custom the authorities would likely be delivering on him. You can proceed further and project a list of likely documents and probable witnesses that will be filed by the presenting officer. On this basis he can start provisionally preparing his defence case immediately, without waiting for actual developments to materialise.
There is an advantage in this exercise. When the charge sheet is actually served, you may compare the charge sheet with the draft earlier prepared by you. What are the points of variance between the two charge sheets, the real served on you and the draft you prepared. If the real charge sheet is more severe than the draft prepared by you, you may conclude the DAC department will be tough with you and vice versa.
Similarly you will compare the list of documents and witness actually filed by the PO, with the projected lists you had visualised and assess how far the PO is going to take the task seriously. Irrespective of these comparisons, this exercise gives you a head start with your preparations for the defence. This adds to your speed. In the modern world speed counts a lot in ensuring you ahead of others. This is what should be the advantage of your working, compared to the bureaucratic and red-tape infested ways of the authorities.
Final Assessment of the Total Disciplinary Case under Different Perspectives
Eight-Point Structure of the Disciplinary Case
For the management the investigation report is the primary and source document. But it is not going to be produced in the inquiry. It may not even be disclosed to the charged officer. The charge sheet is is but a child of the parent, i.e., the investigation Report. How far the discrepancies of the investigation report are carried forward in the charge sheet? And what are the fresh discrepancies that have been added while shifting data from the investigation report to the charge sheet? This is an exercise to appraise how much of the charge sheet is based on substance and how of it is based on "distortions" (or scrap).
After this analysis, you may update your case dairy with this additional information.
The disciplinary case is now structured as under:-
Totality of facts & information relevant to the issues in dispute, or in other words the whole undistorted picture. This should be in the possession of the charged officer, but not available to the presenting officer, unless he has made an independent study, going to the roots of the matter
Part of No.1 above observed and included by the Investigating officer in his report. No.2 is part of No.I. This is because the Investigating officer may not have observed all the facts. He also may not have observed some facts correctly.
Distortions caused in No.2 on account of deficiencies in observation by the Investigating officer. No.3 is a distorted portions of No.2.
Portions of No.3 transferred to the charge sheet, with inherent distortions.No.4 is part of 3, which is part of No.2
Fresh distortions caused in the process of shifting material from the Investigating report into the charge sheet. The resulting picture No.5 is the understanding of the inquiry case by the Disciplinary Authority.No.5 is part of No.3 plus No.4 (with further distortions)
Residual portion of No.1 not taken into account in the charge sheet
Statement of correct fact, as contained in No.1 and corresponding distorted facts in Charge sheet. The distorted facts in the charge sheet is made up of the sum total of item 4 & 5.
Statement of facts in No.1 correctly transferred to the Charge sheet. These are relevant facts in the charge sheet which will not be disputed by the charged officer
Defence Strategy of the Charged officer
Look to item No.6. Collect facts that may help to justify your case. But do not disclose these in the beginning in your written statement of reply to the charge sheet
Ignore facts in item No.8. These are relevant facts in the charge sheet which will not affect your interests. You need not have to dispute these facts
Locate suitable evidence to prove distortions stated in No.4 and 5, either oral or documentary.
Through this process you must disprove adverse portions of the charge sheet and prove the whole item No.1 in the list above. It is assumed that you are really not at fault and No.1 explains clearly your conduct. While it is assumed that your bonafides are above board, there may be procedural or technical deficiency in your role. These are the things that you must handle in the pre-emptive stage. If anything is still there carefully try to explain and justify them.
Types or Pleadings that the Defence May Adopt
In the first place the charged officer may deny the allegation and bring in evidence to prove that the allegation is incorrectly made
In the second place, the charged office may not exactly deny the allegation, but he would concentrate on his decision/action and try to explain that it was logically taken at the best interests of the Institution. He can bring in evidence in support of this plea
Thirdly the charged officer, who is confronted with an allegation of a misconduct as per a specific rule of procedure, may point out a proviso to that rule permitting exceptions and justify his action under the proviso
Fourthly the charged officer will point out system deficiencies that has resulted in the adverse developments.
Fifthly, the charged officer will point out to the Bank's Policy Defining genuine Risks taken turning Adverse Results which cannot be considered as vigilance or technical lapses and plead that though some financial loss may be anticipated, it was due to genuine business risk involved and not on account of misconduct or intended action on the part of the charged officer
Fimiliarizing the Procedural Complexities of Departmental Inquiry System
After fortifying your knowledge of the factual contents of the disciplinary case, you must now specialise in understanding the complexities of statutory process of conducting a departmental Inquiry. This you must study under two heads:
The obligation cast on the disciplinary authority, Inquiry and presenting officers, which they must comply
Privileges and principles of natural justice that should be extended to you
What are privileges. Does a charged officer has any statutory rights, when the principles of natural justice are not codified and only custom-developed by decisions of the judiciary. This is correct as far as the statement about principles of natural justice is concerned, but a departmental inquiry in a PSB is conducted under statutory provisions, codified under the DA Regulations, and once a charge sheet is signed and issued by the disciplinary authority, it has no options than to proceed systematically with the inquiry as per the letter and spirit of the DA regulation. Non-adherence to the DA regulation or disregarding its material provisions thereof will result in the inquiry becoming null and void.
The Obligations cast on the Disciplinary Authority vis-a-vis the charged officer
Competancy of the Disciplinary Authority:
The person issuing the charge sheet must be one, who has been permanently and properly appointed to the post and must be on duty as such on the day he issues the charge sheet. Officers senior in rank to the disciplinary authority can also issue the charge sheet. But executives temporarily acting in the post of the disciplinary authority, when the post is vacant cannot issue charge sheet. This is because issuing a charge sheet is a statutory function and statutory function cannot be delegated.
Awarding of major penalties:
The disciplinary authority cannot award any major penalties without first issuing a charge sheet with (a) statement of imputations, and (b) articles of charge, and subsequently conducting a regular oral inquiry
Appointment of Inquiry Officer:
The disciplinary authority is obliged to appoint a public servant as Inquiry officer, who is
Senior in rank to the charged officer
Is not his immediate controlling officer
Should not have any material interest in the subject matter covering the charge sheet. That is he should not have handled the transactions in any manner, or in way connected thereto
Normally he should not have acted as Inquiry Officer in any earlier departmental inquiry against the charged officer.
Extension of Second Stage Natural Justice:
After conclusion of the oral Inquiry and receipt of the report from the inquiry officer, the disciplinary authority has to forward a copy of the report of the inquiry officer to the charged officer and allow him the opportunity to make a representation against the findings of the inquiry officer, if he so desires. This is based on a Supreme Court of judgement upholding that even though the second stage of the inquiry envisaged by Article 311 (2) has been abolished by 42nd amendment to the Constitution, the delinquent officer is still entitled to represent against the conclusions of the inquiry officer, holding that the charges or some of the charges are not established. It has thus been laid down that wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with the proposal for any particular punishment or not, the delinquent officer is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desires, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge thereafter.
However PNB observes this directive only in form. The objections raised by the charged officer at this stage are not considered, even if these are factually based and are irrefutable.
Obligation to Issue Speaking Order:
While awarding the punishment the disciplinary authority has to issue a speaking order, by specifying the reasons for his conclusions. Obviously, when the disciplinary authority agrees totally with the findings of the inquiry officer and incorporates the reasons for the conclusion given by the inquiry officer, he need not have to specify separate or independent reasons.
Provision of Opportunities to the Charged Officer to Nominate his Defence Assisting Officer:
After issuing appointment orders of the inquiry and presenting officers, the disciplinary authority has to inform the charged officer to nominate his defence-assisting Officer and convey his name, designation and place of working to the inquiry officer.
After once issuing his orders and communicating the same, the powers of the disciplinary authority for the particular inquiry automatically terminates and he cannot thereafter revise or retake his earlier orders.
The Obligations cast on the inquiry officer vis-a-vis the charged officer
Obligation to Abide by DA regulation:
He is obliged to conduct the Inquiry strictly in terms of the DA Regulations.
Obligation under norms of quasi-judicial nature of Inquiries:
The Person charged with the duty of holding the inquiry must discharge that duty without malice, bias and without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of Inquiry, but also in assessing the evidence or material on record while drawing up the final order. A further requirement is that the conclusion must solely rest on the material produced in the inquiry by way of evidence. It is open to the inquiry officer during inquiry to put additional questions to the witnesses of either the presenting officer or the charged officer, when he feels some important facts in issue are not clear and need additional information. But the inquiry officer in no circumstances can take into account matters outside the records of inquiry.
Preliminary Inquiry:
Before conducting the regular inquiry, he must conduct a preliminary inquiry, when complete material in support of the charge sheet relied by the management is to be disclosed to the charged officer.
The charged officer is to be supplied the recorded statements of management witnesses.:
When such statements are not recorded earlier, either the PO may disclose the gist of testimony relevant to each such witness, or the charged officer is given sufficient time, after the conclusion of the examination-in-chief of each management witness to commence his cross-examination.
Intimation to the Defence Assisting Officer:
The Inquiry officer must send summons for the preliminary and final hearing to the defence-assisting officer and must also endorse copy to his controlling officer, to relieve him in time. If for any reason the said officer could not be relieved by his controlling authority, the inquiry officer must provide opportunities for the charged officer to be represented by another DAO of his choice
Approval of Defence Documents & Defence Witnesses by Inquiry Officer:
In case the inquiry officer deems any documents or witness listed by the Charged officer as irrelevant, he must issue a speaking order giving reasons for his refusal.
Maintenance of Daily Order Sheet:
The inquiry officer should cause daily proceedings to be truly recorded in Daily Order Sheets and this should be signed by the inquiry Officer, the Presenting officer and Charged Officer (also DAO, if present) and copies of the order sheet should be given to each participant.
Summons to Defence Witness:
Inquiry officer must also issue summons under his signature to all defence witnesses, and in case of employees, with a copy to their controlling authorities to relieve them for the inquiry on the date(s) specified.
Testimony of each witness (Management or Defence) should be made in the presence of the charged officer and the testimony should be recorded and signed by the witness, the inquiry officer, the PO and the CO. A copy of the recorded testimony to be given to each participant
Cross-examination of Management Witness:
Charged officer or the DAO as per choice should be allowed to cross-examine each witness examined by the Presenting Officer on behalf of the Management.
Opening of the Defence Testimony:
Defence should not be asked to commence its testimony, before the case of the Management is closed.
Defence Brief:
Charged officer should not be asked to submit his brief, before the PO submits his brief and a copy thereof is given to the charged officer.
Report of the Inquiry Officer:
It should be objective and seen to be objective. Discussed material only out of the records of inquiry and gives reasons for conclusion.
The Obligations cast on the Presenting Officer vis-a-vis the Charged Officer.
The obligations of the PO are implied. He should conform and adherence to bonafide process of conducting the inquiry. PO should deem his duty to prove the truth and should not adopt perverse means to prove, what cannot be proved. He must maintain the standard of inquiry decorum in cross examination of defence witnesses. He should not involve in character assassination of the charged officer. Above all he should restrict his domain to exactly the allegations as made out in the charge sheet, and should not trespass into other matters, unless he follows the procedures set out in Regulation No.6(14) to introduce additional evidence extending the allegations made in the charge sheet. He should file all his evidence at the outset and disclose them at the time of the preliminary inquiry.
Privileges and Principles of Natural Justice that Should be
Extended to Charged Officer
Principal of Natural Justice that should be extended to the charged officer are propounded in judical decisions. These are detailed in the chapter on Departmental Inquiry (Page: 3) and reproduced here.
A judicial authority is required to be impartial and should not have any interest and secondly such authority is also required not to give any decision without hearing the other side.
The broad guidelines for applying the principles of natural justice in departmental inquiries as laid in various judicial pronouncements can be summarised as under:
The Inquiry should be conducted honestly and impartially. Decisions should be in good faith. Justice should not only be done but also seen to have been done.
The inquiry officer conducting the Inquiry should have no bias against the officer proceeded against nor should have any interest in the subject of the Inquiry. A person is said to be biased when his "mind does not hold the opinion, but the opinion holds his mind "
The charged officer should be informed about the accusations against him in as clear and specific terms as practicable.
Witnesses in support of the charges in the Inquiry should be examined in the presence of the delinquent officer and he must be allowed to cross-examine him.
All documents sought to be relied upon to prove the charges against the delinquent officer should be placed at the outset, and an opportunity given to the charged officer to impeach the value or the validity of such documents.
The Inquiry conducted should provide adequate opportunity to the charged officer to produce, oral and documentary evidence on which he relies in order to substantiate his defence and to examine witnesses to disprove the charges. This is also called the doctrine of reasonable opportunity.
No extraneous material either oral or documentary, which is not produced during the inquiry, is allowed to form part of the records of the inquiry, and should not be relied upon to prove the charges. The inquiry officer should not be influenced by any extraneous consideration in arriving at the decision regarding the alleged misconduct of the charged officer.
The charged officer after understanding the rights and obligations of the parties participating in the inquiry must attend the preliminary inquiry. He will be shown the entire material on which the management case rests. These are to be studied by him carefully. Collect copies of the management documents (exhibits) and also the recorded statement of the management witness, In extreme case, if it is not available, at least the PO may informally explain what each witness is expected to testify. This is a gentlemen's understanding. This to a large extent serves our purpose and avoiding technicality in the issue.
Next the charged officer is to file the list of defence documents and witness. Separate guidelines are given in another web page titled How to prepare the List of Defence Documents & Witnesses. Please peruse the same and act accordingly. The interim period between the conclusion of the Preliminary Inquiry and the commencement of the regular inquiry is provided exclusively for the benefit of the charged officer to enable him to prepare his case. These are discussed in the next chapter.
