When the Charged Officer to Commence Work on this Task?

The list of defence documents and witnesses is to submitted to the Inquiry Officer after completion of the preliminary inquiry. However it needs careful prior preparation from the beginning to be able to furnish the Inquiry officer an effective list of documents & witnesses, which will truly speak and corroborate the defence case. The list therefore cannot be prepared and submitted at random, at the last hour. It is not the number of documents produced, but it is really the contents of the documents with positive relevancy to the defence case that will count. A documents is deemed as a complete and unified record and it should be studied and accepted as a whole. The charged officer cannot rely on a single paragraph of a letter and take the plea that the remaining parts of the document do not form his evidence.

Similarly witnesses produced must be competent to testify categorically on material aspects of the disciplinary case. They should testify evidence in support of and favourable to the defence case and must be able to withstand the onslaught of cross-examination by the presenting officer.

From whence should the charged officer start preparing the list of documents and witnesses? The documents are to be sourced and identified first. This process starts at the beginning in what is described as the "Pre-emptive Stage" and briefly described in the succeeding paragraphs.

Comprehensive guidelines are furnished to the charged officer on the subject of preventing threats and problems in service and eliminating prospects of facing charge-sheets, under title "6-Step, 20-Point Service Code and Ethics". Guideline-6 under Step-2 thereof reads as under:-

6. He must follow structured systems and procedures and should not exceed the boundary of authority delegated to him. Whenever you take a decision for the organization keep a record of the justifying background, i.e. the circumstances that prompted you to take the decision. This is the meaning of structured approach. A brief memorandum or note explains the reasons that prompted you to take a particular decision at a particular point of time. Also collect all relevant data and information from the customer/clients with whom you deal and in whose favour the decisions have been taken by you. For example if you allow a concession to a customer, it should be based on a request-application from the customer, and should not be allowed by you of your own initiative, or even on the verbal demand by the customer. The customer should seek the relief providing full justification therefor. The relief should not be allowed even then straight away. The request should be "processed". It should be verified that the customer deserves the relief and that granting the relief is within your powers. A note/memorandum from your side should be placed as aforesaid. This explains why you took the decision and also how the decision taken by you is seen justified.

If these guidelines are adhered to, documents on record reflect events and background circumstances, and roles of different persons involved in totality. There will be sufficient material evidence to support your defence. Where these guidelines were not followed initially, as a next alternative, the CO was advised to initiate a course of correction-steps in the "Pre-emptive Stage". For example if a customer had not tendered his financial statements, or has not signed the loan application, these can be got rectified now. Many small customers under category "sole-proprietorship concerns" may not be able to provide you balance sheets. It is not impossible to sit with the customer for 2-hours to guide him and compile a provisional balance sheet, verifying his assets & liabilities physically and from other direct and reliable sources. Similarly a provisional profit and loss statement can also be prepared. Scan the entries in the passbook of the customer and collect information on the recurring charges every month. Generally the sales figures are readily available, as this is a critical data. This process has the double advantage of educating the customer, as also removing the irregularity. Every month, you are required to conduct a number of routine test-checks and inspections. It is not enough that these are conducted by you, you must also certify in the Branch records that you have conducted these checks and inspections. Immediately conduct all these checks and inspections for the current period, if not already done, and after satisfying that all things are in order record the certificates for the current, as also for the earlier occasions.

Catalogue evidences by way of documents even before the commencement of the Investigation and rectify the deficiencies or gaps through bonafide course of action. This will help to dilute negative observations from being expressed by the Investigating officer in his report.

It will not be advisable to summon customers dealing with the Bank as witnesses in our internal departmental inquiries. Wherever you need testimony of a specific customer, address a letter to them in the normal course, incorporating your queries and get the clarifications by way of reply and these correspondence (both query and reply) should form part of the records of the branch.

The process of locating or discovering documents in your favour will again be repeated after the investigation and submission of report by the Investigating officer. Even if the investigating officer has been asked to submit the report to higher authorities directly, you may request the Investigating officer to communicate to you all procedural irregularities & omissions observed by him or to convey the same to you verbally, so that you can initiate action for compliance and for safeguarding of the interests of the Institution.

The moral is if you fail to accomplish total transparency in your functioning as a public servant, your defence in a crisis will turn to be weak. This is the purpose of the statement, "be honest, but more important than that, be always seen as honest". You must have acted bonafide, but if you do not have records to prove your bonafides, where do you stand?

1. Pre-investigation stage:
   (we have identified as pre-emptive stage). The defence documents are to be sourced and identified in this stage, through normal and bonafide means

2. Investigation and post-investigation stage :
   A review of records for testifying the defence case to be made again and supplementary efforts made to rectify gap

3. Receipt of charge sheet and stage prior to Preliminary Inquiry:
   If opportunity is allowed examine/inspect the records once officially and ensure that your case is completely evidenced.

4. Preliminary Inquiry:
   The steps to be initiated in this stage, when the list is finally prepared and submitted is explained later in this chapter.

At this stage it is also relevant to recap the relevant provisions of the DA Regulation bearing on this subject.

The relevant DA regulation of PNB are quoted as under:

Regulation 6(10)(b)(ii):
The inquiring authority shall also record an order that the officer employee may for the purpose of preparing his defence-submit a list of documents and witnesses, that he wants for the inquiry;

Regulation 6(10)(b)(iv):
Give a notice within 10 days of the order or within such further time not exceeding 10 days as the inquiring authority may allow for the discovery or production of the documents referred to item (ii).

NOTE:The relevancy of the documents and the examination of the witnesses referred to in item (ii) shall be given by the officer employee concerned.

Regulation No.6(11):
The inquiring authority shall, on receipt of the notice for the discovery or production of the documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept with a requisition for the production of the documents, on such date as may be specified.

Regulation No.6(12):
On the receipt of the requisition the authority under sub-regulation (11), the authority having custody or possession of the requisitioned documents, shall arrange to produce the same before the inquiring authority on the date, place and time specified in the requisition;

Provided that the authority having the custody or possession of the requisitioned documents may claim privilege, if the production of such documents will be against the public interest or the interest of the bank. In that event, it shall inform the inquiring authority accordingly.

Preparing the list can start at a much earlier stage, even before issue of charge sheet or investigation, if you are competent to assume shape of the charge sheet, in anticipation, as also the relative management lists of evidence (oral and documentary). This needs specialisation, and your DAO will help you in this. If you are expert in understanding human psychology and can detect how the other man thinks, you can then state how he will act. On the basis of the projected charge sheet and lists of evidence, you can start provisionally building your case.

Finalising the list is to be done, just before preliminary inquiry and it will be advisable to make last minute changes, if needed, after examining the documents of the Presenting officer and hand over the list to the Inquiry officer with the copy to the Presenting officer.

In another web page guidelines for preparation of the defence statement and defence brief are given. The list of evidence to be submitted by you should serve to confirm/prove all the material submissions made by you in the defence statement with reference to the facts-in-issue.

While preparing the list, the following important considerations to be kept in mind.

1. Submit the list custodian-wise, i.e. the source-point where the documents are held.

2. You cannot cross half a river. Similarly the documents to be produced by you, should not in part contain anything affecting your interest. It will amount filing defence documents to facilitate the work of the Presenting officer.

3. Avoid asking for secondary evidences, i.e. records from files at the administrative offices, inspection department etc. Most likely these documents will not be provided. Such records normally reflect the management view, even if some references favourable to you can be traced. But if some correspondence is not traceable at the branch, its relative copy held at the administrative office may be asked.

4. Briefly, but clearly mention the relevancy of each documents, by also mentioning the particular article/imputation, to which, it is relevant, and what you expect prove through such document.

5. Do not request for very large number of documents. This will not add to your advantage to produce a maze of evidence. It is not the quantity or number of evidence, but the quality or effectiveness of the evidence that will count. Try to restrict your documents at 10% plus of minus to the number of documents listed by the PO as Management evidence.

6. Scan the documents produced by the PO, and examine if any of these records also cover evidence in support of the defence. Quite likely some points in favour of the defence can be traced from the PO's documents. Examine the feasibility of listing such documents also as defence evidence, provide they do not contain in part information not in favour of the defence. But even without filing this as a defence document, you can also quote the evidence referencing to the exhibit No. of the record as a management document.

7. Similarly examine the list of witnesses of the presenting officer and identify what material favourable to the defence that can be extracted from each of these witnesses. You can address independent questions to the management witnesses, later at the time of cross-examination, on points not raised by the PO, but deemed relevant by you to the defence.

8. If a complaint was received and on the basis an investigation was carried out and the charge sheet issued thereafter, ask for a copy of the complaint. But you will not have to file this as defence document

9. If investigation was conducted by the CBI, request for verification of all files and records seized by the CBI. Those records which the investigating agency do not want to file may have some material favourable to the defence

10. In case of investigation by CBI, they are to register an RC and file a FIR (as per Sec.155 Cr.P.C) at the Court. Ask for a copy of the FIR.

11. When the PO files the management documents by way of letters taken out from correspondence-files, insist on examining the entire files. There may be some other letters in the same file to neutralise or dilute the evidence filed by the PO

12. Scan all guidelines/instructions/Manuals issued by Head office and locate relevant extracts or portions that will help to justify your action and list them as defence documents.

Add a rider or provision to the list that if any fresh material from the management crops up in the examination of witness or otherwise, you may need to examine if additional documents are needed for the defence, to counteract the same. You will seek permission accordingly, if need arises, at the appropriate time.