Final hearing (Paragraph 20)

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 hear 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.

1. Sometimes allegations are made that a request or representation was made but the Inquiring Authority did not consider the same. In order to avoid such complaints the Inquiring Authority should record a note in the Daily Order Sheet on the very day stating the gist of the request of representation made and the orders passeed thereon. Such notes should form part of the record of the inquiry.

2. If the Government servant alleges bias against the inquiring authority, the inquiring authority should keep the proceedings in abeyance and refer the matter to the disciplinary authority. He should resume the inquiry only after he is advised by the disciplinary authority to go ahead with the inquiry. In case the Government servant moves the application to the appellate authority against the appointment of a particular inquiring authority, the proceedingsshould be stopped and the application, along with other relevant material, be referred to the appropriate appellate authority for consideration and appropriate orders.

The Inquiry Authority should maintain Daily Order Sheet for each case in which the business transacted on each day of hearing should be recorded in brief. Requests and representations made by either party should also be dealt with and disposed of in the sheet. Copies of the recorded order-sheets will be given to the P.O. and the Government servant with their signatures thereon, if they are present. If they are not present, these will be sent by post.

1. The provision of the Indian Evidence Act and the Criminal Procedure Code are not applicable to the departmental enquiries. The spirit of these enactments should, however, be followed in departmental enquiries. The Inquiry Officer should afford reasonable opportunity to both sides to present their respective cases including full opportunity for cross-examining witnesses.

2. In Gabrial vs. State of Madras, the Madras High Court set out the requirements of an enquiry in the following terms:-

   All enquiries, judicial, departmental or other, into the conduct of individuals must conform to certain standards. One is that the person proceeded against must be given a fair and reasonable opportunity to defend himself. Another is that the person charged with the duty of holding the enquiry must discharge that duty without bias and certainly without vindictiveness. He must conduct himself objectively and dispassionately not merely during the procedural stages of enquiry, but also in dealing with the evidence and the material on record when drawing up the final order. A further requirement is that the conclusion must be rested on the evidence and not on matters outside the record. And, when it is said that the conclusion must be vested on the evidence, it goes without saying that it must be based on a misreading of the evidence. These requirements are basic and cannot be whittled down, whatever be the nature of the inquiry, whether it be judicial, departmental or other

3. In the State of Uttar Pradesh vs. Mahmood, it was held that if an Inquiry Officer puts on record his own testimony as against that of any other witness, such an Inquiry Officer becomes disqualified to hold the further proceedings. The Inquiry Officer cannot rely on his own evidence. An Inquiry Officer cannot both be a judge and a witness. That will be contrary to the principles of natural justice.

4. Disproportionate assets case - In disciplinary proceedings a presumption of corruption fairly and reasonably arises against an officer who cannot account for his wealth disproportionate to his known sources of income and accordingly, the Inquiry Officer can hold that such assets were amassed by the Government servant in a corrupt way.

5. Affidavits in departmental enquiries - Evidence in the form of affidavits, cannot be ruled out in departmental proceedings. At the same time, it cannot be taken as conclusive. The person swearing to the affidavit may be called for cross-examination and the value to the attached to an affidavit should be decided in each case on merits on the basis of the totality of evidence including the results of the cross-examination etc.

6. Amendment to the charge-sheet - During the course of enquiry, if it appears necessary to amend the charge-sheet, it is permissible to do so provided that a fresh opportunity be given to the accused public servant in respect of amended charge-sheet. The Inquiry Officer may hold the enquiry again from the stage considered necessary so that the accused public servant should have a reasonable opportunity to submit his defence or produce his witnesses in respect of amended charge-sheet. If, however, there is a major change in the charge-sheet, it would be desirable to draw fresh proceedings on the basis of the amended charge-sheet.

7. The emphasis in Departmental Enquiries is heavily on facts. Whatever the Inquiry Officer does should be lawful , but it should not be legalistic. The legal principles with which Inquiring Authorities are primarily concerned are only the principles of natural justice.

8. The laws or procedures are also relaxed in so far as Departmental Inquiries are concerned. The provisions of the Indian Evidence Act and Criminal Procedure Code except in so far as they relate to the general principles of natural justice are not applicable to the Departmental Enquiries (State of Orissa vs. Murlidhar Jana AIR 1963 S.C. 404)

9. The standard of proof required in a departmental oral inquiry differs materially from the standard of proof required in a criminal trial. The Supreme Court has given clear rulings to the effect that a disciplinary proceedings is not a criminal trial and that the standard of proof required in a disciplinary enquiry is that of preponderance of probability and not proof beyond a reasonable doubt (Union of India vs. Sardar Bahadur - SLR 1972-p. 355 State of A.P. vs. Sree Rama Rao-SLR 194-p. 25 and Nand Kishore Prasad Vs. State of Bihar and others - SLR- 1978-p.46)

1. If the Government servant to whom a copy of the articles of charge has been delivered, does not submit the written statement of defence on or before the date specified for the purpose or does not appear in person before the Inquiry Officer or otherwise fails or refuses to comply with the provisions of the C.C.A. Rules, the Inquiry Officer may hold the inquiry ex parte. If the Government servant does not take advantage of the opportunity given to him to explain any facts or circumstances which appear against him he has only to blame himself and the Inquiry Officer has no choice but to proceed ex parte. But if a Government servant under suspension pleads his inability to attend the inquiry on account of financial stringency caused by the non-payment of subsistence allowance to him, the proceedings conducted against him ex-parte would be violative of the provisions of Article 311 (2) of the Constitution as the person concerned did not receive a reasonable opportunity of defending himself in the disciplinary proceedings. (Supreme Courtís observation in the case of Ghan Shyam Das Srivastava vs. State of Madhya Pradesh - AIR 1973 SC 1183). Therefore, in cases where recourse to ex-parte proceeding becomes necessary, it should be checked up and confirmed that the Government servant's inability to attend the inquiry is not because of non-payment of subsistenceallowance.

2. In an ex-parte proceeding the full enquiry has to be held i.e., the Presenting Officer will produce documentary evidence and witnesses in the manner outlined in paragraphs 8 to 15 above. Notice of each hearing should be sent to the Government servant also.

3. However, if it is not possible to trace the Government servant and serve the charges on him, the disciplinary authority may take recourse to Rule 19 (ii) and finalise the proceeding after dispensing with the inquiry on the ground that it is not reasonably practicable to hold one.

1. If an Inquiry Officer after having heard and recorded the whole or any part of the evidence in an enquiry ceases to function as Inquiry Officer for any reason, and a new officer is appointed as Inquiry officer for conducting the inquiry, the new Inquiry Officer in his discretion may proceed with the enquiry de novo, or from the stage left by the predecessor and act on the evidence already recorded by his predecessor or the evidence partly recorded by his predecessor and partly recorded by him, depending upon the stage at which the previous Inquiry Officer ceased to function.

2. However, if the new Inquiry Officer is of the opinion that a further or a fresh examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may recall the witness or witnesses for examination, cross-examination and re-examination in the manner described in paragraphs 9-12.

3. A standard form for the appointment of new Inquiring Authority is given in Appendix E(34).

1. An oral inquiry is held to ascertain the truth or otherwise of the allegations and is intended to serve the basis on which the disciplinary authority has to take a decision as to whether or not the imposition of any penalty on the Government servant is called for.

2. The findings of the Inquiry Officer must be based on evidence adduced during the enquiry. While the assessment of documentary evidence should not present much difficulty, to evaluate oral testimony, the evidence has to be taken and weighed together, including not only what was said and who said it, but also when and in what circumstances it was said, and also whether what was said and done by all concerned was consistent with the normal probabilities of human behaviour. The Inquiry Officer who actually records the oral testimony is in the best position to observe the demenour of a witness and to form a judgement as to his credibility. Taking into consideration all the circumstances and facts the Inquiry Officer as a rational and prudent man has to draw inferences and to record his reasoned conclusion as to whether the charges are proved or not.

3. The Inquiring Authority should take particular care while giving its findings on the charges to see that no part of the evidence which the accused Government servant was not given an opportunity to refute, examine or rebut has been relied on against him. No material from personal knowledge of the Inquiring Authority having a bearing on the facts of the case which has not appeared either in the articles of charge or the statement of allegations or in the evidence adduced at the inquiry and against which the accused Government servant has had no opportunity to defend himself should be imported into the case.

4. The report of the Inquiry Officer should contain:-

   1. an introductory paragraph in which reference will be made about the appointment of the Inquiry Officer and the dates on which and theplaces where the inquiry was held;

   2. charges that were framed;

   3. charges which were admitted or dropped or not pressed, if any;

   4. charges that were actually enquired into;

   5. brief statement of facts and documents which have been admitted;

   6. brief statement of the case of the disciplinary authority in respect of the charges enquired into;

   7. brief statement of the defence;

   8. points for determination;

   9. assessment of the evidence in respect of each point set out for determination and finding thereon;

   10. finding on each article of charge;

   11. a folder containing :-

       1. list of exhibits produced in proof of the articles of charge;

       2. list of exhibits produced by the delinquent officer in his defence;

       3. list of witnesses examined in proof of the charges;

       4. list of defence witnesses;

   12. a folder containing depositions of witnesses arranged in the order in which they were examined;

   13. a folder containing daily order sheet;

   14. a folder containing written statement of defence, if any, written briefs filed by both sides, application, if any, made in the course of the inquiry with orders thereon and orders passed on any request or representation made orally.

5. If in the opinion of the Inquiry Officer the proceedings of the inquiry establish an article of charge different from original articles of charge, he may record his findings on such article of charge. The findings on such article of charge will not, however, be recorded unless the Government servant has either admitted the facts on which such article of charge is based or has had a reasonable opportunity during the course of the enquiry of defending himself against such article of charge

6. The Inquiry Officer will forward to the disciplinary authority his report together with the record of the enquiry including the exhibits and spare copies of the report as follows:-

   1. as many copies as the number of the accused;

   2. one copy for the Special Police Establishment in cases investigated by them.

7. The Inquiry Officer after signing the report becomes functus officio and cannot thereafter make any modification in the report.

8. In all cases in which the inquiry has been held by a Commissioner for Departmental Inquiries, the report, together with the record of the inquiry including the exhibits, will be forwarded by the Commissioner for Departmental Inquiries to the Central Vigilance Commission with spare copies of the report as follows:-

   1. as many copies as the number of the accused plus one copy of the disciplinary authority;

   2. one copy for the SPE in cases investigated by them.

The Central Vigilance Commission will forward the required number of copies of the report and the accompanying papers to the disciplinary authority, together with its advice, regarding the further course of action.

9. In cases relating to gazetted and other category of officers (Please see para 3.1.1 Chapter II) where an officer other than a Commissioner for Departmental Inquiries has been appointed as Inquiry Officer (vide para 23.3 of Chapter X), the report of the Inquiry Officer together with the accompanying documents and other papers will be sent to the Central Vigilance Commission. The Commission will advise the disciplinary authority about the further course of action.

The question of stay or adjournment of oral inquiries in disciplinary proceedings conducted by the Inquiring Authorities, when the delinquent officer goes to a court of law has been considered in consultation with the Ministry of Law. The proceedings need not be adjourned or stayed in the following circumstances :-

1. On receipt of notice under Section 80 of Civil Procedure Code;

2. On receipt of intimation that the impugned officer proposes to file a writ petition;

3. On receipt of a mere show cause notice (or Role NISI) from a court asking :-

   1. why the petition should not be admitted; or

   2. why the proceedings pending before Disciplinary Authority/Inquiring Authority should not be stayed; or

   3. why a writ or an order should not be issued?

The proceedings should, however, be stayed only when a court of competent jurisdiction issues an injunction or clear order staying the same.