Action on Investigation Report (Paragraph 10 contd)

4. On completion of the preliminary investigation of the case, the Disciplinary Authority shall be required to forward:-

   1. The preliminary investigation report on the basis of which the allegations are proposed to be established or dropped

   2. The documents and records connected with the case.

   3. A self-contained note clearly indicating the facts on which the Commission's advice is sought.

   4. The disciplinary authority's own tentative recommendations.

   5. In cases investigated by the Central Bureau of Investigation under the Special Police Establishment Act, 1946, the comments of the disciplinary authority on the recommendations of the aforesaid Bureau.

   6. A neatly typed tabular statement clearly indicating the allegations against the officer proposed to be included in the charge sheet, his defence in respect thereof, and the disciplinary authority's and CVO's comments.

   7. The bio-data of the officials concerned. Since CVOs in banks are also experts in their field, they should invariably provide their own analysis and assessment of the facts of the case so that the Commission can have the benefit of their expertise.

Categorisation of Cases

5. Before making references to the Commission, the CVO may classify references into Vigilance A and B. Vigilance-A would comprise cases where the lapses committed/irregularities noticed are serious and a prima-facie case for initiation of RDA for major penalty proceedings has been made out; Vigilance-B, on the other hand, would comprise less serious cases of procedural lapses, which in the opinion of the CVO, do not reflect adversely on the integrity of the official concerned. Vigilance-B cases ordinarily will not invite any administrative disabilities normally associated with the registration of a vigilance case against an official. These cases will continue to be monitored through the Vigilance Complaints Register till their disposal but only because they technically fall within the ambit of the term `vigilance' and not because the official is accountable for any serious misdemeanor/misconduct or equivalent negligence. It follows then that an official can be proceeded against for a minor penalty but may not suffer any disability by way of posting, training, placement on `Agreed' list etc., during the pendency of the disciplinary proceedings. If he is found accountable in the disciplinary proceedings, he will be duly punished but for all other purposes (except promotion, for which a separate sealed cover procedure exists) he will be treated at par with other equally/comparably placed employees facing minor penalty proceedings in a non-vigilance case.

If the disciplinary authority, in a case, does not propose to accept the Commission's advice, the case may be referred back to the Commission, with prior approval of the Managing Director/ the Chief Executive, for its reconsideration. The reconsideration of the Commission's advice is necessary regardless of whether the disciplinary authority proposes to take "severer" or "lighter" action than that recommended by the Commission. Decisions taken in a manner, other than that mentioned above, would be treated as cases of non-acceptance of the Commission's advice and reported in the Commission's annual report. As a rule, the Commission entertains only one request for reconsideration.

1. Charge Sheet (Para 12.1)

   1. Once the disciplinary authority decides to initiate major penalty proceedings against an employee, on the basis of the Commission's advice or otherwise, it should take immediate steps to issue the charge-sheet. A properly drafted charge sheet is the sheet anchor of a disciplinary case. Therefore, the charge sheet should be drafted with utmost accuracy and precision based on the facts gathered during the investigation (or otherwise) and the misconduct involved. It should be ensured that no relevant material is left out and at the same time, no irrelevant material or witnesses are included.

   2. The charge sheet comprises the memorandum, informing the concerned employee about initiation of proceedings against him and giving him an opportunity to admit or deny the charge(s) within a period not exceeding 15 days. The memorandum is to be signed by the disciplinary authority himself. In case, the disciplinary authority is the President, an officer, who is authorised to authenticate the orders on behalf of the President, may sign the memorandum. The Memorandum should be supported by annexures, namely, Article(s) of charge, statement of imputations of misconduct or misbehaviour in support of each article of charge, and lists of documents and witnesses. Lists of documents and witnesses should form an integral part of the chargesheet even if the disciplinary rules applicable to the concerned employee do not contain such a provision.

   3. Special care has to be taken while drafting a charge sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the IO would be required to give his specific findings only on the Articles as they appear in the charge sheet. The Courts have struck down charge sheets on account of the charges framed being general or vague ( S.K. Raheman Vs State of Orissa 60 CLT 419 .) If the charge is that the employee acted out of an ulterior motive that motive must be specified (Uttar Pradesh Vs Salig Ram AIR 1960 All 543). Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance (Meena Jahan Vs Deputy Director, Tourism 1974 2 SLR 466 Cal). However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet (Dinabandhu Rath Vs State of Orissa AIR 1960 Orissa 26 cf. also Powari Tea Estate Vs Barkataki (M.K.) 1965: Lab LJ 102).

   4. All relevant details supporting the charges should be separately indicated in the statement of imputations.

   5. The concerned employee is not expected to furnish a detailed reply to the charge sheet. He is required only to state his defence and admit or deny the charge(s). Therefore, the rules do not provide for making available the relevant documents to the concerned employee for submission of his defence statement. However, notwithstanding the legal position, copies of the documents and the statements of witnesses relied upon as far as possible, may be supplied to him along with the charge-sheet. If the documents are bulky and copies cannot be given, he may be given an opportunity to inspect those documents and submit his reply in about 15 days' time.

2. Defence Statement (Paragraph 12.2)

   1. Admission of Charge

      If the charged employee admits all the charges unconditionally and unambiguously, the disciplinary authority shall record its finding on each charge. Where the advice of the Commission is required, the case may be referred to the Commission, along with the comments of the disciplinary authority, for second stage advice. In other cases, the disciplinary authority should proceed to pass a self-contained and reasoned speaking order of punishment, defining the scope of punishment to be imposed in clear terms, in accordance with the relevant rules.

   2. Accepting Defence Statement or Modifying Charges

      The disciplinary authority has the inherent power to review and modify the articles of the charge, or drop some or all of the charges, after the receipt and examination of the written statement of defence. It is not bound to appoint an inquiring authority to inquire into such charges as are not admitted by the charged employee but about which the disciplinary authority is satisfied that these do not require to be proceeded with further. However, before the disciplinary authority exercises the aforesaid power, it may consult the CBI in cases arising out of the investigations conducted by them. The Commission should also be consulted where the disciplinary proceedings were initiated on its advice.

   3. Charges not Admitted/Defence Statement not Submitted

      If the disciplinary authority finds that any or all the charges have not been admitted by the charged employee, or if he has not submitted the written statement of defence by the specified date, it may cause an inquiry to be made to inquire into the charges framed against the charged employee. The procedure for conducting the inquiry is indicated in the succeeding paragraphs.

3. Procedure for Departmental Inquiry (Paragraph 12.3)

   The procedure for conducting a departmental inquiry has been given in detail in Chapter XI of the Vigilance Manual Vol.I. The important provisions, however, are summarised below.

   1. Appointment of Inquiring Authority/Officer

      1. Under the disciplinary rules, the disciplinary authority may itself inquire, or appoint an inquiring authority/officer (IO) to inquire into such charges against the charged employee/officer (CO) if the latter does not admit the same or has otherwise not submitted his defence statement within the specified time. It should, however, be ensured that the officer so appointed has no bias and had no occasion to express an opinion at any stage of the preliminary inquiry. The inquiring authority should also be directed to ensure submission of the report mandatorily within a period of six months of his appointment. This time limit should be invariably adhered to at all cost.

      2. The organisations in which large number of departmental inquiries are pending, may earmark some officers on a full-time basis to complete the inquiries within the specified time limit. The disciplinary authority may also consider appointing retired public servants as the inquiring authorities, on payment of honorarium on a case to case basis. All such appointments should be made from a panel duly approved by the Board of Directors in accordance with the extant rules. All organisations, however, should ensure that the inquiries are completed within the stipulated time limitation and no inquiry should suffer on account of non-availability of an I.O.

      3. Generally, the Commission nominates one of the Commissioners for Departmental Inquiries (CDI), borne on its strength, for appointment as inquiring authority to inquire into the charges against such employees against whom it advises initiation of major penalty proceedings. However, because of its limited manpower resources, the Commission cannot nominate a CDI in each and every case in which it tenders advice. It therefore permits the appointment of a departmental inquiring authority in certain cases. Because of similarity in rules, procedures and norms, banks will in future have a common pool of inquiry officers, details of which will be maintained in the Commission. The rationale behind the proposed provision is to ensure removal of bias and expedition in the conduct of the inquiry proceedings. Henceforth, the Commission would also nominate the name of the inquiring authority while tendering its first stage advice. The disciplinary authority should give the charged officer a period of 15 days time after the service of the charge-sheet to deny or accept the charges. In case no reply is received within this period, the disciplinary authority may proceed to the next stage of the inquiry.

   2. Appointment of Presenting Officer

      The disciplinary authority would also appoint an officer, called as Presenting Officer (PO), to present the case on its behalf before the inquiring authority. Unlike in the past, it would not now be necessary to nominate a CBI officer to act as PO in the cases investigated by them.

   3. Defence Assistant

      The charged employee has also a right to take assistance of a public servant, generally termed as defence assistant (DA), to help him in the presentation of his case in a departmental inquiry. Most rules provide that the CO may not engage a legal practitioner to present the case on its behalf before the IO, unless the PO appointed by the disciplinary authority is also a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. It is, however, clarified that if the case is being presented, on behalf of the disciplinary authority, by a "Prosecuting Officer" of the CBI or by the Law Officer of the Department, such as a Legal Adviser etc., there would evidently be good and sufficient circumstances for the disciplinary authority to exercise his discretion in favour of the delinquent employee and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court as arbitrary and prejudicial to the defence of the delinquent employee. In order to ensure expeditious disposal of inquiry proceedings, a person will not be permitted to act as defence assistant in more than three cases at any given point of time. The IO shall satisfy himself that the aforesaid condition is satisfied.

   4. Preliminary Inquiry

      1. (On the date fixed for the purpose, the inquiring authority (IO) shall ask the CO whether he is guilty or has any defence to make. If the CO pleads guilty to any of the articles of charge, the IO will record the plea, sign the record and obtain the signature of the CO thereon. The IO will then return a finding of guilt in respect of those articles of charge which the delinquent employee admits. In respect of other charges, the IO would ask the PO to prove the articles of charge and adjourn the case to a date within 30 days of the preliminary hearing.

      2. While adjourning the case, the IO would also record the order permitting inspection of listed documents by the CO. The order should direct the latter to submit a list of witnesses to be examined on his behalf and the list of additional documents needed by him for his defence. For reasons to be recorded by him in writing, the IO may refuse to requisition such documents, or allow such witnesses, as are in his opinion, not relevant to the case. On the other hand, where he is satisfied that the documents required by the defence are relevant, he may requisition the same from their custodian, through the PO or otherwise, by a specified date. The denial of access to documents, which have a relevance to the case, may amount to violation of reasonable opportunity. Therefore, the power to deny access on grounds of public interest, should be exercised only for reasonable and sufficient grounds to be recorded in writing.

   5. Regular Hearings

      1. General:
         Once all the preliminaries are over, the IO would fix the dates and venue of regular hearings. He should, as a rule, hear the case from day to day and not grant any adjournments, save in unavoidable and exceptional circumstances. Admitted documents may be taken on record straight way and admitted facts, if any, be taken note of in the order-sheet.

      2. Presentation of Prosecution case
         In the first instance, the PO would be asked to present his case. He should introduce unadmitted/disputed documents through relevant witnesses. He should in the examination-in-chief, examine his witnesses in such a way that brings out the case in a logical manner. The IO should also ensure that the witness understands the question properly. He should protect him against any unfair treatment, disallowing questions which are leading, irrelevant, oppressive or dilatory in nature. As far as possible, all evidence should be recorded in narrative form. Previous statements admitted by the witness should also be taken on record. After the examination of a witness is over, the witness may be cross-examined by the CO or his DA to bring out further facts, remove discrepancies; or throw light on the reliability of the witness. After the cross-examination, the PO may re-examine the witness on any point on which he had been cross-examined but not on any new matter unless specifically allowed by the IO. In the latter case, the CO would have a right to further cross-examine the witness. The IO may also put such questions to a witness as he thinks fit, at any time during the inquiry, to bring out the truth and for the emergence of a fair and clear understanding of the case. With this end in view, he may allow both sides to cross-examine such a witness on any question put by him.

      3. Hostile Witness
         If during the examination-in-chief of a prosecution witness, the PO feels that the witness is hostile or that his testimony is likely to affect the prosecution case or that the witness is knowingly not telling the truth, he may seek the permission of the IO to cross-examine that witness after he has been declared hostile. In such situations, the PO may, with the prior permission of the IO, also put leading questions to the witness so as to bring out the truth.

      4. Admission of Guilt
         The CO may decide to plead guilty to any of the charges during the inquiry. In that case, the lO may accept the plea and record his findings. He should nonetheless, continue the case to its logical conclusion if, in his opinion, the admission is conditional or only relates to part of the charges.

      5. Before the close of the case on behalf of the disciplinary authority, the IO, in his discretion, may allow the PO to produce evidence not included in the list given to the CO, or may himself call for new evidence, or recall and re-examine any witness. In such situations, the CO would be entitled to have a copy of such evidence, an adjournment of at least three clear days, and an opportunity for inspecting the relevant documents. The IO, however, should not allow such evidence for filling up any gap in the evidence on record but only when there has been an inherent lacuna or defect in the evidence originally produced.

      6. Defence Statement
         After closure of the case on behalf of the disciplinary authority, the IO shall ask the CO to state his defence. If the C.O. submits the defence in writing, he should sign every page of it. If he makes an oral statement, the IO should record the sameand get it signed by the CO. A copy of the statement of defence should be given to the PO.

      7. U> Presentation of Defence Case
         The CO, thereafter, would be asked to produce evidence in support of his defence. The CO or his DA would proceed to examine his witnesses, who will be crossexamined by the PO, and re-examined by the CO on the basis of the same procedure as indicated in the case of prosecution witnesses.

      8. CO Appearing as Witness
         The CO may, in his discretion, offer himself as his own witness.

      9. Mandatory Questions to COIf the CO does not offer himself as a witness, the IO shall examine him generally to enable him to explain the circumstances appearing against him. The IO may do so, even if the CO has offered himself as a witness.

      10. Written Briefs by PO/CO
          After the completion of the production of evidence, the IO may hear the PO and the CO, or permit them to file written briefs of their respective case, if they so desire. If they are permitted to submit written briefs, the PO may submit his brief within a week of the last hearing of the case. He should also certify that a copy of the brief has been given to the CO. The CO may thereafter, furnish his brief within such further period of one week.

      11. Daily Order Sheets
          The IO would maintain a daily order sheet to record in brief the business transacted on each day of the hearing. Requests and representations by either party should also be dealt with and disposed of in this sheet. Copies of the recorded ordersheets will be given to the PO and CO with their signatures thereon, if they are resent. If they are not present, these will be sent b post.

      12. Ex-parte Proceedings
          If the CO does not submit his written statement of defence within the specified time, or does not appear before the IO on the dates fixed for the inquiry or refuses to comply with the provisions of the rules, the IO may hold the inquiry ex-parte. In that event the copies of the depositions, daily order sheets etc. may be sent to him at his last known address. A copy of the written briefs submitted by the PO may also be sent to him so as to give him a reasonable opportunity to submit defence briefs. The CO, always has the option to participate in or join the inquiry at any stage.

      13. Alleging Bias against IO
          If the CO alleges bias against the IO, the IO 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.

      14. Change of IO
          Whenever for any reason the IO is changed and a new IO is appointed to continue the inquiry, he shall take into account the evidence recorded or partly recorded by his predecessor. If he is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interest of justice, he may recall, examine, reexamine and cross-examine such witness.