presented by - government of puducherry new 2018/de guidelines study...role of presenting officer...

CBI ACADEMY, GHAZIABAD

Presented by :

R.K. Choubey, Dy.SP(Trg.), &

N.M.P.Sinha, Inspector(R&D)


Terminology

Misconduct

l To be construed in the light of the service/conduct rules or regulations applicable to each establishment

l Improper behaviour

l Intentional wrong doing

l Deliberate violation of rules or standard of behaviour or culpable neglect of duty.


Contd.

Charge Sheet

l A formal document communicating the charges framed against an employee who is alleged to have committed a misconduct.

Charged Official (CO)

l An employee who has been charged with some misconduct and to whom a formal charge sheet has been issued by the Disciplinary Authority.

Disciplinary Proceedings

l Quasi-judicial proceedings which commence with the service of the charge sheet to the C.O.


Contd.

Disciplinary Authority (DA)

l The designated officer competent to impose any of the specified penalties on the C.O.

Presenting Officer (PO)

l Appointed by the Disciplinary Authority to present the case on behalf of the Disciplinary Authority.

Appellate Authority

l An authority superior to the Disciplinary Authority to whom an appeal against the penalty imposed can be made by the C.O.


Contd..

Defence Assistantl Nominated by the C.O. to defend charges

Prosecution Document (PD)l A document listed in an Annexure to the charge

sheet to prove the charges framed against the C.O.

Prosecution Witness (PW)l A witness listed in an Annexure to the Charge

Sheet to sustain the charges framed against the C.O.

Defence Document (DD)l A document cited ad produced on behalf of the CO

for his defence.


Contd..

Defence Witnessl Cited and produced on behalf of the C.O. for

his defence.

Daily Order Sheetl A document made by the Inquiry Officer

recording his daily business of inquiry proceedings in brief.

Examination-in-chiefl A process, where on being produced and

questioned by PO, a witness narrates before the I.O., the facts within his personal knowledge and relevant to the inquiry.


Contd.

Cross Examinationl A process, where on being produced and

questioned by CO/DA, a witness narrates before the I.O., the facts within his personal knowledge and relevant to the inquiry.

Hostile Witnessl A witness who does not support the story of

prosecution and backs out from his earlier statement.

Exparte Enquiryl A stage when due to continued absence of

prosecution or defence representatives, the IO takes a decision to proceed with the enquiry.


Contd.

Preliminary Inquiry/Investigation

l A fact finding inquiry to ascertain the truth or otherwise of the allegations contained in the information or complaint.

Principles of Natural Justice

l Not defined in any Code or Law or Rules but the concept is fairly crystallized through judicial pronouncements and covers three important principles:-

(i) No one shall be a judge in his own cause.

(ii) No one shall be condemned unheard, right of the either party to be heard.

(iii)Justice should not only be done but it should appear that it is being manifestly done.


Kinds of Disciplinary Proceedings

Minor Penalty Proceedingsl In this proceedings, the misconduct of the C.O. is

communicated to him through imputation of misconduct. The disciplinary authority provides a reasonable opportunity to explain the said misconduct to the C.O. and if the explanation is not satisfactory, imposes penalty.

Major Penalty Proceedingsl Formal charge sheet is issued along with list of

documents and list of witnesses to the C.O. The C.O. is required to submit his explanation within the specified time. If the explanation of the C.O. is not satisfactory, E.O. & P.O. are appointed for making enquiry and submitting the findings. On receipt of the Enquiry Report, the Disciplinary Authority decides for imposionof penalty.


Difference between Article of Charge & Statement of Imputation of Misconduct in support of Article of Charge

Article of Chargel This is a concise, brief and specific allegation

against the CO which is misconduct and punishable under the Conduct Rules.

Statement of Imputation of Misconduct in support of Article of Chargel This is detailed sequence of events consisting of

omissions and commissions of CO which formed the basis of Article of Charge.

l In other words, it can be said that if an entry made in the Ledger Book is Article of Charge then the voucher(s) on the basis of which entry has been made is Statement of Imputation of Misconduct.


Check List for POWhether PO is nominated by the Disciplinary Authority.

Whether the name & designation of PO is correctly mentioned in the nomination letter and information of the same is given to Inquiring Authority and CO before fixation of date, time and place of preliminary hearing.

Whether name & designation of the IA is correctly mentioned in the nomination letter and information of the same is given to the PO and CO.

Whether Article of Charge, Statement of Imputation of misconduct, list of documents and list of witnesses have been received by the PO.

Whether the original documents are available with the Disciplinary Authority.

In case the originals are in the court in connection with criminal trial, whether certified copies of the documents are available.


Contd.

Whether three sets of prosecution documents (xerox copies) have been prepared for IA, PO and CO.

Whether the CO has proposed for acceptance of charges in the preliminary hearing.

Whether the witnesses have been briefed before the regular hearing.

Before dropping any prosecution witness, the fact as to whether alleged charges have been proved or not.

Whether the examination in chief is made on the basis of pre- recorded statements.

Whether the questionnaire for examination in chief has been prepared, in case the pre- recorded statements are not available

Whether the questionnaire for hostile witness has been prepared.

Whether the questionnaire for defence witnesses have been prepared.

Whether the PO is ready to use a hostile defence witness to prove the charges against the CO.

Whether the Prosecution Brief is prepared and submitted to the IA in time with a copy to the CO.


Role of Presenting Officer

The Presenting Officer is basically a representative of the Disciplinary Authority

(i) To assist the Disciplinary Authority to reach the truth.

(ii) To assist the Enquiring Authority to make an impartial inquiry.

(iii) To provide necessary assistance & materials to the C.O. to present his case before the E.O. as well as D.A.


Presenting Officer in Minor Penalty Proceedings

Appointment of PO is a necessity in Major Penalty Proceedings.

Normally in Minor Penalty Proceedings, no PO is appointed.

In exceptional cases of Minor Penalty Proceedings, PO is appointed when

l CO requests Disciplinary Authority to appoint PO

In case of minor penalty when on the request of CO, PO is appointed, formalities of Major Penalty proceedings are observed but the penalty imposed will be of Minor Penalty.


Functions of the Presenting Officer

Assist the Inquiry Officer during preliminary hearing to sort out the preliminaries.

Supply copies of documents in support of the charges and allow inspection of the originals to the charged employee when so directed by the Inquiry Officer.

Supply copies (in full) of the earlier statements of witnesses mentioned in the list of prosecution witnesses.

Produce the listed documents before the inquiry officer in the beginning of the regular hearing so that they are brought on record; and to prove the disputed documents by examining the relevant official witness(es).


Contd..Lead, in a logical manner, the oral evidence before the Inquiry Officer in support of the charge.

Where necessary, to make timely request to the Inquiry Officer for production of some new or additional evidence not mentioned in the charge sheet. The right stage for making such a request is after he has examined all the witnesses and before the defence case begins.

Cross examine effectively hostile witnesses or defence witnesses produced by defence.

Submit his written brief, summing up his case, with a copy to the charged official after all evidence have been recorded in the case. Where the rules permit, he may, with permission of the Inquiry Officer, argue the case orally.


Important do’s for P.O.

Study all the original records of the case based on which the charges are framed and acquaint himself with all the facts of the case thoroughly including all the elements of misconduct committed by the C.O.

Be in a position to assist the Inquiry Officer to plan the stages of regular hearing purposefully.

Collect all listed documents and all the statements of witnesses taken during the investigation, if not received already.


Contd..

Correlate each item of oral or documentary evidence to the statement of imputation of misconduct and decide what is likely to prove or fails to prove.

Scrutinise the charge sheet and the DefenceStatement for giving up unnecessary formal witnesses at the time of preliminary hearing.

Anticipate what the C.O. is likely to admit; then, omit the evidence intended to prove admitted facts or which is superfluous.


Contd..

If a document is admitted, it can be produced by a person in possession of it. On the other hand, if the contents of any documents are not admitted, the person who prepared it or maintained it must be offered as a witness so that the C.O. can cross examine him.

Be in a position to collect necessary evidence and witnesses for presentation at the regular hearing with greater precision. Keep all your witnesses present for hearing from day-to-day


Contd..

Before departmental witnesses are examined at the enquiry, it would be desirable to meet them in advance and refresh their memory by referring to their statements recorded at the time of investigation.

Remember the points which are generally raised by the defence, viz. malafides, natural justice and burden of proof. Equip yourself fully how to meet them.

Have a thorough knowledge of departmental policies and procedures.


Contd..

He may re-examine the prosecution witnesses.

Keep an eye on the procedural aspect at different stages of the disciplinary proceedings and aid the inquiring authority in securing proper compliance of such rules.

As the enquiry proceeds, take down notes so that you do not leave out points to be covered during cross-examination/re-examination. This will also help you in preparing the brief at the end.


Contd..

Throughout the conduct of the inquiry you should conduct yourself in such a manner that the C.O. will have no reason to feel that you have any undue influence over the Inquiring Authority.

Lead fresh evidence on behalf of the Disciplinary Authority to further clarify some issues raised in the course of the inquiry.

Submit your brief in time.


IMPORTANT DON’TS FOR P.O.

Try to get adjournments.

Assume the role of a public prosecutor.

Examine your witnesses on issues not relevant to the charges

Expect the CO to disprove the charges so long as the burden of proving the charges is not discharged by you.

Put leading questions to your witnesses during examination-in-chief.

Delay submission of your written brief to the I.O.


Skillful Presentation

Skillful presentation of facts relating to alleged charges against CO is an art which needs

Ø Professional attitude

ØGrip over the facts of the case

ØDiscussion of case with CO charge wise and to convince him that there is not point in contesting the case but to accept the charges. CO may accept the charges/charge to safeguard his own interest.

ØArt of placement of facts through examination-in-chief


Contd.

ØArt of cross examination to rebut the false claims of CO

ØTo concede the genuine and rightful claims of CO keeping in mind the Principles of Natural Justice.

ØKnowledge of technical terms and its interpretations by the Courts.

ØAppreciation of evidence

ØGrounds to rebut the defence of CO without placement of additional evidences

ØPresentation of case with honesty & impartiality without allowing the sentiments to creep in and

soil your hard work.


Dilatory Tactics

Postponement of date of enquiry on flimsy grounds

Appointment of Defence Assistant

Inspection of original documents

Supply of documents(prosecution & defence)

Arrangement of witnesses

Lengthy examination-in-chief or cross examination

Filing of petitions in CAT etc. on technical issues


Conted.

No of Prosecution Witnesses or the DefenceWitnesses

Rigid attitude of IA or PO which denies the rights of CO leading to unnecessary initiation of legal battle in the Courts.

Revocation of stay orders of CAT etc.

Timely submission of Prosecution Brief/DefenceBrief/Report of Inquiring Authority.


CBI Investigation

In accordance to the provisions contained in rule 14(5)(c) of the Central Civil Services (CC&A) Rules, 1965 and under appoint a government servant as a ‘Presenting Officer’ in the Departmental proceedings initiated against a government servant, to represent the case before the Inquiring Authority, in support of the article of charge. As per the decision of this Department as contained in this Department’s O.M. of even number dated 06/12/1993, in the cases investigated by the CBI the Disciplinary Authority may appoint their own officers as Presenting Officers (PO) in disciplinary proceedings relating to Non-GazettedOfficers, depending upon the merits of each case.


Contd.The Central Vigilance Commissioner in its meeting with the Director, CBI held on 26/07/2002, observed that the CBI recommends Regular Departmental Action(R.D.A.) for major penalty only in those cases in which sufficient evidence to establish commission of a criminal misconduct is not available. The CBI had been nominating its officers to act as Pos in such cases and following up the progress of such cases till finalisation. In view of this, it was considered that the CBI, being a police agency, should concentrate more on investigating criminal offences rather than departmental misconducts. It was, therefore, suggested that the Pos should be appointed from the same Department in such cases in order to ensure expeditious finalisation of the disciplinary proceedings.


Contd.The CVC vide its instructions regarding R.D.A. against officials of Public Sector Enterprises had already provided a clause in para 10.4 wherein it has been clarified that it would not be necessary for the CBI to follow the matter in such cases after the disciplinary authority has initiated action for R.D.A. against concerned officials in accordance with its recommendations. Similar provision has been provided in para 7.4 of the special chapter on Banks in the Vigilance Manual.

The CVC and CBI has been examined and it has been decided :-

a. The disciplinary authorities may appoint their own officers as Pos in disciplinary proceedings, relating to Gazetted Officers, even though the investigation of such cases may have been conducted by the CBI.

b. The CBI may make available to the departmental Pos a complete set of original documents or copies of documents duly authenticated, in two sets, along with the list of witnesses.

c. However, in cases where CBI is proposing criminal action, as well as R.D.A. they may depute one of their inspectors as P.O., if the branch SP is satisfied it is necessary to do so.


Appointment of a Legal Practitioner as PO

“ The Disciplinary Authority who initiated the proceedings will also appoint simultaneously a govt. servant or a legal practitioner as the Presenting Officer to present on its behalf the case in support of the article of charge before the Inquiring Authority. Ordinarily a govt. servant belonging to the departmental set up who is conversant with the case will be appointed as the Presenting Officer except in cases involving complicated points of law where it may be considered desirable to appoint a legal practitioner to present the case on behalf of the Disciplinary Authority. An officer who made the preliminary investigation or inquiry into the case should not be appointed a Presenting Officer. “

( Ref. : Vigilance Manual, Part-I, Chapter X, para 23.1, page 105)


IMPORTANT DON’TS FOR P.O.

Try to get adjournments.

Assume the role of a public prosecutor.

Examine your witnesses on issues not relevant to the charges

Expect the CO to disprove the charges so long as the burden of proving the charges is not discharged by you.

Put leading questions to your witnesses during examination-in-chief.

Delay submission of your written brief to the I.O.


Some important tips for PO

Enquiry can not be held on holidays.l There is no such laid down prohibition.

Departmental Enquiry is a public enquiry.l Departmental Enquiry is conducted in camera and is not

a public enquiry. However, an enquiry conducted under Public Servant (Inquiries) Act, 1850 is public enquiry.

Is it mandatory to examine all the listed witnesses.

l It is not mandatory( Ashok Kumar Monga Vs UCO Bank, Delhi High Court)


Contd.

Can a witness not cited in the charge sheet be examined in the inquiry ?

l Yes. He can be examined either on the request of IA or PO.

The statement of witnesses must be recorded in question-answer form.

l It is not true. It can be recorded in narrative form. However, the question and answer may be recorded verbatim, wherever considered necessary for any reason.

Where CO does not avail the opportunity given to him to cross examine witness, the evidence of this witness can be relied upon.

l True (this satisfies the requirement of reasonable opportunity)

Charge can not be held proved where complainant is not examined.

l False


Contd.

Ex parte enquiry can be held where CO

l Could not be served with the charge sheet.

l Fails to submit the statement of defence.

l Declines to take part in the proceedings and remains absent.

l True

During ex parte enquiry :

l Notices of each hearing should be communicated to charged employee.

l CO is at liberty to join enquiry proceedings at any stage.

l True


THANK YOU

ANY QUESTION ?

TerminologyContd.Contd.Contd..Contd..Contd.Contd.Kinds of Disciplinary ProceedingsDifference between Article of Charge & Statement of Imputation of Misconduct in support of Article of ChargeCheck List for POContd.Role of Presenting OfficerPresenting Officer in Minor Penalty ProceedingsFunctions of the Presenting OfficerContd..Important do’s for P.O.Contd..Contd..Contd..Contd..Contd..IMPORTANT DON’TS FOR P.O.Skillful PresentationContd.Dilatory TacticsConted.CBI InvestigationContd.Contd.Appointment of a Legal Practitioner as POIMPORTANT DON’TS FOR P.O.Some important tips for POContd.Contd.THANK YOU

presented by - government of puducherry new 2018/de guidelines study...role of presenting officer...

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