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DEFENCE ASSISTANT - itgoatnp.in

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DEFENCE ASSISTANT
SHOW CAUSE NOTICE & CHARGE SHEET
CHARGE SHEET
CONDUCT RULES and CCA RULES
INGREDIENTS
ARTICLE OF CHARGEIMPUTATIONSEVIDENCESDOCUMENTS WITNESSES
BASICS FOR DA IN MY VIEW
DO NOT PREJUDGEDECIDE ABOUT TAKING THE CASELOOK AT THE FACTS NARRATEDNO PRESUMPTIONSKNOW THE SPECIFICS OF THE DEPARTMENTDO NOT COMPROMISEEXPLORE
CHARGED OFFICIAL
DECIDE WHETHER SPEAKS TRUTHFIND WGETHER HE BELIEVES IN YOUIDENTIFY KEY PITFALLSNO DISCOURAGING BUT ASSESSBASIC IDEA OF DOCUMENTS and WITNESSES
Documents
IngredientsExistence to proveCorrectness of the contents
Witness
IngredientsRelevanceCompetence
Rule 14 IMPOSITION OF MAJOR PENALTIES
(1) No order imposing any of the penalties specified in clauses (v) to (ix) of Rule 11 shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 15
(2) The disciplinary authority may itself inquire into, or appoint under this an authority to inquire into the truth thereof.
As a rule, persons who undertake this task should not be suspected of any bias in such cases and that the authorities concerned should bear this in mind before an InquiryOfficer is appointed in a disciplinary case.
Whenever an application is moved by a Government servant against whom disciplinary proceedings are initiated under the CCS (CCA) Rules against the inquiry officer on grounds of bias, the proceedings should be stayed and the application referred,alongwiththe relevant material, to the appropriate reviewing authority for considering the application and passing appropriate orders thereon
The disciplinary authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government servant under Rule 14 (4) of the CCS (CCA) Rules, 1965.
The disciplinary authority is not bound to appoint an Inquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with.
) In cases arising out of investigations by the Central Bureau of Investigation, the CBI should be consulted before a decision is taken to drop any of, or all the charges on the basis of the written statement of defence submitted by the accused Government servant. The reasons recorded by the disciplinary authority for dropping the charges should also be intimated to the Central Bureau of Investigation
The Central Vigilance Commission should be consulted where the disciplinary proceedings were initiated on the advice of the Commission and the intention is to drop or modify any of, or all the charges on the basis of the written statement of defence submitted by the accused Government servant.
If there is a complaint of sexual harassment within the meaning of rule 3 C of the Central Civil Services (Conduct) Rules, 1964, the complaints Committee established in each ministry or Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority for the purpose of these rules and the Complaints Committee shall hold, if separate procedure has not been prescribed for the complaints committee for holding the inquiry into the complaints of sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.
(3) Where it is proposed to hold an inquiry against a Government servant under this rule and rule 15, the disciplinary authority shall draw up or cause to be drawn up-(i) the substance of the imputations of misconduct or misbehaviour into definite and distinct articles of charge;(ii) a statement of the imputations of misconduct or misbehaviour in support of each article of charge, which shall contain-(a) a statement of all relevant facts including any admission or confession made by the Government servant;(b) a list of documents by which, and a list of witnesses by whom, the articles of charge are proposed to be sustained.
The Article of Charge should not be ambiguous or nebulous. The charge should be made clear without which the C.O will not be able to understand it and defend himself effectively. If the charge is not clear objection should be made in the first instance as any enquiry is time consuming.
Service of Charge Sheet
(4) The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.
Written statement of his defence and hearing in person.
Ask for the copies of listed documents and statements of witnesses which are going to be relied upon so as to know how the articles of charge are going to be sustained so that admission or denial could be decided. Do not blandly deny and ask for enquiry.continued
Reasons for asking
Inform the Disciplinary Authority that if on the basis of the materials asked for and supplied, if the C.O. were to accept guilt enquiry is notnexessary. Likewise if on the basis of the materials made available the C.O. is able to prove the charge as incorrect, then also the Enquiry may be avoided saving the wasteodtime in the enquiry as
Supply of Documents along with Charge Sheet
In the interest of timely conclusion of departmental proceedings, as far as possible, copies of the documents and the statements of witnesses relied upon for proving the charges may be furnished to the charged officer along with the charge-sheet. If the documents are bulky and the copies cannot be given to the Government Servant, he may be given an opportunity to inspect these documents in about 15 days time.(Para 21.2 of Chapter X of Vigilance Manual)
Appointment of I.O
(5)(a) On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if it considers it necessary so to do, appoint, under sub-rule (2), an inquiring authority for the purpose, and where all the articles of charge have been admitted by the Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as it may think fit and shall act in the manner laid down in rule 15.
5(b) If no written statement of defence is submitted by the Government servant, the disciplinary authority may itself inquire into the articles of charge, or may, if it considers it necessary to do so, appoint, under sub-rule (2), an inquiring authority for the purpose.
Non reply by C.O. is not admission
Appointment of P.O.
5(c) Where the disciplinary authority itself inquires into any article of charge or appoints an inquiring authority for holding an inquiry into such charge, it may, by an order, appoint a Government servant or a legal practitioner, to be known as the "Presenting Officer" to present on its behalf the case in support of the articles of charge.
DEFENCE ASSISTANT
(8)(a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits
Recordsfor I.O.
(6) The disciplinary authority shall, where it is not the inquiring authority, forward to the inquiring authority-(i) a copy of the articles of charge and the statement of the imputations of misconduct or misbehaviour;(ii) a copy of the written statement of the defence, if any, submitted by the Government servant;(iii) a copy of the statements of witnesses, if any, referred to in sub-rule (3);(iv) evidence proving the delivery of the documents referred to in sub-rule (3) to the Government servant; and(v) a copy of the order appointing the "Presenting Officer".
Daily Order Sheet
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.(Para 22 of Chapter XI of Vigilance Manual)
Preliminary hearing before I.O.
(7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow.
DA from other station
Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.Note: The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.
Rejection of Def Asst from other station
In all cases where the inquiring authority rejects the request of the charged Government servant for engaging a defence assistant, from any station other than the headquarters of such Government servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Government servant to enable him to make a representation against the order, if he so desires, to the disciplinary authority
Representation to the Disc. Authority for outstationAsstt
. On receipt of the representation from the charged Government servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the inquiring authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order.
Retired Government Servant as D.A
(b) The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf.
Retired as DefAsstt
(i) The retired Government servant concerned should have, retired from service under the Central Government.(ii) If the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, contained in Rule 14 (8) of the CCS (CCA) Rules, 1965 would apply.
(iii) The retired Government servant concerned should not have, in any manner, been associated with the case at investigation stage or otherwise in his official capacity.(iv) The retired Government servant concerned should not act as a defence assistant in more than seven cases at a time. The retired Government servant should satisfy the inquiring officer that he does not have more than five cases at hand including the case in question.
Preliminary Questioning of C.O.
(9) The I.O. authority shall ask him whether he is guilty or has any defence to make and it he pleads guilty to any of the articles of charge, the inquiring authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.
Report of Guilt
(10) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the government servant pleads guilty.
Order for Inspection of Documents
(11) The inquiring authority shall, if the Government servant fails to appear within the specified time or refuses or omits to plead, require the Presenting Officer to produce the evidence by which he proposes to prove the articles of charge, and shall adjourn the case to a later date not exceeding thirty days, after recording an order that the Government servant may, for the purpose of preparing his defence: (This is mandatory)
(i) inspect, the documents specified in the list referred to in sub-rule (3);(ii) submit a list of witnesses to be examined on his behalf;NOTE-If the Government servant applies orally or in writing for the supply of copies of the statements of witnesses mentioned in the list referred to in sub-rule (3), the inquiring authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority.
C.O.’s Documents
(iii) give a notice within ten days of the order or within such further time not exceeding ten days as the inquiring authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (3).NOTE-The Government servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government
Requisition ofDefenceDocuments
(12) The inquiring authority shall, on receipt of the notice for the discovery or production of 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 by such date as may be specified in such requisition:Provided that the inquiring authority may, for reasons to be recorded by it in writing, refuse to requisition such of the documents as are, in its opinion, not relevant to the case.
Production ofDefenceDocuments
(13) On receipt of the requisition referred to in sub-rule (12), every authority having the custody or possession of the requisitioned documents shall produce the same before the inquiring authority:
. Production of documentary evidence by P.O.
The documentary evidence by which the articles of charge are proposed to be proved will then be produced by the officer having custody of documents or by an officer deputed by him for the purpose. The documents produced will be numbered as Ex S.1, Ex. S.2 and so on. The Presenting Officer should not produce the documents as in that event he places himself in the position of a witness and the accused officer may insist and cross-examining him. (Para 8 of Chapter XI of Vigilance Manual)
WithholdingDefenceDocuments
If the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or any of such documents would be against the public interest or security of the State, it shall inform the inquiring authority accordingly and the inquiring authority shall, on being so informed, communicate the information to the Government servant and withdraw the requisition made by it for the production or discovery of such documents.
Relevancy ofDefenceDocuments.
. The question of relevancy should be looked at from the point of view of the defence and if there is any possible line of defence to which the document may, in some way be relevant though the relevance is not clear to the disciplinary authority at the time that the request is made, the request for access should not be rejected. The power to deny access on the ground of public interest should be exercised only when there are reasonable and sufficient grounds to believe that public interest will clearly suffer.
Examination, Cross and Re-examinionand Re-Cross.
14) On the date fixed for the inquiry, the oral and documentary evidence by which the articles of charge are proposed to be proved shall be produced by or on behalf of the disciplinary authority. The witnesses shall be examined by or on behalf of the Presenting Officer and may be cross-examined by or on behalf of the Government servant. The Presenting Officer shall be entitled to re-examine the witnesses on any points on which they have been cross-examined, but not on any new matter, without the leave of the inquiring authority. The inquiring authority may also put such questions to the witnesses as it thinks fit.
Cross Examination on re-examination
It is hereby clarified that if re-examination by the presenting officer is followed on any new matter not already covered by the earlier examination/cross-examination, a cross-examination on such new matters, covered by the re-examination may also be allowed to meet the ends of nature justice.
Examination of a witness by the Inquiry Officer
After the examination, cross-examination and re-examination of a witness, the Inquiry Officer may put such questions to the witness as he may think fit. Such a witness may be cross-examined by or on behalf of the Government servant with the leave of the Inquiry Officer on matters covered by the questions put by the Inquiry Officer.
New Evidence by the P.O.
(15) The inquiring authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the Government servant or may itself call for new evidence or recall and re-examine any witness and in such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned.
Opportunity to C.O. on Fresh Evidence
(15) In such case the Government servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the inquiry is adjourned.
Restriction on New Evidence
NOTE.- New evidence shall not be permitted or called for or any witness shall not be recalled tofill up any gapin the evidence. Such evidence may be called for only when there is aninherent lacuna or defectin the evidence which has been produced originally
Statement ofDefenceat the close of P.O.’s side
(16) When the case for the disciplinary authority is closed, the Government servant shall be required to state his defence, orally or in writing, as he may prefer. If the defence is made orally, it shall be recorded and the Government servant shall be required to sign the record. In either case, a copy of the statement of defence shall be given to the Presenting Officer, if any, appointed.
Defenceside Examination
(17) The evidence on behalf of the Government servant shall then be produced. The Government servant may examine himself in his own behalf if he so prefers. The witnesses produced by the Government servant shall then be examined and shall be liable to cross-examination, re-examination and examination by the inquiring authority according to the provisions applicable to the witnesses for the disciplinary authority.
General Examination of the C.O. by I.O.
(18) The inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him.
Summing up by the P.O. and C.O.
(19) The inquiring authority may, after the completion of the production of evidence, hear the Presenting Officer, if any, appointed, and the Government servant, or permit them to file written briefs of their respective case, if they so desire
Allegation of I.O.’s bias
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 proceedings should be stopped and the application, along with other relevant material, be referred to the appropriate appellate authority for consideration and appropriateorders. (Para 21.2 ofVigManual Chapter XI)
Ex parte enquiry
(20) 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 inquiring authority or otherwise fails or refuses to comply with the provisions of this rule, the inquiring authority may hold the inquiry ex parte.
Enquiry by or ordered by Disc Authority not competent to levy Major Penalty
(21)(a) Where a disciplinary authority competent to impose any of the penalties specified in clause (i) to (iv) of rule has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regard to its own findings or having regard to its decision on any of the findings of any inquiring authority appointed by it, is of the opinion that the penalties specified in clauses (v) to (ix) of rule 11 should be imposed on the Government servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.
Dropping the enquiry at any stage
(a) The disciplinary authority has the inherent power to review and modify the articles of charge or drop some of the charges or all the charges after the receipt and examination of the written statement of defence submitted by the accused Government servant under Rule 14 (4) of the CCS (CCA) Rules, 1965.(b) The disciplinary authority is not bound to appoint an Inquiry Officer for conducting an inquiry into the charges which are not admitted by the accused official but about which the disciplinary authority is satisfied on the basis of the written statement of defence that there is no further cause to proceed with.
Further enquiry by superior Authority
21 (b) The disciplinary authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any of the witnesses is necessary in the interests of justice, recall the witness and examine, cross-examine and re-examine the witness and may impose on the Government servant such penalty as it may deem fit in accordance with these rules.
Successor I.O
(22) Whenever any inquiring authority, after having heard and recorded the whole or any part of the evidence in an inquiry ceases to exercise jurisdiction therein, and is succeeded by another inquiring authority which has, and which exercises, such jurisdiction, the inquiring authority so succeeding may act on the evidence so recorded by its predecessor, or partly recorded by its predecessor and partly recorded by itself:Provided that if the succeeding inquiring authority is of the opinion that further examination of any of the witnesses whose evidence has already been recorded is necessary in the interests of justice, it may recall, examine, cross-examine and re-examine any such witnesses as hereinbefore provided.
Report of I.O.
(23)(i) After the conclusion of the inquiry, a report shall be prepared and it shall contain-(a) the articles of charge and the statement of the imputations of misconduct or misbehaviour;(b) the defence of the Government servant in respect of each article of charge;(c) an assessment of the evidence in respect of each article of charge;(d) the findings on each article of charge and the reasonstherefor.
Finding on Fresh Point by I.O>
EXPLANATION- If in the opinion of the inquiring authority the proceedings of the inquiry establish any article of charge different from the original articles of the charge, it may record its findings on such article of charge:Provided that the findings on such article of charge shall not 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 of defending himself against such article of charge.
I.O.’s report
(ii) The inquiring authority, where it is not itself the disciplinary authority, shall forward to the disciplinary authority the records of inquiry which shall include:-(a) the report prepared by it under clause (i).(b) the written statement of defence, if any, submitted by the Government servant;(c) the oral and documentary evidence produced in the course of the inquiry;(d) written briefs, if any, filed by the Presenting Officer or the Government servant or both during the course of the inquiry; and(e) the orders, if any, made by the disciplinary authority and the inquiring authority in regard to the inquiry.
Opportunitybefore penaltygi
“The report of the Inquiry Officer is enclosed. The Disciplinary Authority will take a suitable decision after considering the report. If you wish to make any representation or submission, you may do so in writing to the Disciplinary Authority within 15 days of receipt of this letter.”

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DEFENCE ASSISTANT - itgoatnp.in