The PO, despite been given number of opportunities by the EO to produce Management documents, did not submit any management documents and the EO closed the enquiry ordering the PO to submit his brief within 15 days. The PO did not submit the brief but consulted somebody in Disciplinary Action Cell of Bank and was advised to locate MEs. It it possible for Disciplinary authority to allow the PO to submit MEs or help PO to submit the MEs when the EO has closed the enquiry? D&A Regulation 7 of PNB clearly states that the DA can reopen the enquiry if he does not agree with the EO's report. In this case EO has not submitted his report as PO has not submitted his brief. In absence of brief of PO the CSO has also not submitted his reply. The question is that will it be legal to order EO to reopen the enquiry proceedings when the only provision to do so is Regulation 7 of D&A Regulations? Can the Disciplinary Authority reopen the enquiry or the EO can reopen the enquiry, sui motto, to facilitate the PO to submit MEs which he had failed to submit despite numerous opportunities rather declined to submit any ME to present the Management's case?
From India, Delhi
1From India, Delhi
Reopening the case and allowing the PO to submit the documents in this matter is an irregularity but it is not an illegality. The principles of natural justice require that the delinquent employee should be given the opportunity to produce evidence and to rebut the evidence against him/her. So long as it is ensured, the procedural flaws are not material and there is no prejudice caused to the delinquent.
From India, Mumbai
From India, Mumbai
Thanks for the input. My submission is that irregularity is attributable to incorrect procedure but illegality arises out of an action which is not covered by law or regulations. The D&A regulations of PNB do not allow the EO to reopen the enquiry proceedings. Ample opportunities were given to the PO to submit the MEs. He conceded twice during the enquiry proceedings that he doesn't want to submit any document to present the case. Now he is unable to submit the brief as he is being asked to prove the charges. Regulation 7 permits the disciplinary authority to reopen the enquiry if he doesn't agree with the EO's report & EO can't submit his report till PO submits his brief. This is the legal tangle of which I am looking an answer.
From India, Delhi
From India, Delhi
Dear Citehr member Shri Kulbhushan,
The status of the RDA as posted by you is that the EO ordered that enquiry proceedings are closed and directed the PO to submit his written brief. But according to your version the PO did not submit his written brief inspite of repeated opportunities given to him. It is also stated by you that the PO could not produce MEs, both oral and documentary, during the proceedings of enquiry inspite of several opportunities given to him. On the basis of the version of these facts the procedure prescribed in D&A Rules is very clear that when the EO ordered the proceedings as closed and directed the PO to submit his written brief, then it is to be seen what reasons were given by the PO for his inability to produce the MEs both oral and documentary. Whether the PO had specifically stated that he is unable to produce the MEs and documents and witnesses as listed in the charge sheet should be dropped. In case this fact was recorded by the EO in Daily Order Sheet of the enquiry proceedings, then the EO has no authority to re-open the enquiry proceedings. At the same it is also to be seen whether the CSO was asked to give his Defense Statement and produce his Defense Witnesses before closing the enquiry proceedings. If the EO did not ask the CSO to state his Defense and produce his DWs, then closure of enquiry proceedings suffer from legal infirmities and violation of prescribed procedure enshrined in D&A Rules.
2. The next point raised by you is that DA is ordering the PO to locate MEs and re-open the inquiry. It is to be borne in mind that PO presents the case on behalf of the DA, and DA is competent to direct the PO in the matter of presentation of MEs. But the only bone of contention is that EO has ordered the enquiry proceedings as closed. But this type of closure is not envisaged in the D&A Rules, Proceedings can be closed only when the PO specifically requests the EO to drop the MEs. But in this case it does not appear to be so.
3. Thirdly when the PO has been unable to produce the MEs then the case of the management fails in itself. It was the opportunity for the CSO to submit written request to the EO to allow him to submit his Defense Brief and hold the alleged charges as Not Proved. But this opportunity has also not been availed by the CSO.
4. In these circumstances, if the DA orders to re-open the enquiry then the CSO should request for a definite time frame within which PO should produce his MEs and offer them for cross examination to the CSO. This will be agreed to by the EO and further proceedings can be taken up on the merits of the case.
Please frame your strategy of defense as suggested.
Regards
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management.
Mob. 9315516083
New Delhi/Saturday/17.09.2022/10:25pm
From India, New Delhi
The status of the RDA as posted by you is that the EO ordered that enquiry proceedings are closed and directed the PO to submit his written brief. But according to your version the PO did not submit his written brief inspite of repeated opportunities given to him. It is also stated by you that the PO could not produce MEs, both oral and documentary, during the proceedings of enquiry inspite of several opportunities given to him. On the basis of the version of these facts the procedure prescribed in D&A Rules is very clear that when the EO ordered the proceedings as closed and directed the PO to submit his written brief, then it is to be seen what reasons were given by the PO for his inability to produce the MEs both oral and documentary. Whether the PO had specifically stated that he is unable to produce the MEs and documents and witnesses as listed in the charge sheet should be dropped. In case this fact was recorded by the EO in Daily Order Sheet of the enquiry proceedings, then the EO has no authority to re-open the enquiry proceedings. At the same it is also to be seen whether the CSO was asked to give his Defense Statement and produce his Defense Witnesses before closing the enquiry proceedings. If the EO did not ask the CSO to state his Defense and produce his DWs, then closure of enquiry proceedings suffer from legal infirmities and violation of prescribed procedure enshrined in D&A Rules.
2. The next point raised by you is that DA is ordering the PO to locate MEs and re-open the inquiry. It is to be borne in mind that PO presents the case on behalf of the DA, and DA is competent to direct the PO in the matter of presentation of MEs. But the only bone of contention is that EO has ordered the enquiry proceedings as closed. But this type of closure is not envisaged in the D&A Rules, Proceedings can be closed only when the PO specifically requests the EO to drop the MEs. But in this case it does not appear to be so.
3. Thirdly when the PO has been unable to produce the MEs then the case of the management fails in itself. It was the opportunity for the CSO to submit written request to the EO to allow him to submit his Defense Brief and hold the alleged charges as Not Proved. But this opportunity has also not been availed by the CSO.
4. In these circumstances, if the DA orders to re-open the enquiry then the CSO should request for a definite time frame within which PO should produce his MEs and offer them for cross examination to the CSO. This will be agreed to by the EO and further proceedings can be taken up on the merits of the case.
Please frame your strategy of defense as suggested.
Regards
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management.
Mob. 9315516083
New Delhi/Saturday/17.09.2022/10:25pm
From India, New Delhi
Thanks a lot for the invaluable advise. The PO has stated that he doesn't want to submit any documents to present the case. You are correct that at this stage CSO should have requested that he may submit his written arguments on defence. Prior to this the CSO has already submitted his defence documents and their relevance. Thus all his defence documents were taken on the record of enquiry proceedings. It has also been brought on record of enquiry proceedings that article of charge & imputation of lapse is based only on photocopies of MEs. Will it be possible for the CSO to write to EO that as considerable time has elapsed & PO has not given his brief & that he had declined to submit MEs to present the case during enquiry as such the CSO may now be permitted to submit his defence? This will preempt reopening of Enquiry Proceedings as so far no such orders to reopen the enquiry have been received by the CSO.
From India, Delhi
From India, Delhi
Dear Citehr Member Shri Kulbhushan ji,
Your response to my opinion/advice indicates that PO has stated that he does not want to submit any documents in support of the prosecution case, but it remains to be seen whether this statement is recorded in Daily Order Sheet/Record of Enquiry Proceedings and signed by PO, CSO, DA (if any) and the EO, and what language has been used in the Daily Order Sheet.
2. With regard to status of defense documents and their relevance, you state that they have been submitted by you and the same taken on record. That goes to support your defense to the extent of relevance indicated by you / CSO.
3. So far as MEs are concerned it is stated by you that these are photocopies, but the question remains to be answered whether the CSO has raised the question of authenticity on the photocopies of MEs? If not, the photocopies can be considered as evidence in support of charge. However if there is any pre-recorded statement of a listed witness, then that statement can be taken on record through production of that witness only, not otherwise.
4. The next aspect would be to see what reply was initially given by the CSO when the charge sheet was served upon him.
5. It is not indicated by you as to how much time has elapsed after the order of closure of enquiry was ordered by the EO, The text of the order sheet is to be seen as to what implications it has on the prosecution and defense case.
6. If the CSO makes a request to the EO to submit his Defense Brief in wake of non-submission of brief by the PO, that does not amount to re-opening of enquiry.
It may be noted that success of the departmental enquiry depends not upon the irregularities committed by the EO or PO, but on the manner of presentation and merits of defense arguments.
So you can accordingly chalk out your strategy of defense. If you feel to take any assistance you are welcome to write to me at my below mail ID / cell number.
If you find the advice/opinion appropriate, please mark these opinions/advice as valid on this page.
With best wishes.
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management.
Mob. 9315516083
New Delhi/Sunday/18.09.2022/03:46pm
From India, New Delhi
Your response to my opinion/advice indicates that PO has stated that he does not want to submit any documents in support of the prosecution case, but it remains to be seen whether this statement is recorded in Daily Order Sheet/Record of Enquiry Proceedings and signed by PO, CSO, DA (if any) and the EO, and what language has been used in the Daily Order Sheet.
2. With regard to status of defense documents and their relevance, you state that they have been submitted by you and the same taken on record. That goes to support your defense to the extent of relevance indicated by you / CSO.
3. So far as MEs are concerned it is stated by you that these are photocopies, but the question remains to be answered whether the CSO has raised the question of authenticity on the photocopies of MEs? If not, the photocopies can be considered as evidence in support of charge. However if there is any pre-recorded statement of a listed witness, then that statement can be taken on record through production of that witness only, not otherwise.
4. The next aspect would be to see what reply was initially given by the CSO when the charge sheet was served upon him.
5. It is not indicated by you as to how much time has elapsed after the order of closure of enquiry was ordered by the EO, The text of the order sheet is to be seen as to what implications it has on the prosecution and defense case.
6. If the CSO makes a request to the EO to submit his Defense Brief in wake of non-submission of brief by the PO, that does not amount to re-opening of enquiry.
It may be noted that success of the departmental enquiry depends not upon the irregularities committed by the EO or PO, but on the manner of presentation and merits of defense arguments.
So you can accordingly chalk out your strategy of defense. If you feel to take any assistance you are welcome to write to me at my below mail ID / cell number.
If you find the advice/opinion appropriate, please mark these opinions/advice as valid on this page.
With best wishes.
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management.
Mob. 9315516083
New Delhi/Sunday/18.09.2022/03:46pm
From India, New Delhi
Thanks a lot for valuable input. in response to first point i am reproducing the exact language used by the PO in respect of non submission of documents to present case:
- “EO to PO:- PO is advised to attend enquiry along with documents required to present the case”.
It was again noted in the enquiry proceedings dated 25.05.2022 that:
“On 26.04.2022, PO was advised to attend the enquiry along with documents to present the case”.
EO to PO:- “Have you brought documents required to present the case?”
PO to EO:- “No, I have not brought the documents to present the case……….I will present all required documents in next date of hearing”.
It was further noted in the same proceedings that:
“PO is advised to present all documents required to present the case……positively on next date of hearing”.
It is noted in the enquiry proceeding dated 05.07.2022 that:
“PO, vide his mail dated 09.06.2022 informed as that the required documents have not been arranged till now, hence requested 10 more days for collecting documents. In view of the request of PO, it has been decided to hold the enquiry on 20.06.2022”.
The Presenting Officer further requested for postponing the enquiry proceeding therefore, the enquiry was refixed for 05.07.2022.
The PO has stated in the enquiry proceedings dated 05.07.2022 when he was asked:
EO to PO “Do you want to produce any documents in enquiry proceedings for presenting the case”.
The PO replied that:
PO to EO:- “No, I don’t want to produce any documents in enquiry proceedings for presenting the case”.
It was further recorded in the enquiry proceeding dated 20.07.2022 that:
EO to PO:- “Further, you are also requested to produce documents required to present the case in enquiry proceedings positively so that enquiry proceedings may be concluded on the next date of hearing”.
It is also a matter of record of enquiry proceedings dated 06.08.2022 that the PO submitted himself that:
PO to EO:- “Now submission of documents from my side is over and I have not to submit any documents either required by the CSO or from my side to present the case”.
It was also recorded that:
EO to CSO:- “PO has informed that no further documents are to be submitted from his side”.
- point no 3. The CSO has not raised a question on the authenticity of the photocopies in the enquiry proceedings. The exact language recorded by EO is as under:
“It is correct that charges as per Charge sheet dated 14.01.2016 are based on Management documents, which are marked in the enquiry proceedings as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022” and that “It is correct that imputation of charge was based on photocopies of the documents, which are marked as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022”. In view of CSO's objection, it became mandatory for the PO to submit the certified copies of the documents, make the original documents available for inspection and prove them with the help of documentary or oral evidence. But it was not done. No witness was called to prove even the photocopies.
- No documents were supplied to to the EO with the charge sheet dated 14.01.2016. He had demanded the same twice in 2020 & 2021 but none were provided. The first time the CSO was supplied the photocopies after six years of serving of CS on 26.04.22 i.e. on the first day of enquiry. Although the departmental Enquiry Proceedings are not governed by the Evidence Act, yet the basic tenets of the Evidence Act cannot be ignored. The photocopies unless got compared with the original in presence of the notice charged officer cannot be considered as an evidence against him. Also they are to be proved with help of a witness which has also not been done.
- In his initial reply the CSO had denied the allegations.
- The EO had closed the proceedings on 06.08.22 and till date PO has not submitted his brief. He was given 15 days to submit his brief i.e. by 20.08.2022.
- The CSO has already requested the EO to allow him to submit his written arguments on defence in wake of non submission of brief by PO as it was apprehended that the Management on its own would reopen the enquiry proceedings by forcing the EO to accept the request of the PO that he wants to submit the MEs now as he has been able to locate them now. Such things do happen in enquiry proceedings & it is left to the CSO to challenge it in Court.
- There are enough material on record of enquiry proceedings in form of defence evidence to disprove the charges. However, it is humbly submitted that it is settled law that the disciplinary proceedings being quasi-judicial in nature, there should be some evidence to prove the charge which are to be adduced by the Presenting officer and that the Enquiry Officer is a Judge who has to weigh all the evidences i.e., submitted by the Presenting Officer on behalf of the Management and the CSO in his defence and then submit his brief. Also, holding departmental proceedings and recording finding of guilt against any employee and imposing punishment for same is a quasi-judicial function and not an administrative function, hence, authorities have to strictly adhere to statutory rules while imposing punishment.
It is also a settled law that the presenting officer upon analysing the documents both, Management Documents, and Defence Documents, must arrive at a conclusion that there had been an evidence to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact and he cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant defence documents only on the basis of surmises and conjectures. He has to apply his independent mind to all the documents presented in the enquiry proceeding. But here, unfortunately, the Presenting officer has submitted his brief without application of mind, without submitting any Management Document & without analysing the Defence documents.
It is also a settled law that when a major punishment is proposed to be imposed the department has to prove the charges against the employee by examining the witnesses and by documentary evidence. In the instant case no evidence, documentary or oral has been adduced by the presenting officer. The initial burden is on the Presenting Officer to prove the charges in which he has failed miserably.
From India, Delhi
- “EO to PO:- PO is advised to attend enquiry along with documents required to present the case”.
It was again noted in the enquiry proceedings dated 25.05.2022 that:
“On 26.04.2022, PO was advised to attend the enquiry along with documents to present the case”.
EO to PO:- “Have you brought documents required to present the case?”
PO to EO:- “No, I have not brought the documents to present the case……….I will present all required documents in next date of hearing”.
It was further noted in the same proceedings that:
“PO is advised to present all documents required to present the case……positively on next date of hearing”.
It is noted in the enquiry proceeding dated 05.07.2022 that:
“PO, vide his mail dated 09.06.2022 informed as that the required documents have not been arranged till now, hence requested 10 more days for collecting documents. In view of the request of PO, it has been decided to hold the enquiry on 20.06.2022”.
The Presenting Officer further requested for postponing the enquiry proceeding therefore, the enquiry was refixed for 05.07.2022.
The PO has stated in the enquiry proceedings dated 05.07.2022 when he was asked:
EO to PO “Do you want to produce any documents in enquiry proceedings for presenting the case”.
The PO replied that:
PO to EO:- “No, I don’t want to produce any documents in enquiry proceedings for presenting the case”.
It was further recorded in the enquiry proceeding dated 20.07.2022 that:
EO to PO:- “Further, you are also requested to produce documents required to present the case in enquiry proceedings positively so that enquiry proceedings may be concluded on the next date of hearing”.
It is also a matter of record of enquiry proceedings dated 06.08.2022 that the PO submitted himself that:
PO to EO:- “Now submission of documents from my side is over and I have not to submit any documents either required by the CSO or from my side to present the case”.
It was also recorded that:
EO to CSO:- “PO has informed that no further documents are to be submitted from his side”.
- point no 3. The CSO has not raised a question on the authenticity of the photocopies in the enquiry proceedings. The exact language recorded by EO is as under:
“It is correct that charges as per Charge sheet dated 14.01.2016 are based on Management documents, which are marked in the enquiry proceedings as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022” and that “It is correct that imputation of charge was based on photocopies of the documents, which are marked as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the enquiry proceedings dated 26.04.2022”. In view of CSO's objection, it became mandatory for the PO to submit the certified copies of the documents, make the original documents available for inspection and prove them with the help of documentary or oral evidence. But it was not done. No witness was called to prove even the photocopies.
- No documents were supplied to to the EO with the charge sheet dated 14.01.2016. He had demanded the same twice in 2020 & 2021 but none were provided. The first time the CSO was supplied the photocopies after six years of serving of CS on 26.04.22 i.e. on the first day of enquiry. Although the departmental Enquiry Proceedings are not governed by the Evidence Act, yet the basic tenets of the Evidence Act cannot be ignored. The photocopies unless got compared with the original in presence of the notice charged officer cannot be considered as an evidence against him. Also they are to be proved with help of a witness which has also not been done.
- In his initial reply the CSO had denied the allegations.
- The EO had closed the proceedings on 06.08.22 and till date PO has not submitted his brief. He was given 15 days to submit his brief i.e. by 20.08.2022.
- The CSO has already requested the EO to allow him to submit his written arguments on defence in wake of non submission of brief by PO as it was apprehended that the Management on its own would reopen the enquiry proceedings by forcing the EO to accept the request of the PO that he wants to submit the MEs now as he has been able to locate them now. Such things do happen in enquiry proceedings & it is left to the CSO to challenge it in Court.
- There are enough material on record of enquiry proceedings in form of defence evidence to disprove the charges. However, it is humbly submitted that it is settled law that the disciplinary proceedings being quasi-judicial in nature, there should be some evidence to prove the charge which are to be adduced by the Presenting officer and that the Enquiry Officer is a Judge who has to weigh all the evidences i.e., submitted by the Presenting Officer on behalf of the Management and the CSO in his defence and then submit his brief. Also, holding departmental proceedings and recording finding of guilt against any employee and imposing punishment for same is a quasi-judicial function and not an administrative function, hence, authorities have to strictly adhere to statutory rules while imposing punishment.
It is also a settled law that the presenting officer upon analysing the documents both, Management Documents, and Defence Documents, must arrive at a conclusion that there had been an evidence to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact and he cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant defence documents only on the basis of surmises and conjectures. He has to apply his independent mind to all the documents presented in the enquiry proceeding. But here, unfortunately, the Presenting officer has submitted his brief without application of mind, without submitting any Management Document & without analysing the Defence documents.
It is also a settled law that when a major punishment is proposed to be imposed the department has to prove the charges against the employee by examining the witnesses and by documentary evidence. In the instant case no evidence, documentary or oral has been adduced by the presenting officer. The initial burden is on the Presenting Officer to prove the charges in which he has failed miserably.
From India, Delhi
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