The PO, despite being given a number of opportunities by the EO to produce management documents, did not submit any management documents, and the EO closed the inquiry, ordering the PO to submit his brief within 15 days. The PO did not submit the brief but consulted somebody in the Disciplinary Action Cell of the bank and was advised to locate MEs. Is it possible for the Disciplinary Authority to allow the PO to submit MEs or help the PO submit the MEs when the EO has closed the inquiry? D&A Regulation 7 of PNB clearly states that the DA can reopen the inquiry if he does not agree with the EO's report. In this case, the EO has not submitted his report as the PO has not submitted his brief. In the absence of the PO's brief, the CSO has also not submitted his reply.
The question is, will it be legal to order the EO to reopen the inquiry proceedings when the only provision to do so is Regulation 7 of D&A Regulations? Can the Disciplinary Authority reopen the inquiry, or can the EO reopen the inquiry, suo motu, to facilitate the PO to submit MEs, which he had failed to submit despite numerous opportunities rather than declined to submit any ME to present the management's case?
From India, Delhi
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1The question is, will it be legal to order the EO to reopen the inquiry proceedings when the only provision to do so is Regulation 7 of D&A Regulations? Can the Disciplinary Authority reopen the inquiry, or can the EO reopen the inquiry, suo motu, to facilitate the PO to submit MEs, which he had failed to submit despite numerous opportunities rather than declined to submit any ME to present the management's case?
From India, Delhi
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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
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From India, Mumbai
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Thanks for the input. My submission is that irregularity is attributable to incorrect procedure, but illegality arises out of an action that 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, and the EO can't submit his report until the PO submits his brief. This is the legal tangle for which I am seeking an answer.
From India, Delhi
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From India, Delhi
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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. However, according to your version, the PO did not submit his written brief despite 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 the enquiry despite several opportunities given to him. Based on these facts, the procedure prescribed in D&A Rules is very clear. When the EO ordered the proceedings as closed and directed the PO to submit his written brief, it should be examined what reasons were given by the PO for his inability to produce the MEs, both oral and documentary. Whether the PO specifically stated that he is unable to produce the MEs and documents and witnesses as listed in the charge sheet should be dropped. If this fact was recorded by the EO in the Daily Order Sheet of the enquiry proceedings, then the EO has no authority to reopen the enquiry proceedings. Additionally, it should be determined 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 the closure of the enquiry proceedings suffers from legal infirmities and violates the prescribed procedure enshrined in D&A Rules.
The next point raised is that DA is ordering the PO to locate MEs and reopen the inquiry. It should be remembered that the PO presents the case on behalf of the DA, and the DA is competent to direct the PO in the matter of presentation of MEs. The contention arises from the fact that the EO has ordered the enquiry proceedings as closed. However, this type of closure is not envisaged in the D&A Rules. Proceedings can only be closed when the PO specifically requests the EO to drop the MEs, which does not appear to be the case here.
Thirdly, when the PO has been unable to produce the MEs, the case of the management fails in itself. It was an opportunity for the CSO to submit a written request to the EO to allow him to submit his Defense Brief and hold the alleged charges as Not Proved. However, this opportunity has also not been availed by the CSO.
In these circumstances, if the DA orders to reopen the enquiry, then the CSO should request a definite time frame within which the PO should produce his MEs and offer them for cross-examination to the CSO. This agreement by the EO will enable further proceedings to be taken up on the merits of the case.
Regards,
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management
Mob. 9315516083
srivastavacmlal@gmail.com
New Delhi/Saturday/17.09.2022/10:25pm
From India, New Delhi
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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. However, according to your version, the PO did not submit his written brief despite 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 the enquiry despite several opportunities given to him. Based on these facts, the procedure prescribed in D&A Rules is very clear. When the EO ordered the proceedings as closed and directed the PO to submit his written brief, it should be examined what reasons were given by the PO for his inability to produce the MEs, both oral and documentary. Whether the PO specifically stated that he is unable to produce the MEs and documents and witnesses as listed in the charge sheet should be dropped. If this fact was recorded by the EO in the Daily Order Sheet of the enquiry proceedings, then the EO has no authority to reopen the enquiry proceedings. Additionally, it should be determined 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 the closure of the enquiry proceedings suffers from legal infirmities and violates the prescribed procedure enshrined in D&A Rules.
The next point raised is that DA is ordering the PO to locate MEs and reopen the inquiry. It should be remembered that the PO presents the case on behalf of the DA, and the DA is competent to direct the PO in the matter of presentation of MEs. The contention arises from the fact that the EO has ordered the enquiry proceedings as closed. However, this type of closure is not envisaged in the D&A Rules. Proceedings can only be closed when the PO specifically requests the EO to drop the MEs, which does not appear to be the case here.
Thirdly, when the PO has been unable to produce the MEs, the case of the management fails in itself. It was an opportunity for the CSO to submit a written request to the EO to allow him to submit his Defense Brief and hold the alleged charges as Not Proved. However, this opportunity has also not been availed by the CSO.
In these circumstances, if the DA orders to reopen the enquiry, then the CSO should request a definite time frame within which the PO should produce his MEs and offer them for cross-examination to the CSO. This agreement by the EO will enable further proceedings to be taken up on the merits of the case.
Regards,
Chandramani Lal Srivastava
Master Consultant - Service matters/Sr. Defense Consultant in Dept. Enquiries, HR/IR, Tenders and Contract Management
Mob. 9315516083
srivastavacmlal@gmail.com
New Delhi/Saturday/17.09.2022/10:25pm
From India, New Delhi
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Thank you very much for the invaluable advice. The PO has stated that he doesn't want to submit any documents to present the case. You are correct that at this stage, the CSO should have requested that he may submit his written arguments on defense. Prior to this, the CSO has already submitted his defense documents and their relevance. Thus, all his defense documents were taken on the record of the inquiry proceedings. It has also been brought on the record of the inquiry proceedings that the article of charge and imputation of lapse is based only on photocopies of MEs.
Would it be possible for the CSO to write to EO that as a considerable amount of time has elapsed and the PO has not given his brief, and that he had declined to submit MEs to present the case during the inquiry, as such the CSO may now be permitted to submit his defense? This will preempt the reopening of the Inquiry Proceedings as so far no such orders to reopen the inquiry have been received by the CSO.
From India, Delhi
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Would it be possible for the CSO to write to EO that as a considerable amount of time has elapsed and the PO has not given his brief, and that he had declined to submit MEs to present the case during the inquiry, as such the CSO may now be permitted to submit his defense? This will preempt the reopening of the Inquiry Proceedings as so far no such orders to reopen the inquiry have been received by the CSO.
From India, Delhi
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Dear Citehr Member Shri Kulbhushan ji,
Your response to my opinion/advice indicates that the PO has stated that he does not want to submit any documents in support of the prosecution case. However, it remains to be seen whether this statement is recorded in the Daily Order Sheet/Record of Enquiry Proceedings and signed by the PO, CSO, DA (if any), and the EO, and what language has been used in the Daily Order Sheet.
With regard to the 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.
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 the charge. However, if there is any pre-recorded statement of a listed witness, then that statement can be taken on record through the production of that witness only, not otherwise.
The next aspect would be to see what reply was initially given by the CSO when the charge sheet was served upon him.
It is not indicated by you as to how much time has elapsed after the order of closure of the 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.
If the CSO makes a request to the EO to submit his Defense Brief in the wake of non-submission of the brief by the PO, that does not amount to the re-opening of the enquiry.
It may be noted that the 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/18.09.2022/03:46 pm
From India, New Delhi
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Your response to my opinion/advice indicates that the PO has stated that he does not want to submit any documents in support of the prosecution case. However, it remains to be seen whether this statement is recorded in the Daily Order Sheet/Record of Enquiry Proceedings and signed by the PO, CSO, DA (if any), and the EO, and what language has been used in the Daily Order Sheet.
With regard to the 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.
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 the charge. However, if there is any pre-recorded statement of a listed witness, then that statement can be taken on record through the production of that witness only, not otherwise.
The next aspect would be to see what reply was initially given by the CSO when the charge sheet was served upon him.
It is not indicated by you as to how much time has elapsed after the order of closure of the 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.
If the CSO makes a request to the EO to submit his Defense Brief in the wake of non-submission of the brief by the PO, that does not amount to the re-opening of the enquiry.
It may be noted that the 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/18.09.2022/03:46 pm
From India, New Delhi
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Thank you for your valuable input. In response to the first point, I am reproducing the exact language used by the PO regarding the non-submission of documents in the current case:
- "EO to PO: PO is advised to attend the inquiry along with the documents required to present the case."
It was noted in the inquiry proceedings dated 25.05.2022 that:
"On 26.04.2022, the PO was advised to attend the inquiry along with the documents to present the case."
EO to PO: "Have you brought the 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 on the next date of the hearing."
It was further noted in the same proceedings that:
"PO is advised to present all documents required to present the case positively on the next date of the hearing."
In the inquiry proceeding dated 05.07.2022, it is noted that:
"PO, via his mail dated 09.06.2022, informed us that the required documents have not been arranged till now, hence requested 10 more days for collecting documents. In view of the PO's request, it has been decided to hold the inquiry on 20.06.2022."
The Presenting Officer further requested a postponement of the inquiry proceedings; therefore, the inquiry was rescheduled for 05.07.2022.
The PO stated in the inquiry proceedings dated 05.07.2022 when asked:
EO to PO: "Do you want to produce any documents in the inquiry proceedings for presenting the case?"
The PO replied:
PO to EO: "No, I don't want to produce any documents in the inquiry proceedings for presenting the case."
It was further recorded in the inquiry proceeding dated 20.07.2022 that:
"EO to PO: Further, you are also requested to produce the documents required to present the case in the inquiry proceedings positively so that the inquiry proceedings may be concluded on the next date of the hearing."
It is also a matter of record in the inquiry proceedings dated 06.08.2022 that the PO submitted:
PO to EO: "Now submission of documents from my side is over, and I do not have 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 number 3: The CSO did not question the authenticity of the photocopies in the inquiry proceedings. The exact language recorded by the EO is as follows:
"It is correct that charges as per the Charge sheet dated 14.01.2016 are based on Management documents, which are marked in the inquiry proceedings as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the inquiry proceedings dated 26.04.2022," and that "It is correct that the imputation of the 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 inquiry proceedings dated 26.04.2022." Due to the 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. However, this was not done, and no witnesses were called to prove even the photocopies.
No documents were supplied to the EO with the charge sheet dated 14.01.2016. He had requested the same twice in 2020 & 2021, but none were provided. The first time the CSO was supplied with the photocopies after six years of serving the CS on 26.04.22, i.e., on the first day of the inquiry. Although the Departmental Inquiry Proceedings are not governed by the Evidence Act, the basic tenets of the Evidence Act cannot be ignored. The photocopies, unless compared with the original in the presence of the notice charged officer, cannot be considered as evidence against him. Also, they are to be proved with the help of a witness, which has also not been done.
In his initial reply, the CSO had denied the allegations.
The EO closed the proceedings on 06.08.22, and to date, the 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 defense in the wake of the non-submission of the brief by the PO as it was apprehended that the Management on its own would reopen the inquiry 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 inquiry proceedings, and it is left to the CSO to challenge it in Court.
There is enough material on record of the inquiry proceedings in the form of defense 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 charges which are to be adduced by the Presenting Officer, and that the Enquiry Officer is a Judge who has to weigh all the evidence submitted by the Presenting Officer on behalf of the Management and the CSO in his defense and then submit his brief. Also, holding departmental proceedings and recording a finding of guilt against any employee and imposing punishment for the 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 settled law that the presenting officer, upon analyzing the documents, both Management Documents and Defense Documents, must arrive at a conclusion that there had been evidence to prove the charges based on materials on record. While doing so, he cannot take into consideration any irrelevant fact, refuse to consider the relevant facts, shift the burden of proof, or reject the relevant defense documents only on the basis of surmises and conjectures. He has to apply his independent mind to all the documents presented in the inquiry proceeding. Unfortunately, in this case, the Presenting Officer has submitted his brief without the application of mind, without submitting any Management Document, and without analyzing the Defense documents.
It is also 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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- "EO to PO: PO is advised to attend the inquiry along with the documents required to present the case."
It was noted in the inquiry proceedings dated 25.05.2022 that:
"On 26.04.2022, the PO was advised to attend the inquiry along with the documents to present the case."
EO to PO: "Have you brought the 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 on the next date of the hearing."
It was further noted in the same proceedings that:
"PO is advised to present all documents required to present the case positively on the next date of the hearing."
In the inquiry proceeding dated 05.07.2022, it is noted that:
"PO, via his mail dated 09.06.2022, informed us that the required documents have not been arranged till now, hence requested 10 more days for collecting documents. In view of the PO's request, it has been decided to hold the inquiry on 20.06.2022."
The Presenting Officer further requested a postponement of the inquiry proceedings; therefore, the inquiry was rescheduled for 05.07.2022.
The PO stated in the inquiry proceedings dated 05.07.2022 when asked:
EO to PO: "Do you want to produce any documents in the inquiry proceedings for presenting the case?"
The PO replied:
PO to EO: "No, I don't want to produce any documents in the inquiry proceedings for presenting the case."
It was further recorded in the inquiry proceeding dated 20.07.2022 that:
"EO to PO: Further, you are also requested to produce the documents required to present the case in the inquiry proceedings positively so that the inquiry proceedings may be concluded on the next date of the hearing."
It is also a matter of record in the inquiry proceedings dated 06.08.2022 that the PO submitted:
PO to EO: "Now submission of documents from my side is over, and I do not have 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 number 3: The CSO did not question the authenticity of the photocopies in the inquiry proceedings. The exact language recorded by the EO is as follows:
"It is correct that charges as per the Charge sheet dated 14.01.2016 are based on Management documents, which are marked in the inquiry proceedings as E-3/1 to E-126 & E-4/1 to 4/107 detailed in the inquiry proceedings dated 26.04.2022," and that "It is correct that the imputation of the 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 inquiry proceedings dated 26.04.2022." Due to the 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. However, this was not done, and no witnesses were called to prove even the photocopies.
No documents were supplied to the EO with the charge sheet dated 14.01.2016. He had requested the same twice in 2020 & 2021, but none were provided. The first time the CSO was supplied with the photocopies after six years of serving the CS on 26.04.22, i.e., on the first day of the inquiry. Although the Departmental Inquiry Proceedings are not governed by the Evidence Act, the basic tenets of the Evidence Act cannot be ignored. The photocopies, unless compared with the original in the presence of the notice charged officer, cannot be considered as evidence against him. Also, they are to be proved with the help of a witness, which has also not been done.
In his initial reply, the CSO had denied the allegations.
The EO closed the proceedings on 06.08.22, and to date, the 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 defense in the wake of the non-submission of the brief by the PO as it was apprehended that the Management on its own would reopen the inquiry 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 inquiry proceedings, and it is left to the CSO to challenge it in Court.
There is enough material on record of the inquiry proceedings in the form of defense 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 charges which are to be adduced by the Presenting Officer, and that the Enquiry Officer is a Judge who has to weigh all the evidence submitted by the Presenting Officer on behalf of the Management and the CSO in his defense and then submit his brief. Also, holding departmental proceedings and recording a finding of guilt against any employee and imposing punishment for the 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 settled law that the presenting officer, upon analyzing the documents, both Management Documents and Defense Documents, must arrive at a conclusion that there had been evidence to prove the charges based on materials on record. While doing so, he cannot take into consideration any irrelevant fact, refuse to consider the relevant facts, shift the burden of proof, or reject the relevant defense documents only on the basis of surmises and conjectures. He has to apply his independent mind to all the documents presented in the inquiry proceeding. Unfortunately, in this case, the Presenting Officer has submitted his brief without the application of mind, without submitting any Management Document, and without analyzing the Defense documents.
It is also 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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