|
|
Know Your
Service Law Articles on Disciplinary Proceedings |
|
= = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = Note: In
this website the pronoun “he” and its derivates are used of any person whether
male or female; and, unless the contrary appears from the context, words
importing the singular number include the plural number, and words importing
the plural number include the singular number. This article is published
subject to Legal Disclaimer appearing
at the end of this page. = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = Framing of Charge-sheet for a Departmental
Inquiry The concept of charge-sheet is derived from criminal law. A charge may be understood as a precise formulation of the
specific accusation against a person called accused. Thus, a charge-sheet is a document of indictment. It
pin-points the lapses of an accused. An accused becomes a convict or guilty only when a charge he is accused of is proved. However,
there is a basic difference in criminal and departmental proceedings as
regards the standard of proof required to establish a charge. It is a general
rule that in criminal cases, the standard is ‘proof beyond doubt’; whereas,
in departmental inquiry, it is ‘preponderance of probability’ that
establishes a charge. In disciplinary
proceedings, an allegation of misconduct (i.e. violation of conduct rules) of
an employee results in issuance of a charge-sheet. As what is alleged is
required to be proved (if it is denied), it should be drafted with due care
and state the violation in precise terms. It should be done by carefully
examining the material that will be placed as evidence during the inquiry. It is easier
to make allegations, but difficult to establish the charges. Issuing a
charge-sheet, therefore, implies the obligation to prove the allegations
made. The possibility of proving the charges depends heavily on the efficacy
of the facts stated and availability of the material supporting the charges. The following
points may be borne in mind before issuing a charge-sheet: 1. Object of
issuing a charge-sheet: The object of
issuing a charge-sheet is to give the delinquent employee an opportunity to
show cause against the action proposed to be taken in respect of the
misconduct alleged against him, so that he knows the nature of misconduct
with which he is charged and has a reasonable opportunity to defend himself. 2. Authority
Competent to issue the charge-sheet: It
should be issued by the Disciplinary Authority. 3. When to issue
the charge-sheet: Whenever the
Disciplinary Authority is of the opinion that there are grounds for inquiring
into the truth of any imputation of misconduct or misbehaviour against an
employee. 4. Essentials of
a charge-sheet: This is very important and
should be observed scrupulously. A charge-sheet should contain (i) the
substance of the imputations of misconduct or misbehaviour drawn 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
should contain – (a) a statement of all relevant facts including any
admission or confession made by the employee; and (b) a list of documents by
which, and list of witnesses by whom, the articles of charge are proposed to
be sustained. (Note: In case of private sector establishments, the list of
documents and witnesses need not be supplied along with the charge-sheet,
unless the rules so prescribe. It is a must only in case of Government
servants and those governed under similar rules.) The following
points may be borne in mind while framing a charge: 1. Name the
misconduct by reference to the specific rule:
The Conduct rules contain provisions, the violation of which attracts
disciplinary action against the delinquent employee. It is, therefore, necessary
that a charge should spell-out the particular rule so that the charged
employee would understand what exactly the violated Conduct Rule is, and have
the opportunity to meet the charge and to defend himself. 2. Draw each
incident of misconduct as a separate charge:
Even if two or more incidents violate a single rule, drawing them separately
as distinct charges enhances clarity and easier to prosecute. So, draw each
incident of misconduct as a separate charge. 3. State time and
place of misconduct: The delinquent
employee is entitled to know not only what his misconduct is, but also where
and when it was committed. Failure to mention these details in a charge may
derail an inquiry. However, as regards stating of time, if the incident
occurred at say 2:30 p.m., it is generally stated as ‘about’ or ‘around’ 2:30
p.m. and not ‘at’ 2:30 p.m. By this, even if it is proved that the employee
committed the misconduct at 2:15 or 2:45 p.m., the use of the word ‘about’ or
‘around’ will save the situation. Though the rigours of Evidence Act are not
applicable to Disciplinary Proceedings as strictly as to a criminal trial,
there are abundant cases of delinquent employees trying their best to drag
the issues on technical grounds (of course, ably guided by their advocates!).
This may be checked by drafting the charges effectively. 4. State facts,
without being judgmental: As stated at the
outset, a charge is an allegation required to be either admitted by the
delinquent employee or proved against him during the inquiry on the basis
documentary evidence and/ or witnesses. An allegation is not a conclusion of
guilt. As such, while stating facts pertaining to a charge, care should be
taken that the Disciplinary Authority has NOT already come to the conclusion
or formed an opinion that the misconduct has been proved. 5. Charge should
not be vague: A charge should contain full
particulars of misconduct including the date, time and place of misconduct.
The available material should convey the lapses on the part of the delinquent
employee, and should be able to establish the charges through documents and/
or witnesses. The charge should contain all material facts, irrespective of
whether or not the employee is aware of them. The language of the charge must
be clear, precise, and unambiguous. If the charge does not pass this test, it
is vague. In other words, what is not ‘definite’ is ‘vague’. (Suspicions and
assumptions, however strong, cannot be the basis for a valid charge; though
they may be argued during inquiry.) 6. If the
misconduct is ‘habitual’, state the past instances: Simply stating that the employee’s misconduct (e.g.
remaining absent from duty, without proper application for leave) is
‘habitual’ makes the charge vague. Such a charge should necessarily contain particulars
of previous absences from duty with the action taken in the past (such as
memos issued) by the Disciplinary Authority. A Disciplinary Authority cannot
sleep over the issue for long and wake up to issue a charge-sheet stating
that the employee’s misconduct is ‘habitual’, without furnishing necessary
details. 7. State the
time-limit for the delinquent to reply to the charges: An inquiry is necessary only of charges denied or not
admitted by the delinquent employee. If there is no time-limit, the employee
will get an indefinite time to respond, frustrating the very process of
holding inquiry. The charge-sheet should, therefore, specify the time-limit
(normally fifteen days) and state that, if he makes no representation within
the time specified, it will be presumed that he
has nothing to reply and that he has admitted the charges and further action
on the charges will follow. However despite this statement, if no reply is
received (or if received, but charges denied), an inquiry should be held, after
expiry of time allowed for the reply by following the due process explained
in the article, ‘Importance of fair Disciplinary Proceedings’ available at Disciplinary
Proceedings. <Back> = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = About the Author: K.
Dejappa is an advocate & legal consultant, writer, and speaker currently
based in Udupi (Karnataka). Use the contact
info to reach him with details of your requirements for workshops,
seminars or any other forum on the subject discussed in this article or other
issues on service law. <Back> = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = |
|
|
Legal Disclaimer: No material
or information in this Site should be construed as being a conclusive legal
advice as the same are general in nature. No responsibility will be accepted
for any personal decision taken by anyone on the basis of information
provided herein. |
|
|
= = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = Copyright ©
2013 K. DEJAPPA. All Rights Reserved Adarsham A name that stands for what it commits Questions or
comments? Get in touch with us at: = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
= = = = = = = = = = |
|
