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Ingredients of a Valid Charge Sheet
What is Charge Sheet?
The concept of charge sheet is derived from criminal law. Under the criminal procedure code the charges are framed by the Magistrate. In case of investigations made by the police, in terms of Sec.173 of Code of Criminal Procedure the officer in-charge of the police station shall forward a report in the form prescribed to the Magistrate empowered to take cognisance of the offence. The magistrate can discharge the accused person, if on consideration of the document, the charge is deemed groundless. Otherwise the magistrate is to frame the charge. In disciplinary inquiries in public and private employment such a charge is framed by the disciplinary authority, if he thinks fit to do so.
Basic Ingredients of a Valid Charge Sheet
The charge sheet pin-points the lapses of the employee. It is a document of indictment. The employee is called upon to explain properly or else the charges are deemed proved. But then the employee is not going to oblige and accept the charges. Issuing a charge sheet therefore calls upon the inherent obligation to prove the facts mentioned therein. It is easier to make allegations, but not so to substantiate the same, unless sufficient home-work is done and proper care is taken in the expression of the allegations. It is possible to prove the charges, if the facts are correctly mentioned and supporting material by way of proof is readily made available. The employee could have in fact committed lapses bordering serious misconduct, and there could be material in support of the same. But it needs special skill to understand the exact lapses of the employee and state the same in precise terms, as is seen in the material placed as evidence. An objectivity of the mind, free from malice and bias towards the charged officer is needed to draft a proper charge sheet.
The charges should be specific and should not be expressed in generic or vague terms. Suspicions, assumptions or surmises expressed cannot constitute grounds for awarding punishment to the employee. What are needed are categorical statements. There is to be material information. Taken together, these material facts should convey an act or acts of misbehaviour and these have to be conclusively established through documents or witnesses. The documentation of the charge sheet, has, therefore, to be expressed as the initiator or pre-enquiry presentation of the allegations and thus to serve as the prime or basic record in a disciplinary case. There has to be an inherent harmony between the allegations expressed and the supporting material produced.
Charge of misconduct should not be vague. If it is so, it can be said rules of natural justice have not been followed. If the charge sheet is vague there is no reasonable opportunity to show cause. The charge sheet must be specific and must set out all the necessary particulars, irrespective of the fact, whether in view of the previous preliminary inquiry the delinquent officer knows about the charges.
What is meant by vague? Vague can be considered as the antonym of the word 'definite'. If the ground is incapable of being understood or defined with sufficient clarity, it can be called vague.
Whether Vagueness of the Charge will Vitiate the Inquiry?
The government servants have got protection under Article 311 of the Constitution of India and their services can only be terminated after giving them reasonable opportunity to show cause. The reasonable opportunity implies that the charge sheet should not be vague. If the services of an employee are terminated in disregard to provisions of Article 311 then the dismissal is wholly void and the enquiry is vitiated.
Even when the employee have got no constitutional protection, the vagueness in the expression of the charge may prejudice the employee and disable him from properly understanding the implications and submitting his defence. If this happens the enquiry is vitiated.
There can be no hasty action. The competent authority should first order an investigation and call for the facts and then only he must issue a charge sheet. But if he were to issue a charge sheet, even before a regular investigation was done, one will find it difficult to draft a charge sheet setting forth precisely the lapses of the officer.
Drafting of Charge Sheet - Constituents of Charge
Time and place of the misconduct. Time and place are sometimes constituent of the charge itself.(e.g. riotous behaviour within the office premises and during office hours). Even when the time and place do not constitute an essential part of the charge, still they should be mentioned, so that the incident may be specific and concerned employee may be able to meet the case.
- Each incident constituting misconduct should be stated as a separate charge.
- The specific name of the misconduct should be mentioned. This is done by referring to the specific provision of the Code of Conduct Regulation, that has been violated.
- In case of habitual committal of the misconduct is made, the word 'habitual' should be mentioned. The past record showing the habit should also be given.
- When the time of the incident involving the misconduct is material and is given, the employer should always mentioned the word 'about' or 'around' i.e. 'about 2.00 pm' or 'around 2.00 PM'. Even if it is proved that the employee did not commit the misconduct at 2.00 PM, and it had taken place at 2.10 or 2.15, the use of the word will save the situation. On account of the difficulty of being very precise the charge is technically defective if either of the words mentioned is not used.
- Charge sheet should contain facts instead of mere inference or judgement from facts. Mere use of words like "insolence" or "unsatisfactory work", "negligence", "misbehaviour or indiscipline" cannot constitute a misconduct, unless supported by information about material incidents corroborating the words used.
- The time allowed for submission of reply by the delinquent officer and a statement that if no reply is received within that time, it will be presumed that the delinquent officer has nothing to reply and that he has admitted the charges and further action on the charge sheet will follow accordingly. However despite this statement, if no reply is received, an oral inquiry should be conducted, after expiry of time allowed for the reply.
The Central Vigilance Commission has stressed the importance of documentation of the charge sheets in precise and clear terms and has also pin-pointed the omissions in this important formality observed frequently. The contents of their circular letter No.3(v)/99/8 Dated the 5th October,1999 is appended hereunder for an understanding of the importance of this prime formality.
Defective Framing of Charge Sheet - Adverse Effects
(Observations of CVC about Inadequate skill in Drafting Charge Sheets)
Inadequate skill in drafting the charge-sheet is one of the reasons which help the charged officials to get away with lapses/misconduct committed by them. Many cases fail before the Courts of Law just because of the defective framing of charge-sheets. It has been observed by the Commission that the charge-sheets are sometimes framed in a very general way and the existing practice with regard to framing of charges and imputations vary widely.
Sometimes the charge itself is framed in a very general way, only pointing out that the official concerned has acted in an unbecoming manner or has shown lack of devotion to duty or has acted without integrity. The real issues, in such circumstances, are to be found in the statement of imputations. It has also been observed by the Commission that the organisations/Ministries etc. while framing the charge sheets list serious irregularities/charges in the imputations but do not mention the same in the articles of charge.
- Many a times the charges are not framed in accordance with the advice given by the Commission, thereby diluting the central issues.
- Rule 14(3)(i) of the CCS (CCA) Rules stipulates " the substance of the imputations of misconduct or misbehaviour into distinct articles of charge" should be drawn up by the Disciplinary Authority whenever it is proposed to hold an enquiry against a Government servant. This would mean that no charge can be proper or complete without including therein elements of the main content of the allegations/imputations. Therefore, the spirit of all Conduct, Discipline & Appeal Rules imply that there should be a specific finding on each allegation made against the officer. At the end, the Inquiry Officer must then apply his mind to come to a conclusion as to whether the charge as a whole has been proved wholly, partially or not at all.
- It has to be understood that the statement of imputations/ allegations annexed are supplementary/supportive material to the charge sheet; they are details of facts/evidence to support the charges made, and should contain names of witnesses/documents in support of the charges. That is, the statement of imputations is to make the basis of the charge, allegation-wise, precise and specific and should include details of what exactly each witness/document is going to prove regarding every charge.
- Each charge should also have a separate statement of imputations of misbehaviour/misconduct. The common failing of listing out one long statement of misconduct/misbehaviour ought to be avoided.
The Commission has also issued instructions earlier which are reproduced in Para 14.1 to 14.3 of Chapter X of Vigilance Manual Part I stipulating that the articles of charge should be framed with great care. Broad guidelines as to how the articles of charge should be framed have also been indicated therein. Similarly, the common mistakes which have been noticed by the Commission in framing the charge-sheet have also been incorporated in Para 12.1.3 of the special Chapter on Vigilance Management in Banks and Para 20.1.3 in the Special Chapter in PSEs. These are reproduced below:
"Special care has to be taken while drafting a charge-sheet. A charge of lack of devotion to duty or integrity or unbecoming conduct should be clearly spelt out and summarised in the Articles of charge. It should be remembered that ultimately the Inquiry Officer would be required to give his specific findings only on the Articles as they appear in the charge-sheet. The Courts have struck down charge-sheets on account of the charges framed being general or vague (S.K. Raheman Vs. State of Orissa 60 CLT 419.) If the charge is that the employee acted out of an ulterior motive that motive must be specified (Uttar Pradesh Vs. Salig Ram AIR 1960 All 543).
Equally importantly, while drawing a charge sheet, special care should be taken in the use of language to ensure that the guilt of the charged official is not pre-judged or pronounced upon in categorical terms in advance.
(Meena Jahan Vs. Deputy Director, Tourism 1974 2SLR 466 Cal).
However, the statement merely of a hypothetical or tentative conclusion of guilt in the charge, will not vitiate the charge sheet
(Dinabandhu Rath Vs. State of Orissa AIR 1960 Orissa 26 cf. Also Powari Tea Estate Vs. Barkataki (M.K.) 1965 Lab LJ 102)".
Notwithstanding the extant instructions/guidelines many organisations continue to make avoidable mistakes while framing the charge sheets. Therefore, it is reiterated that the extant instructions on the subject as stated in the aforesaid paragraphs may be followed carefully while drafting the charge sheet, in order to avoid subsequent difficulties. The CVOs of the organisations/Ministries etc. should ensure that these instructions are implemented scrupulously.
In addition as already summarised above, an IO is required to give his finding in respect of each article of charge and reasons thereof. As the articles of charge are definite and distinct substance of the statement of imputations of misconduct or misbehaviour, the findings on each articles of charge have to be inter-alia based on statement of imputations. Therefore, the Inquiry Officers are required to record their findings in respect of each allegation framed in support of an article of charge in order to ensure that inquiry reports do not suffer due to deficiencies.
[Source Circular instructions No.18 of CVC bearing office No. 3(v)/99/8 dated 5th October, 1999
on the subject "Drafting of charge- sheet"]
Drawing List of Lapses from the Report of Investigation
Various lapses of the delinquent officer listed in the Report of the Investigation should be grouped category-wise and they should then be graded according to their severity. Discretion should be exercised whether to include minor lapses, along with more serious one, as it puts a severe load on the inquiry proceedings, by way of producing several dozens of documents and witnesses from both sides. When there are a number of lapses of the same category, it may be sufficient to make a general statement and give only a few salient cases as examples, instead of reproducing all such individual instances. If there are large number of minor lapses, it may be advisable to issue a separate charge sheet under minor penalty procedure, so that the core items of irregularities are only included in a compact charge sheet issued for major penalty, for which alone oral inquiry is to be conducted.
It is advisable not to group different types of lapses in a single charge sheet, i.e. lapses with vigilance angle, administrative misconduct and technical or procedural lapses (including negligence).
Similarly it is wrong to issue a consolidated charge sheet covering the entire tenure of an officer spread over 3 to 5 years at a branch. Does it mean that the watch dog was asleep for all three years or more, and wake up only leisurely, for a one-time vigilant action, and trying to clear all the old arrears, on a wholesale turnover stretching half-a-decade?
Other Frequently Observed Deficiencies in Issuing Charge Sheets
Age-old lapses should not crop up at the time of the retirement of the officer, for a last minute encounter. These are in bad taste, and reflect the Disciplinary Authority, himself not adhering to discipline. When there is inordinate delay in taking action, it leads to the logical surmise that the management has condoned the misconduct, and dropped the case already.
Charge sheet should not be issued without holding the supporting evidence on hand. It is violative of the provisions of the DA Regulation. After issuing the charge sheet, the presenting officer should not be asked to gather evidence, but to present the evidence already gathered. It is not the function of the presenting officer to search for and locate evidence, which would imply that the charge sheet was issued originally without supporting evidence.
For one and the same set of transactions different officers should not be charge sheeted separately at different occasions, but such charge sheets should be drafted and issued as a single exercise, to be covered by one single common proceeding.
The Branch Manager is responsible for the work and integrity of subordinate officers reporting to him at the branch. Primary responsibility for the lapses of the group, may stick to the Branch Manager. But however in respect of more serious lapses, the Branch Manager should not be singled out, and charge sheeted exclusively. When there is a role for a second/junior officer, he also must be made accountable.
In fact from the study of the wording and expression of statements in a charge sheet, it can be conclusively drawn out, if the charge sheet represents a bonafide disciplinary action initiated, or an exercise in personal vindictiveness.