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[Reproduced from Publication of CVC]
DISCIPLINARY PROCEEDINGS - II Oral Enquiry (CHAPTER XI)
(Page: 8 of 10) - Cross-examination (Paragraph 10)
In departmental proceedings the rules of evidence laid down in the Evidence Act are, strictly speaking, not applicable and the Inquiry Officer, the Presenting Officer and the charged public servant are not expected to act like judges or lawyers. The right of the Government servant to cross-examine a witness who has given evidence against him in a departmental proceeding is, however, a safeguard implicit in the reasonable opportunity to be given to him under Article 311 (2).
The scope or mode of cross-examination in relation to the departmental enquiries have not been clearly set out anywhere. But there is no other variety of cross-examination except that envisaged under the Evidence Act. It follows, therefore, that the cross-examination in departmental enquiries should, as far as possible, conform to the accepted principles of cross-examination under the Evidence Act.
Cross-examination of a witness is the most efficacious method of discovering the truth and exposing false-hood. During the examination-in-chief the witness may say things favourable to the party on whose behalf he tenders evidence and may deliberately conceal facts which may constitute part of the opponent's case. The art of cross-examination lies in interrogating witness in a manner which would bring out the concealed truth.
Usually considerable latitude is allowed in cross-examination. It is not limited to matters upon which the witness has already been examined-in-chief, but may extend to the whole case. The Inquiry Officer may not ordinarily interfere with the discretion of the cross-examiner in putting questions to the witness. However, a witness summoned merely to produce a document or a witness whose examination has been stopped by the Inquiry Officer before any material question has been put is not liable to cross-examination. It is also not permissible to put a question on the assumption that a fact was already proved. A question about any matter which the witness had no opportunity to know or on which he is not competent to speak may be disallowed. The Inquiry Officer may also disallow question if the cross-examination is of inordinate length or oppressive or if a question is irrelevant. It is the duty of the Inquiry Officer to see that the witness understands the question properly before giving an answer and of protecting him against any unfair treatment.
Re-examination of witness (Paragraph 11)
After cross-examination of witness by or on behalf of the Government servant, the Presenting Officer will be entitled to re-examine the witness on any points on which he has been cross-examined but not on any new matter without the leave of the Inquiring Authority. If the Presenting Officer has been allowed to re-examine a witness on any new matter not already covered by the earlier examiner/cross-examination, cross-examination on such new matter covered by the re-examination, may be allowed.
Examination of a witness by the Inquiry Officer (Paragraph 12)
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.
Record of evidence (Paragraph 13)
A typist will be deputed by the Inquiry Officer to type the depositions of the witnesses to the dictation of the Inquiry Officer.
The depositions of each witness will be taken down on a separate sheet of paper at the head of which will be entered the number of the case, the name of the witness and sufficient information as to his age, percentage and
calling, etc., to identify him.
The depositions will generally be recorded as narration but on certain points it may be necessary to record the questions and answers in verbatim.
As evidence of each witness is completed, the Inquiry Officer will read the depositions, as typed, to the witness in the presence of the Government servant and/or legal practitioner or the Government servant assisting the delinquent officer in his defence. Verbal mistakes in the typed depositions, if any, will be corrected in their presence. However, if the witness denies the correctness of any part of the record, the Inquiry Officer may, instead of correcting the evidence, record the objection of the witness. The Inquiry Officer will record and sign the following certificate at the end of the depositions of each witness:-
"Read over the witness in the presence of the charged officer and admitted correct/objection of witness recorded".
The witness will be asked to sign every page of the depositions. The charged officer, when he examines himself as the defence witness, should also be required to sign his depositions. If a witness refuses to sign the deposition, the Inquiry Officer will record this fact and append his signature. The documents exhibited and the depositions of witness will be kept in separate folders.
If a witness deposes in a language other than English but the depositions are recorded in English, a translation in the language in which the witness deposed should be read to the witness by the Inquiry Officer. The Inquiry Officer will also record a certificate that the depositions were translated and explained to the witness in the language in which the witness deposed.
Copies of the depositions will be made available at the close of the inquiry each day to the Presenting Officer as well as to the delinquent officer.
Appearance of officers of Audit/Accounts Departments
before the Inquiry Officer (Paragraph 14)
It will not ordinarily be necessary to require the appearance of officials of the Audit/Accounts Office before the Inquiry Officer to prove the figures of salaries/allowances of a Government servant furnished over the signature of a responsible officer of the Audit/Accounts Department. No particular officer of the Audit/Accounts Office would be in a position to prove the correctness of numerous entries in a register made by various persons over a length of period.Figure of salaries/allowances will generally be relevant in cases where the charge relates to disproportionate assets. In such cases the Investigating Officer would have satisfied himself about the correctness of the figures collected by him from Audit/Accounts Office and would have got the figure inspected by the Government servant. Cases in which the Government servant may question the correctness of the figures furnished by the Audit/Accounts Officer will thus be rare. In any case where the Government servant does so, he will also indicate the figures which are not acceptable to him which would be got verified again by the Presenting Officer from the Audit/Accounts Office. In any case where the figures of salary and allowances are disputed, the dispute cannot be settled by merely requiring the presence of the Accounts/Audit Officer. Therefore, normally an authenticated statement of pay and allowances furnished by the Audit/Accounts Officer concerned should be produced before the Inquiry Authority as sufficient proof of the correct amount drawn as salary and allowances by the Government servant.
Admission of additional evidence on behalf of
Disciplinary Authority (Paragraph 15)
Before the close of the case on behalf of the disciplinary authority, the Inquiry Officer may, in his discretion, allow the presenting Officer to produce new oral or documentary evidence not included in the lists of documents and witnesses given to the Government servant with the articles of charge. In such a case the Government servant will be entitled to have, if, he demands it, a copy of the list of further documents proposed to be produced and an adjournment of the inquiry for three clear days before the production of such new evidence exclusive of the date of adjournment and the date to which the enquiry is adjourned. The Inquiry Officer will also give the Government servant an opportunity of inspecting such documents before they are taken on the record.
The Inquiry Officer may also, at his discretion, permit the Presenting Officer, to recall and re-examine any witness. In such a case the Government servant will be entitled to cross-examine such witness again on any point on which that witness has been re-examined.
The production of further evidence and/or re-examination of a witness will not be permitted to fill up any gap in the evidence but only when there is an inherent lacuna or defect in the evidence which had been produced originally. The Presenting Officer should, therefore, when he finds that there is any lacuna or defect in the evidence and that fresh evidence to remove the defect or lacuna is available or that the position can be clarified by recalling a witness, make an application to the Inquiry officer to the effect.
Statement of defence (Paragraph 16)
After the closure of the case for the disciplinary Authority, the InquiryingAuthority will ask the Government servant to state his defence orally or in writing, as he may prefer. If the defence is made orally, it will be recorded and the Government servant will be required to sign the record. If he submits his defence in writing, every page of it should be signed by him. In either case a copy of the statement of defence will be given to the Presenting Officer in the absence of the delinquent officer, his Assisting Officer can state the defence case, if he holds an authorisation to this effect from the delinquent officer.
Rule 14 (16) of the C.C.A. Rules, 1965 provides that "when the case for the disciplinary authority is closed, the Government servant shall be required to state his defence" In regard to the use of the word, "shall" in Sub- Rule (16), a question arises whether the Inquiring Authority can waive the provision of this sub-rule and proceed with the case even though the delinquent officer has not submitted his defence. A reasonable interpretation of this sub-rule is that the delinquent Government servant shall be formally called upon to state his defence, but it is up to him to make or not to make a statement and the Inquiring Authority obviously cannot compel him to state his defence, if he does not wish to do so.
Production of evidence on behalf of the Government servant (Paragraph 17)
The defence witnesses summoned by the Inquiry Officer will then be produced on his behalf one by one. The documents produced by the defence will be numbered Ex. D.1, Ex. D.2 and so on and the witnesses who give oral evidence will be numbered as D.W. 1, D.W. 2 and so on.
Each witness will be examined by the Government servant or on his behalf by the legal practitioner or by the Government servant assisting him in his defence, as the case may be. The witness may be cross-examined by the Presenting Officer and may then be re-examined by or on behalf of the Government servant on any points on which the witness has been cross examined, but not on any new matter without the leave of the Inquiry Officer. If the Presenting Officer is unable to attend the hearing for any reason, another officer may be deputed for the purpose of cross-examination. Intimation about such officer should be sent to the Inquiry Officer in advance, After the examination and cross-examination and re-examination of a witness, the Inquiry Officer may also put such questions to him as he may think fit. In that event the witness may be re-examined by the Government servant or the asserting Government servant and cross-examined by or on behalf of the Presenting Officer with the leave of the Inquiry officer on matters covered by the questions put by the Inquiry Officer.
The Government servant may offer himself as his own witness. In that case he may allow himself to be examined by his legal counsel or the Government servant assisting him in his defence, as the case may be, or he may make a statement as a witness. In such a case the Government servant will be liable to cross-examination by or on behalf of the Presenting Officer and examination by the Inquiring Authority in the same way as other witnesses. If the Government servant does not offer himself as his own witness, this fact may not be relied upon by the Presenting Officer to deduce there from the guilt of the accused in any way.
The defence witnesses will be examined, cross-examined and re-examined in the same manner as the witnesses produced on behalf of the disciplinary authority and a record of their depositions will be made and signed and made available to the parties concerned in the same way as described in paragraphs 9 to 13 above.
If in any particular hearing, the accused officer is unable to come for any reason, his Assisting Officer can proceed with the case if he has authorisation to this effect from the accused officer. Similarly, the Assisting Officer can submit the defence of the delinquent officer contemplated in Rule 14 (16) of the CCS (CCA) Rules, 1965, if he holds authorisation to this effect from the delinquent officer.
If the delinquent officer wants to examine the Presenting Officer as a defence witness, there can be no objection in principle in accepting the request of the delinquent officer. Such a witness cannot, of course, function simultaneously as a Presenting Officer while deposing as a defence witness. But there can be no objection to his arguing the case at a later stage on behalf of the disciplinary authority. When the Presenting Officer is appearing as a defence witness, another officer can be appointed under Rule 14 (14) of the CCS (CCA) Rules, 1965 to cross-examine him as a defence witness
Production of fresh witness on behalf of the
Government servant (Paragraph 18)
Before the close of the case on his behalf, the Government servant may request for permission to produce a witness who was not included in the list of witnesses furnished by him vide para 3.1 (ii) above for tendering further oral evidence or producing any further documents and the Inquiry Officer may permit the production of such new witness if, in the opinion of the Inquiry Officer, it is necessary in the interest of justice. As stated in para 15 in relation to the production of fresh evidence on behalf of the disciplinary authority, such new witness on behalf of the Government servant will be permitted only if there is an inherent lacuna or defect in the evidence which had been produced originally and not to fill any gap in the evidence.
Examination of the Government servant by the Inquiry Officer
after his case is closed (Paragraph 19)
It has already been indicated in para 17.3 that the Government servant can, if he so chooses, offer himself as a witness. If he is examined as a witness, it is for the Inquiry Officer to decide whether he should question him generally for the purpose of enabling him to explain any circumstances appearing in the evidence against him. But if the Government servant does not offer himself as a witness, the Inquiry Officer must question him generally for the purpose stated above. It may be noted that the Presenting Officer would not be entitledto examine the official at this stage.