PO's Role During Regular Inquiry - FAQs (Contd.)
What should the PO do if the Inquiry Officer is Biased in either Direction?
Should He Ride with the IO or Steer an Independent Path?
Bias or subjective attitude of the mind is the opposite to the true spirit to be exhibited in a departmental inquiry. 'Bias' is defined as one-sided inclination of mind. A biased man does not hold his opinion as his opinion holds him and, therefore, he cannot have an impartial mind. (Hareram Samant vs. Supdt. of Police Hoogly (1961) FLR 274 (Cal HC)
The Inquiry Officer occupies the central place in a departmental inquiry as its presiding officer and umpire. He is to give the final verdict, after hearing both sides. If he is to bend towards one side of the other, he identifies himself with that particular side and therefore vitiates the cardinal principle of quasi-judicial spirit of the departmental inquiry that 'no man shall be judge in his own cause'.
The PO in this case has to be more alert than normal. He should stick to his role steadfast and discharge his duties and show this on record of the proceedings. No one can interfere with his functions in respect of :
producing listed documents
- examining listed witnesses
- cross examination of defence witnesses
- Submission of the PO's brief.
He has to adjust himself to the situation in which he not may get total cooperation and may have to proceed with a non-cooperative Inquiry Officer. But PO is not to make any value judgement about the attitude of the Inquiry Officer, or Inquiry process. In extreme provocation, PO may definitely refer to the Disciplinary Authority about his difficulties, as this will not make the issue a part of the records of case, as anything stated by the CO in the course of the inquiry will do. In short PO may if driven to the extreme seek administrative remedies, but should avoid bringing issues within the ambit of the inquiry records.
If the P.O. Despite Efforts Could Not Find Valid Evidence for Some of the
Allegations Against the Charged Officer, what is He to do?
The charge sheet may be deficient because of lack of proper initial investigation. The PO can go back to the source material of the allegation and rectify this deficiency. However if the charge sheet is deficient due to omissions in its proper drafting, PO should take it up immediately after his appointment and rectify the errors by getting a corrigendum for the charge sheet issued by the Disciplinary Authority. However if the charge sheet is deficient and lacking evidence for its proof (lacking truth), or is conceived contrary to facts, the PO must communicate this fact in administrative correspondence to the authority responsible for the staff side case and decision for charge sheeting the employee. He should not express his problem within the ambit of the inquiry records. He may proceed with the inquiry and present whatever material is available to him for the verdict of the Inquiry Officer. The PO must use the forum of administrative communications for making transparent the problem he faces. However PO may produce the Investigating Officer as management witness and ask him to testify how the investigation was conducted and what the findings are. This will help to fix responsibility or otherwise on the investigating officer for erroneous investigation and consequent inconvenience to number of persons.
What the P.O. Should Do, if He is Deemed a Material Witness for the Defence and wants to
Act as Defence Witness? Can he Refuse to Act as P.O?
No officer should bargain as to what work or duties are to be allotted to him. If the PO is a material witness for the defence, it is for the charged officer to make necessary representations to the Disciplinary Authority giving reasons. However an officer is to maintain emotional control and mental equilibrium in the discharge of his duties. If there are grounds for the PO to consider himself materially interested in the Charged Officer or in the transactions covering the disciplinary case, it is his duty to disclose these facts to the executive authority who recommended his name for appointment as Presenting Officer and to the Disciplinary Authority, who may consider the facts and effect necessary change of the Presenting Officer if so warranted.
What Guidelines to Follow in Cross Examination of the Defence Witness?
To effectively cross-examine the defence witnesses, the PO must have a total understanding of the material information relating to the disciplinary case. In the earlier part I advised that PO should prepare and keep for his own reference and understanding a factual history (or Diary) of the transactions covering the allegations relating to the charge sheet. Information is strength and knowledge is power. And the person having better information and knowledge on a subject can outperform others. This should be basis of preparedness for both a PO and a Defence Assisting Officer.
When you have built the management case with verified facts. You had occasion to update it with the stand taken by the charged office as revealed in the reply submitted by him to the charge sheet. At this occasion you also can assess the defence case and make a note of the strength and weakness therein. In totality you have an information pool, which an able PO can refresh in is memory or refer quickly from his records.
With this background the PO carefully follows the examination of the defence witnesses during the examination in chief by the charged officer. He will skip the merely procedural information like the name of the witness or his background etc. and note only the material evidence he gives in his disposition having an impact on the allegations in the charge sheet. To the extent his testimony is in conflict with the management case, the PO should seek to test the veracity of this portion, by putting testing supplementary questions. When the PO has documentary evidence contradicting the testimony of the defence witness, he can confront the witness in his cross-examination by producing the documentary source. For this purpose the PO may file additional documents in the course of the inquiry, though this should be done carefully, as the CO may seek time and opportunity to locate fresh records for the rebuttal of the additional document filed by the PO.
Though the Indian Evidence Act is not applicable to Departmental Inquiry the provisions of the Act relating to examination of witnesses contained in Sections 135 to 166 will be extremely useful for the P.O. or a DAO to comprehend and assimilate in conducting examination/cross examination of witnesses. These sections are dealt with in detail in Parts -5 and 6 of Indian Evidence Act, in the project literature "knowledge of Law Essential for the Common Citizen". Information on Questions that can be asked and that should not be asked in cross-examination is discussed in the Role Profile of the Inquiry Officer. Please also refer to detailed guidelines given in the page titled How to Examine/Cross-examine Witnesses.
How to Prepare the Brief of the PO.
The written brief explains the case of the management and explains how the PO deems the allegations in the charge sheet are deemed to have been proved. This task is made much simple and can be easily done, if the charged officer compiles the case history (also called Case Dairy) at the beginning and updates the same, as evidences are unfolded in the inquiry.
The brief should be simple and quickly readable. It is customary for the PO to deal with the disciplinary case listing the individual imputations one after the other and explain for each the management evidences that stand to prove the imputation. PO will explain the evidences presented by him. He may also submit the deficiencies in the defence case as rebutted and contradicted by him. If the charged officer had explained "properly" any particular allegation, the PO, need not commit himself that such an allegation is not proved. He must as part of ethics keep silent on points which are not in consonance with the management case, as these are for the I.O., to handle. PO in no case should turn to be an advocate for the charged officer. However it will not be unethical for the PO to congratulate the charged officer/DAO after the disciplinary case is over, and if the CO stands exonerated. This will be a good convention, which splits the border between personal involvement and performance of duty.
How the PO is to react if the charge officer is able to establishes that he has
been charge-sheeted on totally wrong assumptions and wrong premises.
The PO does not function on personal beliefs and personal convictions, but as per a structured system. Some investigation is conducted and on the basis a charge sheet has been served. An inquiry is ordered to arrive at the truth about the allegations. The PO enters the scene in the middle and takes charge on the basis of the previous evolution of the disciplinary case. He need not appreciate the defence evidence and react to the same. He will only hold the management evidence inherited by him. He will not contend or accept his defeat and will submit his brief summarizing the management evidences and contending that the imputations are proved as per the same.
However this is a redundant or unproductive action and if the charge sheet is basically erroneous, it has resulted in wastage of resources and avoidable inconvenience to the charged officer. Who is the person at fault for this, who may be pulled up later after the disciplinary case is closed and a review is conducted.
The investigating officer can be considered to have not done his job properly and submitted erroneous grounds to the management. In PNB no one takes seriously such a development or is questioned, but in respect of cases investigated by CBI, the investigating officer may have to explain the situation, as this brings disrepute to the Institution of the CBI. It is customary in such circumstances for the PO to call the Investigating Officer as the last management witness and give him an opportunity to explain how the investigation was conducted. Normally the Investigating Officer will not be cross-examined by the CO. It is customary for CBI to repatriate officers who conduct defective investigations back to their parent department. This is as per my personal acquaintance in two specific cases, where the investigation Report of the CBI was proved contrary to facts with reference to the allegations made out.
Proper and objective investigation is the real strength of a charge sheet. It is necessary at this stage itself that the investigating officer gives an opportunity to the accused persons and takes into account his explanation of the material appearing against him and also considers the same on merits. If this is properly followed, then charge sheets, which can be classified, as 'dirty' (not true bordering exhibited malice towards the charged officer) will not occasion.
What is a Leading Question? Why Leading Questions should not be
asked in Direct Examination of Witnesses?
As per Sec.141 of The Indian Evidence Act, 1872,"Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question". Such question is normally not objected in examination in chief as to matters, which are introductory or undisputed, which have already been sufficiently proved. Leading questions can be freely asked in cross-examination. The Inquiry Authority can ask leading questions. Searching cross-examination by Inquiry Authority by means of leading questions cannot be objected.
There are no specific provisions in the DA regulations relating to leading questions. The Indian Evidenced Act is not applicable in the conduct of Departmental Inquiries. Though the technical legality of the Act is not applicable, the spirit of the Act definitely is applicable. The inquiry officer if he permits the PO to put leading questions should extend the same facility to the CO also. However in PNB so many departmental inquiries are conducted and the bank cannot claim totally that we do not know any law. It is better that leading questions are not put in direct examination of witness by both parties.
The following example of an examination totally through leading questions will illustrate, how this can be misused:
PO- (prosecuting officer): Do you agree that the accused stayed in a hotel room on such and day and spent the night there.
Yes or No?
Witness: Yes I agree.
PO - And I say that a woman stayed with him in the room. Say yes or no?
Witness - Yes. A woman stayed with him
PO - And I say the woman is not his wife. Say yes or no?
Witness: No the woman is not his wife
PO - I also say it is not his mother, sister or daughter.
Witness - No it is not his mother, sister or daughter.
PO - That is all. No more questions.
The accused was shocked to hear this testimony. He engaged no advocate to represent him. As he is shocked he lost composure to cross-examine the witness. When the witness was about to leave the witness stand, the trial judge out of curiosity asked him one question.
Judge - Who then is the woman and what is her likely age?
To this question the answer came cool from the witness- The woman is his grand mother and her age is 75.