Inquiry officer
Querist :
Anonymous
(Querist) 19 April 2023
This query is : Resolved
I am conducting a departmental inquiry and I am the Inquiry Officer
I have finished the preliminary inquiry and gave 15 days time for the charged Officer to appoint a DA as per his request. As he couldn't find a DA another 15 days were given in which he gave a written statement of appointing his DA.
The date for the hearing was fixed but his didn't turn out stating he didn't recive the intimation, another intimation was sent for hearing DA said his controlling Officer wasn't allowing him to come for the hearing.
My question is
What is the number of occasion a DA can refuse to attended the hearing?
What is the no of occasion the charged Officer make a accuse that my DA is not available?
Is there any rule under CCS rule 14?
Thks
Sudhir Kumar, Advocate
(Expert) 20 April 2023
Finding competent DA is one of the big hurdle in commencement of Inquiry. Most of the charged officer are first time chagesheeted and none wants to maintain contacts with those who can be DA.
However the officials working as DA has a verbal publicity and can be contacted. In some small organization such thing does not work. The permission for relieving DA for attending inquiry can be denied on a specific day. A blanket ban by controlling officer amounts to denial of opportunity.
In this case very effective results cannot be achieved by arguing with the controlling officer. The charged officer can be given chance to seek another DA.
P. Venu
(Expert) 20 April 2023
What is the law under which the Inquiry is being conducted? Is it CCS(CCA) Rules, 1965?
Querist :
Anonymous
(Querist) 20 April 2023
Yes CCS(CCA) rule 1965
Sudhir Kumar, Advocate
(Expert) 20 April 2023
CCS(CC&A) rule swill not provide any codified reply to the question.
T. Kalaiselvan, Advocate
(Expert) 20 April 2023
You cannot find any provisions of law suiting to your current situation/requirement.
It will be your discretion based on the nature and urgency of the inquiry and the pressure to submit your report within a time stipulated, if any.
You can take a considered decision considering the prevailing circumstances.
kavksatyanarayana
(Expert) 20 April 2023
Yes. To my best, CCS rules are not provided in your stated situation. DEFENCE ASSISTANT Rule 14 (8)(a) of CCS Rules 1964: The charged officer can avail the assistance of a retired or serving govt. servant to assist him as Defence Assistant. If the Presenting Officer is a legal practitioner, the Defence Assistant may be a legal practitioner. Regarding the circumstances of the case, the disciplinary authority may permit a legal practitioner as a defensive assistant to assist the govt. servant. If the Presenting Officer is a legal advisor or law officer of the department, the charged officer can be given the assistance of a legal practitioner. If the case is complicated in nature involving substantial questions of law and perusal of voluminous records, and the charged officer is illiterate then the disciplinary authority can allow the assistance of a legal practitioner. The retired govt. the servant should not have assisted in investigating the case at any stage. The retired govt. servant should not act as Defence Assistant in more than seven cases at a time including the case in question. A certificate may be taken from him in this regard. The serving govt. servant shall not have more than five cases with him. He shall take permission from his controlling authority to absent himself from office to assist the charged officer during the inquiry. Inform the controlling officer of the Defence Assistant if the charged officer has finalized the name of the Defence Assistant. A suspended govt. employee can be a Defence Assistant.
P. Venu
(Expert) 20 April 2023
Rule 14 of the CCS(CCA) Rules 1965 provides for the Charged officer taking assistance of the Defence Assistant right from the stage of preliminary inquiry. In this context provisions of subrules (7) & (8) repays study -
"(7) The Government servant shall appear in person before the inquiring authority on such day and at such time within ten working days from the date of receipt by the inquiring authority of the articles of charge and the statement of the imputations of misconduct or misbehaviour, as the inquiring authority may, by notice in writing, specify, in this behalf, or within such further time, not exceeding ten days, as the inquiring authority may allow.
"(8)(a) The Government servant may take the assistance of any other Government servant posted in any office either at his headquarters or at the place where the inquiry is held, to present the case on his behalf, but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or, the disciplinary authority, having regard to the circumstances of the case, so permits ;
"Provided that the Government servant may take the assistance of any other Government servant posted at any other station, if the inquiring authority having regard to the circumstances of the case, and for reasons to be recorded in writing, so permits.
"Note : The Government servant shall not take the assistance of any other Government servant who has three pending disciplinary cases on hand in which he has to give assistance.
"(b) The Government servant may also take the assistance of a retired Government servant to present the case on his behalf, subject to such conditions as may be specified by the President from time to time by general or special order in this behalf."
Further clarification is provided by the Government of India Instructions under Rule 14 ibid -
(7) Assisting Government servants :-
Rule 14 (8) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides that the Government servant against whom disciplinary proceedings have been initiated may take the assistance of any other Government servant to present the case on his behalf. While no permission is needed by the official who is charge sheeted to secure the assistance of any other Government servant, it is necessary for the latter to obtain the permission of his controlling authority to absent himself from office in order to assist the accused Government servant during the enquiry. It would avoid delay in granting such permission, if the Inquiry Officers take the initiative in the matter of informing the controlling authority in this regard. It is, therefore, suggested that as soon as an accused Government servant informs the Inquiry Officer of the name and other particulars of the Government servant who has been chosen by him to assist in the presentation of his case, the Inquiry Officer should intimate this fact to the controlling authority of the Government servant concerned. Further, the date and time of the hearing should be intimated to the said controlling authority sufficiently in advance adding that if, for any compelling reason it is not practicable to relieve the Government servant concerned on the due date or dates to attend the enquiry, the Inquiry Officer, the accused official and the Government servant chosen for assisting the accused official may be advised well in time.
2. It is requested that necessary action may please be taken to ensure that all Inquiry Officers follow the procedure outlined above. A copy of the circular is also being endorsed to the Commissioners for Departmental Enquiries.
[CVC Letter No. 61/3/67-C dated the 8th January, 1968].
(13) Permission to engage a Legal Practitioner :-
Rules 14 (8) (a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 provides, inter-alia that a delinquent Government servant against whom disciplinary proceedings have been instituted as for imposition of a major penalty may not engage a legal practitioner to present the case on his behalf before the Inquiring Authority, unless the Presenting Officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority, having regard to the circumstances of the case, so permits. It is clarified, that, when on behalf of the disciplinary authority, the case is being presented by a Prosecuting Officer of the Central Bureau of Investigation or a Government Law Officer (such as Legal Adviser, Junior Legal Adviser), there are evidently good and sufficient circumstances for the disciplinary authority to exercise his discretion in favour of the delinquent officer and allow him to be represented by a legal practitioner. Any exercise of discretion to the contrary in such cases is likely to be held by the court as arbitrary and prejudicial to the defence of the delinquent Government servant.
[Deptt. of Personnel & AR OM dated the 23rd July, 1984].
(14) Restriction on engaging Defence Assistant :-
Sub-rule (8) of Rule 14 of CCS (CCA) Rules, 1965 provides that a Government servant may take the assistance of any of the Government servants posted in any office either at his headquarters or at the place where the inquiry is held, to present his case on his behalf. A Government servant may, however, take the assistance of any other Government servant posted at any other station on being permitted by the Inquiring Authority to do so.
2. The Staff Side of the National Council (JCM) represented that the aforesaid provision in the rules was restrictive, amounting the denial of justice, and should therefore, be removed. The matter was also discussed in 28th Ordinary Meeting of the National Council held on 14th/15th January, 1986.
3. Rule 14 (8) of CCS (CCA) Rules, 1965 does not totally prohibit having a Defence Assistant from any station other than the headquarters of the charged Government servant or the place of inquiry. It is open to the inquiring authority to permit the appointment of a Defence Assistant from any other station, having regard to the circumstances of each case. However, at present, there is no provision for appeal against the decision of the inquiring authority in the matter, should it decide to refuse permission.
4. It has, therefore, been decided after discussion with the Staff Side, that a Government servant should be allowed to make a representation to the Disciplinary Authority if the Inquiring Authority rejects a request for permission to take a Defence Assistant from a place other than the headquarters of the charged Government servant or the place of inquiry. Accordingly, in all cases where the inquiring authority rejects the request of the charged Government servant for engaging a defence assistant, from any station other than the headquarters of such Government servant or the place where the inquiry is conducted, it should record its reasons in writing and communicate the same to the charged Government servant to enable him to make a representation against the order, if he so desires, to the disciplinary authority. On receipt of the representation from the charged Government servant, the Disciplinary Authority, after applying its mind to all the relevant facts and circumstances of the case, shall pass a well-reasoned order either upholding the orders passed by the inquiring authority or acceding to the request made by the charged employee. Since such an order of the disciplinary authority will be in the nature of a step-in-aid of the inquiry, no appeal shall lie against that order.
[Department of Personnel & Training OM dated the 29th April, 1986].
(16) Retired Government servants appearing as defence assistants – conditions regarding.
The staff side in the National Council (JCM) had made a demand for enhancing the ceiling on the number of cases a retired Government servant can take up as Defence Assistant. In the light of the discussion in the meeting of the National Council in this regard, it has been decided to raise the limit of cases from five to seven. Hence in supersession of the earlier order on the subject, it has been decided in terms of rule 14 (8) (b) of the CCS (CCA) Rules, 1965 that the Government servant concerned may take the assistance of a retired Government servant subject to the following conditions :-
(i) The retired Government servant concerned should have, retired from service under the Central Government.
(ii) If the retired Government servant is also a legal practitioner, the restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, contained in Rule 14 (8) of the CCS (CCA) Rules, 1965 would apply.
(iii) The retired Government servant concerned should not have, in any manner, been associated with the case at investigation stage or otherwise in his official capacity.
(iv) The retired Government servant concerned should not act as a defence assistant in more than seven cases at a time. The retired Government servant should satisfy the inquiring officer that he does not have more than five cases at hand including the case in question.
[Deptt. of Personnel & Training OM dated 05.02.2003].
CCS(CCA) Rules and the GOI instructions, as on date, could be accessed at https://dopt.gov.in/ccs-cca-rules-1965#:~:text=Under%20the%20Central%20Civil%20Services,%2F2%2F87%2DEstt.
Querist :
Anonymous
(Querist) 20 April 2023
Thks Venu sir for the exhaustive reply
Dr J C Vashista
(Expert) 21 April 2023
Very valuable information / advice has been provided by experts, I concur.
