ISSUING CHARGE SHEET IN A DISCIPLINARY ENQUIRY 1.

Object of issuing a Chargesheet The first step in a Departmental Enquiry is the issuance of a charge sheet containing definite charge or charges on which it is proposed to take action against an employee for a misconduct alleged to have being committed by him, together with a statement of the allegations on which each charge is based and other material which is proposed to be taken into consideration in support of the same. The object of furnishing a charge sheet is to give employee an opportunity to show cause against the action proposed to be taken against him in respect of the misconduct alleged against him, so that he knows nature of the misconduct with which he is charged and has a reasonable opportunity to defend himself. As laid down by the Supreme Court in Khemchand v. Union of India, AIR 1958 S.C.300, if the opportunity to show cause is to be a reasonable one, it is clear that he should be informed about the charges leveled against him and the evidence by which it is sought to be established; for it is only then he will be able to put forward his defence and show that the evidence against him is not worthy of credence and consideration. One of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and a mere pretence. Very recently the Supreme Court has held that in a Departmental proceedings, where the charge sheet is issued and documents which are proposed to be utilized against that person are indicated in the charge sheet but copies thereof were not supplied to him inspite of this request, and he is, at the same time called upon to submit his reply, it can not be said that an effective opportunity to defend was provided to him (State of U.P. v. Shatrughanlal and Anr. 1998 (6) Supreme 587).

2. Authority Competent to draw up the charge sheet Whenever the Disciplinary Authority is of the opinion that there are grounds for enquiring into the truth of any imputation of misconduct or misbehaviour against a public servant, the disciplinary authority shall draw up or cause to be drawn up the substance of the imputation of the misconduct or misbehaviour into definite and distinct articles of charge. The expression disciplinary authority has a two fold meaning. For the purpose of imposing Major Penalties it can only be the appointing authority, whereas for issuing chargesheets, it can be any authority competent to impose penalties. Where the Head of the Department is competent to impose some of the penalties, then he is competent to issue the charge sheet and the appointing authority can impose the punishment of dismissal (Union of India v. F.A.Munaf, 1968(17) FLR 14 SC). When the rules provide the authorities who can take disciplinary action, then those authorities alone can issue the charge sheet even though they are not appointing authorities (S.Mishra v. D.C.S., 1969(18) FLR 137 Cal.). An officer who is acting in the place of the appointing authority as a stop gap

arrangement while the former is on leave is not competent to perform the statutory functions and a charge sheet issued by him is illegal (Pravesh Chandra Datta v. Collector of Calcutta, 1979 (1) SLR 44 Cal.). The exercise of power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is none the less so, by reason of the fact that an opportunity to show cause and enquiry simulating judicial standards have to precede the exercise thereof. I is well recognized that a statutory functionary exercising such a power can not be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercising an administrative power. What can not be delegated except where the law specifically so provides is the ultimate responsibility for the exercise of such power (Pardyat Kumar Bose v. Chief Justice of Calcutta, AIR 1956 SC 285: 1955(2) SCR 1332: 1956 SCJ 259). In a case where departmental enquiry was initiated against a sub-inspector of police by the Supdt. of Police, who after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the Sub-Inspector of Police from service. The order of dismissal from service was challenged before the High Court on the ground that the enquiry held by the Supdt. of Police was against the mandate of Article 311(1) of the Constitution as he was incompetent to conduct the enquiry, since the sub-inspector of police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to the Supreme Court. Rejecting the contention that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should be initiated or conducted by the authorities mentioned in that Article, the Supreme Court held: This Article does not in terms require that the authority empowered under that provision to dismiss or remove an official should itself initiate or conduct the enquiry preceding the dismissal or removal of the officer or even that enquiry should be done at its instance. The only guarantee to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate that by which he was appointed.. We are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should also be initiated and conducted by the authorities mentioned in that Article. (State of Madhya Pradesh v. Sardool Singh, 1970(1) SCC 108). In P.V.Sinivasa Sastry v. Comptroller & Auditor General, 1993 (1) SCC 419, the Supreme Court held that in the absence of a rule, any superior authority who can be held to be controlling authority can initiate a departmental proceeding and that initiation of a departmental proceeding per se does not visit the officer concerned with any evil consequences. In Transport Commissioner, Madras v. A.Radhakrishna Murthy, 1995(1) SLR 239 SC, the Supreme Court held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority.

This issue again came up for consideration before the Supreme Court in Inspector General of Police v. Thavsiappan, 1996(1) Supreme 565, where it was observed that there is nothing in the rules to show that the charge should be framed and the enquiry held only by that authority which is competent to impose the penalty. An act of instituting a disciplinary proceeding is quite different from conducting an enquiry. It is not necessary that the charge should be framed by the authority competent to impose the penalty or that the enquiry should be conducted by such authority only. The Supreme Court held that the view taken by the Tribunal that the charge memo should be issued only by the disciplinary authority empowered to impose the penalties and if the charge memo is issued by any lower authority, then only that penalty can be imposed which that lower authority is competent to award, is clearly erroneous. 3. Charge should not be vague The charge should contain full particulars of misconduct including the date, time and place of misconduct. The language of the charge must be clear, precise, unambiguous and free from vagueness. When an employee is charged of circulating false rumours for implicating the Director in a false case, for willful disobedience of orders, grave negligence, fabricating false entries for making illegal issue of petrol, unless particulars has to be date, time, place and person are given, the charge will be vague. It can not be said that the details are a matter of evidence. If a person is not told clearly and definitely what the allegations are on which the charges against him are founded, he cannot possibly by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him. (Surath Chandra Chakravarthy v. State of West Bengal, AIR 1971 SC 752). In Northern Railway Co-operative Credit Society Ltd. v. Industrial Tribunal, Jaipur, AIR 1967 SC 1182, the Supreme Court that observed that the charge sheet which was served on the workman was very vague and did not contain any details as could enable him to give any explanation. One charge stated that the workman had instigated and conspired to paralise the working of the Society by collectively submitting sickness certificates, but did not mentioned whom he had instigated and conspired. Yet another charge of taking active part in the issue and distribution of certain leaflets against the management of the Society did not at all indicate what those leaflets were and what part the workman had taken in the issue of distribution of those leaflets. In respect of another charge of carrying vilifying propaganda, there was no specification as to the persons with whom the propaganda was carried out, where and when. In charge of instigating the depositors to withdraw their deposits, there was no mention as to which depositors had been instigated and when. It was held, for this and other reasons, the Tribunal was perfectly justified in setting aside the order or removal. A Head Constable of the Uttar Pradesh Police was proceeded against for alleged misconduct of hunting a bull in Govt. forest by taking advantage of his office and rank. The Supreme Court confirmed the decision of the High Court and held that the Head Constable had no reasonable opportunity of defending himself against the

charges leveled against him and he was prejudiced in the matter of his defence and that (i) in the charge sheet served on him no particulars with regard to the date and time of his having entered the Govt. forest and hunting a bull there and thereby having injured the feelings of community were mentioned and even the location of the incident in the vast forest was not indicated with sufficient particularity; and (ii) copies of statements of witnesses recorded during the preliminary enquiry were not furnished to the charged official at the time of the enquiry. The Supreme Court held that the responded was denied reasonable opportunity to defend himself in the disciplinary enquiry (State of Uttar Pradesh v. Mohd.Sherif, 1982(2) SLR SC 265). In Savai Singh v. State of Rajasthan (AIR 1986 Supreme Court 995) the Supreme Court held that where the charges framed against the employee were vague, even though the delinquent did not make any allegation of vagueness of the charges before the inquiry officer or before a Court of law, the fact that he had participated in the inquiry would not exonerate the employer and the inquiry based on such charges would stand vitiated and the punishment based on such inquiry would be liable to be set aside. Where the charge against a Dy.Commissioner of Income-tax was that he had falsely shown some appeals as having been disposed of without actually passing orders but no documents were filed with regard to the appeals falsely shown to have been disposed of which could prove this fact nor any oral evidence was mentioned in support of the charges, the Madras High Court held that the charge-sheet was vague, lacking in the requisite particulars giving opportunity to the charged officer to defend himself (Raj Kumar Singh v. Union of India, 1992(1) SLR (CAT) 280 Madras). In a case charges were framed by the Disciplinary Authority to the effect that he indulged along with eight other officials in the act of misappropriation of Govt. funds by falsification of accounts by indicating false amounts of fees in the triplicate copies of the receipts which were lesser than the amounts which were actually collected from the public and with the connivance of other officials with the malafide intention of cheating the Government had misappropriated Government money. The Supreme Court observed that a reading of charges would show that they are not specific and clear. They do not point out clearly the precise charges against the respondent, which he was expected to meet. One can understand the charges being accompanied by a statement of particulars or other statement furnishing the particulars of the aforesaid charges but that was not done. The charges are general in nature to the effect that the respondent along with eight other officials indulged in misappropriation by falsification of accounts, what part did the respondent play, which account did he falsify or help falsify, which amount did he individually or together with other named persons misappropriate, are not particularised. The charge is a general one. It is significant to notice that respondent has been objecting to the charges on the ground of vagueness from the earliest stage and yet he was not furnished with the particulars. On these grounds, the Supreme Court quashed the Charge-sheet.(Transport Commissioner v. A.Radhakrishna Murthy1995(1) S.L.R.239-S.C.).

The above principles laid down by the Supreme Court should always be kept in mind while preparing the Charge Memos in departmental inquiries. 4. Charge should not contain any expression of opinion indicating that DA has closed or prejudged mind The Charge memo should not indicate that the Disciplinary Authority had already come to a definite opinion and closed mind about the misconduct committed by the Charged person and with bias against him, which is violative of the principles of natural justice. In a case, the Disciplinary Authority issued the following charge memo to the employee By your aforesaid acts, you have temporarily misappropriated the amounts collected towards insurance premiums, tampered with the officials records, failed to maintain absolute integrity and acted in a manner prejudicial to good conduct and to the detriment of the interests of the Corporation. You have thus violated the provisions of Regulations 21 and 24 of the Life Insurance Corporation of India (Staff) Regulations 1960 for which misconduct any one or more the penalties as specified in the Regulation 39(i) to (g) of the LIC of India (Staff) Regulations 1960 can be imposed on you. The Andhra Pradesh High Court held that the words used in the Charge memo are such as to create an impression in the mind of the petitioner that the Disciplinary Authority has prejudged the issue and the enquiry is farce. (M.A.Naayana Setty v. Divisional Manager, LIC of India Cuddapah 1991(8) SLR (AP). In another case, it was mentioned in the Charge sheet as under By doing so, you as a Supervisory Officer, proved as a careless and irresponsible officer. Thus, it is proved that while you recommended for issuance of licence of coal after site inspection, that act on your part was wrong. From the above it is proved that you are careless, irresponsible and not trustworthy official. It was held that the use of these words in the charge sheet indicates as if the petitioner had already been found guilty and on the basis of some evidence which was in the possession of the disciplinary authority it already stood proved that the petitioner was guilty of the charge. On this ground also, the whole enquiry proceedings are vitiated and the impugned order is liable to be set aside (Hans Raj Gupta v. State of Punjab 1992(1) SLR P&H 146). In a Departmental inquiry the Dy. Superintendent of Police stated in the Charge memo that the delinquent officials had abused their officials position and brought discredit to the department. The Andhra Pradesh High Court held that the wording in the Charge memo expressed a categorical opinion and indicated bias or at any rate a fear or apprehension in the minds of the delinquent officials that they had not hope or chance of a fair trial and it would vitiate the proceedings. (P.Sriramulu and another v. State of Andhra Pradesh AIR 1970 A.P.114). In a departmental inquiry it was contented that in the charge sheet it was stated that the delinquent had committed gross misconduct which showed that the officer had a closed mind and was working under prejudice and bias thereby presuming that the delinquent had committed the misconduct. It was contended that the Officer should

have said that the delinquent is said to have committed gross misconduct or is alleged to have committed gross misconduct. In that context the Central Administrative Tribunal referred to the charges framed against the accused persons in criminal proceedings in which it will not be mentioned that the accused is said to have committed or is alleged to have committed the offence and therefore no exception can be taken to the charges framed in this case. The Calcutta High Court agreed with the view of the Central Administrative Tribunal (Sankari Pada Mukherjee v. Union of India 91986(2) SLJ CAT Calcutta 166). In K.Ramachandran v. Union of India (1993(4) SLR CAT Mad 324) it was contended before the Central Administrative Tribunal that the articles of charge amounted to a conclusion being reached by the disciplinary authority prejudging the issue. Tribunal referred to the fact, as pointed out by the respondents that the word that occurring at the beginning of each of the articles would mean that the applicant was being charged that he was guilty of misconduct and they were not conclusions but only charges or allegations, and observed that the charges should be precise and specific and the charges and the memo in support thereof amount only to imputations and not to conclusions and that it cannot be the case of the applicant that there should be no imputation or allegation at all in the charge memo, and if there are no imputations or allegations then there would be nothing which the applicant would be called upon to defend himself against. It may be noticed in this connection that in the Criminal Procedure Code, 1973 model forms of charges to be framed against the accused in respect of various offences under the Indian penal Code have been given in the Second Schedule of the Code. All the model charges start with the word that. For instance in a charge under Sec.161 I.P.C., against a public servant for accepting a bribe, the charge reads as under That you, being a public servant in the .. Department, directly accepted from (state the name) for another party (state the name) gratification other than legal remuneration, as a motive for for bearing to do an official act, and thereby committed an offence punishable under Sec.161 of the Indian Penal Code, and within the cognizance of the Court. The courts invariably follow these model forms for framing the charges against the accused persons with necessary modificatons as per the facts and circumstances of the case. On the same analogy, even in a departmental inquiry it is desirable that the charge memo starts with the word that, so that the charge is not challenged on the ground that it indicates expression of opinion and bias on the pat of the disciplinary authority. 5. Charge should mention the Conduct Rule violated The Conduct rules applicable to employees working in Civil services or other categories of public services and the standing orders governing Industrial employees contain various provisions the violation of which attracts disciplinary action against the employee who violates any rule of conduct. It is , therefore, necessary that the charge refers to the particular rule or the standing order so that the charged person would understand what exactly is the Conduct Rule violated, and have the opportunity to meet the charge and to defend

himself by giving proper explanation after knowing the nature of misconduct or violation of any of the Conduct Rules with which he is charged. So far a Government servants are concerned the Central Administrative Tribunal in K.Ramachandran v. Union of India, 1993(4) SLR CAT Mad. 324 dealt with the contention of the delinquent employee that the charges do not reveal any violation of the provisions of C.C.S. Conduct Rules and as such the charges should be quashed. The Tribunal observed that Rules 4 to 22 can by no means be considered to be exhaustive of all the acts of misconduct or misbehaviour and that this much is clear from the numerous decisions of the Government of India in which specific acts of misconduct not covered under the above rules have been spelt out and wherein it has been expressly provided that violation of the instructions would render a Government servant liable for disciplinary action. The Tribunal further observed that in the present case, the articles of charge read with the statement of imputations of misconduct do have sufficient precision and accuracy to meet the above dictum. Where no specific Rule falling under Rules 4 to 22 covers the acts of misconduct in a case such as the present one, a mere reference to Rule 3, which would cover most acts of misconduct in a general way cannot be considered a sine qua non; and the absence of such reference will not constitute an infirmity in the Charge memo. 6. Charge sheet may be issued in respect of previous misconduct prior to entering in Service:- The appellant, a member of the IAS was compulsorily retired from services on charges of gross misconduct and indiscipline. He was later employed as Professor and Head of the Department of Political Science in the Punjab University and subsequently appointed as Vice Chancellor. His services were terminated on the ground of his past misconduct which resulted in his compulsory retirement from the Indian Administrative Servide, after giving him a show cause notice. The Supreme Court upheld the action of termination of his services by the Chancellor on the ground that it was not in the public interest to retain him as Vice-Chancellor in view of his past misconduct (Dr.Bool Chand v. Chancellor, Kurukshetra University AIR 1968 SC 292). The Petitioner, a Store Issuer in the Railways was removed from service on the charge that he furnished a false date of birth. The High Court did not accept the contention of the petitioner that the wrong entry was probably made by the Medical Officer and held that the petitioner had made a mis-statement of an important fact and that the responsibility rested solely on him. The contention of the petitioner that even if a wrong statement had been made, he could not be removed unless it was shown that had he not made the false statement he would not have been inducted into Railway Service, and that irrespective of the wrong statement made by him he was still entitled to enter Railway service, was not accepted by the High Court (Musaddilal v. Union of India 1981(2) SLR P&H 555). The petitioner was employed in the A.P.State Road Transport Corporation subject to various terms and conditions one of which was that the employer should be entitled to take disciplinary action in respect of the petitioners previous service. The Andhra

Pradesh High Court held that while it is true that once the relationship of Master and servant under the previous engagement had come to an end by termination, no disciplinary action could be taken in respect of any misconduct relatable to that period and in the present case the petitioner had consented to the condition that the employer is entitled to take disciplinary action in respect of his previous service and as such the disciplinary action was valid. (Ch.Laxmi Narayana v. Depot Manager, APSRTC, Korutla 1990(1) SLR ap 110:1989(3) ALT 48). The appellant joined service in the Municipal Council, Katangi on 24.02.1967. Prior to this appointment in this service he was convicted for an offence under Section 377 IPC (Carnal intercourse against order of nature) and sentenced to one and a half years RI. He did not disclose to the Municipal Council at the time of his appointment about his previous conviction, while in fact he was ineligible for appointment in the service of the Municipality on that ground. His conviction was brought to the notice of the employer on 15.09.1971 and subsequently by the report of a Police Officer on 01.04.1974 but no action was taken and he was dismissed from service later on receipt of a further complaint on 02.03.1982. Supreme Court rejected the contention of the appellant that it must be construed that the employer elected to continue the appellant in service by waiving or condoning the appellants misconduct and hence he cannot go back upon his election and claim a right to dismiss him in respect of the offence condoned. Supreme Court observed that as pointed out by the High Court, the magnitude of the crime involving the moral turpitude of a very low order, does not warrant any interference with the judgement of the High Court. As per the rules, no candidate should be employed as officer or servant of Municipal Committee if he had been convicted for an offence, involving moral turpitude. Therefore, the appellant who had been convicted for an offence involving moral turpitude was ineligible for being appointed in the service of the Municipality. There is no record to show that the appellant while seeking appointment had appraised the authorities of his having been so convicted (Jamil Ahmed Qureshi v. Municipal Council, Katangi, 1993(3) SLR SC 15). 7. Whether past misconduct can be taken into consideration without including in the Charge If a Disciplinary Authority wants to take into consideration any previous conduct of an employee, which would aggravate his case, it is an established principle of natural justice that such a conduct should be brought to the notice of the employee concerned, so that the employee gets an opportunity of putting forth his case in that respect also. In a departmental inquiry the disciplinary authority has taken into consideration not only the charge of unauthorised absence for three spells of time but also previous similar lapses and come to the conclusion that the charged official was guilty not only of unauthorised absence for three spells which is the only charge, but also of general irregularity in attendance which is not to be found in the charge. So the order of removal is based not only on the charge but also on the previous conduct. The Madras

High Court held that the charged official has accepted the guilt only to the extend of the charge, viz., three spells of absence and pleaded a lenient view on the ground of extraneous circumstances. Had the Disciplinary Authority included in the charge not only the three spells of absence but also the fact that these three spells of absence are in continuation of his previous similar lapses and that his conduct through a long period was being considered for the purpose of action, the charged official could have given a reply consequently. Such an opportunity was not given and the Tribunal therefore held that the order of removal was vitiated by the fact of non-observance of the rule of natural justice which requires that disciplinary action be based only on the charge as framed (N.Rajendran v. Union of India 1991(7) SLR CAT Mad 304). The Petitioner was held to have violated Reg.5(3) of the Punjab National Bank Officer Employees (Conduct) regulations and that he did not obtain or send intimation for starting the business in the name of his wife and accepted the wrong address given by his wife in the partnership deed, though it was not part of the charge. Punishing authority also took into consideration the fact that the petitioner had committed various irregularities in the past on account of which major penalty of reduction of salary by three stages had been imposed by order dated 15.11.1984 and minor penalty of withholding of one graded increment with cumulative effect has been imposed by order dated 25.06.1986. It is thus clear that matters beyond the charge had been taken into consideration. The previous punishment or the misconduct was never a part of the charge. Consequently he had no opportunity to meet this aspect of the matter and failure to give such an opportunity is violative of the principles of natural justice (M.S.Bejwa v. Punjab National Bank 1994(1) SLR P&H 131). 8. Charge should not indicate penalty The Supreme Court in Khem Chand v. Union of India AIR 1958 SC 300: 1958 SCR 1080: 1958 SCJ 497: 1959(1) LLJ 167 held that there are two definite stages in the inquiry viz., the service of the charge sheet and the action proposed to be taken and that the second stage would arise only when the punishing authority has applied his mind to the entire evidence and arrived at a definite conclusion and that before that stage the charges are unproved and the suggested punishments are merely hypothetical. The Andhra Pradesh High Court held that if the charge mentions the proposed punishment it offends the provisions of Art.311 of the Constitution. (Y.Mohandas v. Supdt.of Police, 1967(1) An. W.R.156). The Karnataka High Court while observed that there is absolutely no need to mention the proposed punishment in the charge as the nature of penalty of any, to be imposed will have to be decided only at the end of the enquiry depending on the gravity of the accusation that is ultimately established and other circumstances, held that the fact the memoranda of charges did mention about the punishment of dismissal, by itself does not straight away lead to the conclusion that there has been a prejuding of matter because it has been succeeded by an explanation, enquiry findings, second show cause notice and dismissal (S.Nagaiah v. Management of Indian Aluminium Co.Ltd., 1990(5) SLR KAR 167). Taking the above decisions into consideration it is advised that there is no need to

mention the penalty in the charge sheet since the question as to what penalty is to be imposed will arise for consideration of the Disciplinary Authority, depending on the evidence adduced on both sides during the inquiry the facts and circumstances of the particular case and the gravity of the misconduct that has been established. 9.Errors in Charge In a case, it was also contended by the applicant that the corrigendum dated 14.02.1985 correcting the place of Inspection of the Postal Van from Bhatni to Mau was issued after hearing the defence of the applicant and was signed by the Deputy of the Competent Authority. The respondents contended that the place of inspection of the Postal Van was a typographical error and the correction was made as soon as the error came to their notice and that the applicant was given another opportunity to submit his defence and the correction of the typographical error was with the approval of the respondent in writing. The Tribunal held that the correction of such typographical error is a routine matter and its communication by his deputy does not constitute any irregularity or illegality. (Paresh Nath v. Senior Supdt., RMS 1987(1) SLR CAT ALL 531). Alteration or addition or amending of a charge is merely matter of procedure and so long as ample notice of such alteration or addition or amendment is given and adequate opportunities for defence are afforded to the delinquent officer there will be not violative of the rules of enquiry. There is no objection to the charge sheet being amended by the disciplinary authority during the enquiry but in such a case the Government servant should be given reasonable opportunity of meeting the amended charge by recalling the witnesses already examined or by producing new evidence. And if a major amendment to the charge is required to be made then it is better to cancel the first charge and issue a fresh charge-sheet (Raja Kishore Dass v. State of Orissa, AIR 1965 Ori 183). The Charge was modified by substituting the words and figures Goods worth Rs.1,09,752/- for the words Goods worth Rs.7,680/- and substituting the words Rs.58,200/- for Rs.1,30,400/-. It was contended that the amended vitiated the entire disciplinary proceedings. The High Court did not agree with the contention and observed as under: When the mistakes were discovered the wrong figures were requested to be corrected by the Presenting Officer. That request was made at the start of the enquiry itself. As it was only a matter of correction of a mistake in the figures, the High Court held that it cannot be said that the charge by itself was amended. Nor has the correction gone to prejudice the petitioner in any manner. (P.Narayanan v. State Bank of Travancore, 1989(6) SLR 709 (Ker.).