HOW TO DRAFT AND ISSUE A CHARGESHEET AGAINST GOVERNMENT OFFICIALS

Government officials are the persons who implement/implement different government policies and schemes on the grounds of execution/implementation. There can, however, be occasions where an official may be found guilty of wrongdoing. There must be a process for investigating incidents of violence against government officials. It is also fair to have frameworks in which free and just inquiry is carried out in accordance with the concept of natural justice; an alleged crime has been identified against any official. Article 311 of Constitution of India provides the necessary safeguards, primarily two safeguards to the government officials in relation to their tenure of office,

• An authority subordinate cannot dismiss an official to the appointing authority of the official.
• Except after an investigation that offers an unlimited opportunity for the government official to defend himself, an official may not be fired or reduced in designation/rank. 

Disciplinary proceedings are pending against a government employee who is alleged to have committed wrongdoing.

• Who is to decide about the issue of charge sheets? 

The disciplinary authority, who takes cognizance of the misconduct, is the appropriate authority to decide as to whether formal disciplinary proceedings are to be initiated against the government servant or warning or counselling is to be administered. In cases where a preliminary investigation has been conducted, the disciplinary authority may take a decision based on the preliminary investigation report. In the cases falling within the purview of the Vigilance Commission, first stage advice of the Commission is also taken into consideration when the above decision is taken.

• How is the charge sheet to be issued?

Issue of the charge sheet is the discharge of the constitutional obligation - to inform the employee of the charges. The charge sheet, therefore, needs to be served on the employee. It may either be served in person or sent to the supervisory officer of the employee concerned for service or sent by registered post. Hon'ble Supreme Court in Delhi Development Authority vs H.C. Khurana has interpreted the term ‘issue of charge sheet’ in the following manner in the context of the applicability of the sealed cover procedure: 

"The issue of a chargesheet, therefore, means its despatch to the government servant, and this act is complete the moment steps are taken for the purpose, by framing the chargesheet and dispatching it to the government servant, the further fact of its basic service on the government servant not being a necessary part of its requirement. This is the sense in which the word 'issue' was used in the expression 'chargesheet has already been issued to the employee', in para 17 of the decision in Jankiraman." 

However, in the case of Union of India Vs. Dinanath Shataram Karekar & Ors,The Hon'ble Supreme Court vide its judgment dated 30/07/1998 had held that charge sheet dispatched by registered post and received back with the postal endorsement "not found" does not amount to issue of charge sheet and set aside the order dated 19 Aug 1985 holding. 

“It has already been found that neither the charge-sheet nor the show-cause notices were ever served upon the original respondent, Dinanath Shantaram Karekar. Consequently, the entire proceedings were vitiated.” 

• How are the Articles of Charge framed?

For deciding the articles of charge, one must go through the preliminary investigation report and list all the charges that come to his/her mind in the relevant case - such as theft, negligence, non-compliance of departmental instructions, failure to safeguard government property, facilitating theft, etc. Then all those charges must be arranged in the ascending or descending order of seriousness. This must be based on common sense. For example, common sense would tell us that theft, embezzlement are more serious charges than negligence and non-compliance of instructions. After arranging the likely charges in the order of seriousness, one should ask against the most serious charge, "Do we have evidence to establish this charge?" If the answer is negative, move down to the next most serious charges.

Similarly, if one starts with the least serious charge, ask the question. "Is it simply this only or something more serious?" If the answer is in the affirmative, move upward to the more serious charge. Through this process of elimination, one may arrive at the appropriate charge. 

• What are the precautions to be undertaken while preparing the Charge Sheet?  

While preparing the charge sheet, it must be ensured that only those documents are referred to and relied upon therein, so that all the listed documents could be made available. Further, the availability of all the listed documents must be ensured. In this connection, it is relevant that the Hon'ble Supreme Court had observed the State of Uttar Pradesh & ORS. Vs Saroj Kumar Sinha dismissed the appeal by the State holding as under:

“36. The proposition of law that a government employee facing a department enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration.” 

XXX 

"39. Taking into consideration the facts and circumstances of this case, we have no hesitation in concluding that the respondent had been denied a reasonable opportunity to defend himself from the inquiry. We, therefore, have no reason to interfere with the judgment of the High Court." 

Another important precaution to be undertaken before finalization of charge sheet is That one must go through it carefully following the "Devil's Advocate approach," i.e. Purely with the idea of finding faults in the charge sheet. The faults may range from simple clerical inaccuracies, through logical fallacies to utter absurdities. One basic question of prime concern at this stage is: How the charged officer will exploit this? Needless to add, any fault noticed must be rectified. 

• How many charges may be included in a single charge sheet?

There is no limit about the number of charges in a charge sheet. It must, however, be ensured that a charge should relate to a single transaction. For example, if an employee has committed fraud in three Money orders, these may be shown as three separate charges. The reasons are not far to seek. Each instance of misconduct is independent of the rest, and each instance will depend on distinct evidence. Showing them as separate charges will facilitate the proof of each charge irrespective of the outcome in respect of other charges. 

Conclusion

It seems that the process for taking disciplinary action against a government official is a long and thorough one. The basic concept is to ensure that necessary rules are available to prosecute cases of wrongdoing against officials who are unable to discharge their duties adequately and that if charged with misconduct, redress is permitted before being penalized in compliance with the Principle of Natural Justice.