WHO IS A DEFENCE REPRESENTATIVE?
Defence Representative is also known as Defence Assistant or Officer’s Representative or DR.
In a Departmental Enquiry, the Charged Employee has a right to be represented by another employee known as Defence Representative.
Defence Representative assists the Charged Employee during Enquiry Proceedings.
WHAT PURPOSE DOES DEFENCE REPRESENTATIVE SERVE?
In most of the cases, the Charged Official does not have sufficient knowledge about the process of Departmental Enquiry. Even if the Charged Official has knowledge about the Enquiry process he may still wish to take the assistance of someone who is well versed with Disciplinary Rules and Regulations.
It is important to know that prior approval from Enquiry Officer or Disciplinary Authority or any other Authority is not required to be obtained by the Charged Employee to take the assistance of any other Employee as his Defence Representative. Simply the willingness of Charged Employee and employee acting as Defence Representative is the only requirement.
Permission in certain cases is, however, required as explained subsequently.
Further, Management has to ensure that the Defence Representative is relieved from his duties to attend Enquiry Proceedings from time to time. However, it is not a matter of right for the Defence Representative to be always relieved from his office to attend Enquiry Proceedings. Keeping in view the exigencies of work, Competent Authority may advise the Defence Representative to request Enquiry Officer to postpone Enquiry Proceedings on a later date if there is some exigency of work on the date of hearing in an Enquiry.
PROVISIONS REGARDING DEFENCE REPRESENTATIVE
To provide sufficient and reasonable opportunity to the Charged Employee the following provisions allow for taking assistance of a Defence Representative.
PROVISIONS IN BIPARTITE SETTLEMENT DATED 10.04.2002
Clause 12(A) provides that:
- The Charged Employee can be defended by a representative of the Registered Trade Union of Bank of which the Charged Employee is a member at the time of commencement of Enquiry Proceedings. However, if the Charge Employee is not a member of any Trade Union, he can be represented by any representative of any Registered Trade Union of the Bank.
- The Charged Employee can also be represented by a representative of the State Federation or by a representative of the All India Organisation to which the aforesaid Trade Union is affiliated with.
- With the permission of the Bank, the Charged Employee can even be defended by a legal practitioner i.e. a lawyer.
PROVISIONS IN BANK’S OFFICER EMPLOYEES’ (DISCIPLINE AND APPEAL) REGULATIONS
- The Charged Officer can be defended by any other Officer Employee of the Bank. However, at a particular time, such Officer should have at most two (three in case of State Bank of India, SBI) Departmental Enquiries at hand in which he is a Defence Representative.
- The Charged Officer can also be defended by a legal practitioner i.e. a lawyer if the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or a legally trained person such as a Law Officer of the Bank.
- Officer Employees’ (Discipline and Appeal) Regulations of State Bank of India also provides an Officer to be represented by any Public Servant provided that the Presenting Officer appointed by the Disciplinary Authority is a Public Servant.
WHO CANNOT BE A DEFENCE REPRESENTATIVE?
The following persons cannot be a Defence Representative in a Departmental Enquiry:
- An employee who is dealing with the case of the Charged Employee in an official capacity cannot be a Defence Representative.
- A retired employee cannot be a Defence Representative.
- An outsider (except for SBI as explained below).
The following can be a Defence Representative only in certain cases:
- A legal practitioner i.e. a lawyer cannot be a Defence Representative unless specifically allowed by the Competent Authority or the Presenting Officer is a legal practitioner or a legally trained person such as a Law Officer of the Bank.
- An outsider can be a Defence Representative only if he is a Public Servant and the Presenting Officer is a Public Servant. However, this rule is applicable only in State Bank of India.
- An official posted in outside state or region can be a Defence Representative with prior approval of the Disciplinary Authority only if Charged Official is able to convince Disciplinary Authority that no employee within the state or region is competent to serve as a Defence Representative.
ENTITLEMENTS OF A DEFENCE REPRESENTATIVE
The Defence Representative is entitled to the following:
- Special Leave with full pay and allowances to attend the Enquiry.
- Return Fare of the class as per his entitlement if he is travelling on duty.
- Payment of TA/DA/Halting Allowance/Hotel Expenses as per his entitlement.
- Payment of Fare of Consequential Journey if he is advised by the Bank to not to attend Enquiry and to resume duties in view of an official exigency or if the Enquiry is adjourned.
RESPONSIBILITIES OF A DEFENCE ASSISTANT
- The primary responsibility of the Defence Representative is to present the case of the Charged Official properly and dextrously before the Enquiry Officer.
- He must ensure that the Enquiry Officer is not biased against the Charged Official.
- He must ensure his presence throughout the Enquiry Proceedings.
- He must ensure that there is no violation of Principles of Natural Justice during the course of Disciplinary Action in general and Enquiry proceedings in particular.
- He must ensure that proper opportunity is provided to the Charged Officer to defend himself.
- He should be able to analyze the credibility and strength of evidence adduced in the Enquiry. He should rebut hearsay evidence.
- He should ensure that all the relevant evidence has been adduced in a proper manner.
- He is responsible for inspection of documents from originals held in Bank’s record.
- He must ensure that the Enquiry is confined to the charges or lapses alleged in the Charge Sheet only. The enquiry should not go astray to discuss extraneous matters.
- He is responsible for deciding whether the Charged Official should appear as a witness or not. There is an inherent risk is Charged Official appears as a witness. In that case, he is open to be cross-examined by the Presenting Officer, who may ask leading questions to trap Charged Official.
- He must ensure that the Presenting Officer does not ask leading questions during Examination-in-Chief of Management Witnesses.
- He is responsible for making List of Defence Documents and Witnesses. Though the Defence Representative is to depend upon Management for procuring these documents, he should ensure that no document other than Privileged Documents are denied by the Management.
- He is responsible for convincing Enquiry Officer that the documents requested in the List of Documents and witnesses as per List of Witnesses are relevant to the Enquiry and will help in rebuttal of Charges.
- He is responsible for Examination-in-Chief of the Defence Witnesses and Cross-Examination of Management Witnesses.
- He should ensure that he is able to utilize to the full extent the opportunity to ask leading questions from Management Witnesses during their Cross-Examination.
- He should ensure that the points appearing in favour of Charged Official are highlighted and stressed before the Enquiry Officer.
- He must ensure that Charged Official is given the opportunity by the Enquiry Officer to give his submissions on the evidence appearing against him during the Enquiry Proceedings. However, he should also ensure that the Enquiry Officer must not ask counter questions or cross-examine the Charged Official.
- He is responsible for maintaining the dignity of the Enquiry Process.
- He is responsible for drafting Defence Briefs in an easy to understand and logical manner.
- He is responsible for drafting submissions of Charged Official when Enquiry Report is forwarded to him by the Disciplinary Authority for his submissions.
- He should accompany Charged Official during Personal Hearing (if applicable).
Can a Defence Representative continue with Enquiry Proceedings in the absence of Charged Official?
- Yes and No. As the role of the Defence Representative is to assist the Charged Official during the Enquiry Process. Therefore, the Defence Representative should not go ahead with the Enquiry Proceedings in the absence of Charged Official. However, if the Charged Official is absent only for a short duration, the Defence Representative may go ahead with the Enquiry Proceedings only if it is permitted by the Charged Official.
Can a Defence Representative appear as a witness?
- Yes, a Defence Representative can appear as a witness if it is relevant for the case and it is permitted by the Enquiry Officer.