You have not clarified as to which is the organisation or Government. It may depend on what are the rules of the particular organisation or Government.
With regard to the Central Government rules, in my understanding, it is legally possible to issue a charge sheet without seeking explanation of the government servant concerned, though it is always desirable first to seek his explanation to understand his side of the story in order to take a balanced view of the alleged misconduct.
For example, Rule 14(4) of the CCS (CCA) Rules lays down that: “The disciplinary authority shall deliver or cause to be delivered to the Government servant a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and a list of documents and witnesses by which each article of charges is proposed to be sustained and shall require the Government servant to submit, within such time as may be specified, a written statement of his defence and to state whether he desires to be heard in person.”
It would appear from this sub-rule that charge sheet is served to the government servant and then his written statement (equivalent to his explanation) is called.
In addition to the above, there may be a question whether his explanation need to be called during the preliminary enquiry in his misconduct. However, as I have pointed out in an earlier reply [Preliminary enquiry – whether necessary before major penalty charge sheet and can a junior officer conduct it?], a preliminary enquiry itself may not always be necessary before conducing regular disciplinary proceedings. So, seeking the explanation of the government servant concerned may not be mandatory even at that stage.
However, all said and done, whatever the rules may say, there is no harm if the explanation is sought before issuing the formal charge sheet, may be at the stage of a preliminary enquiry (whether formal or informal) so that a balanced view could be taken on the alleged misconduct. So, even if the rules may not provide, it may perhaps be advisable to seek an explanation from the delinquent employee.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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