Calling Your Own Defence Witnesses: Steps and Common Refusals

Defence witness in a departmental inquiry: where your evidence comes in

An inquiry under Rule 14 runs in a fixed order. The department goes first: the presenting officer produces documents and examines the people listed in the chargesheet, and you or your defence assistant cross-examine them. When the department's case closes, Rule 14(16) asks you to state your defence, orally or in writing. Then comes your turn to lead evidence, under Rule 14(17).

Defence evidence can be documents, people or both. This guide is about people. A defence witness is anyone who can tell the inquiry officer something, from first-hand knowledge, that weakens a charge: that you were elsewhere, that the instruction came from above, that the register was kept by someone else, that the procedure the department says you broke was never followed by anyone in that office.

Your witnesses are examined by you or your defence assistant, cross-examined by the presenting officer, re-examined by you if needed, and the inquiry officer may also put questions. Rule 14(17) applies the same procedure that governed the department's witnesses. After that, the inquiry officer must put the circumstances appearing against you to you under Rule 14(18), and then both sides file written briefs.

Plenty of employees skip defence evidence altogether, thinking cross-examination was enough. Sometimes it is. But if the department's witnesses said something you know to be wrong and nobody contradicted it on record, the inquiry officer will usually accept it. A defence witness is how you put the other version into the file.

Building your list of defence witnesses

The inquiry officer's order at the preliminary hearing, under Rule 14(11)(ii), invites you to submit a list of witnesses. Work through these steps before you submit it.

1. Write down what is disputed

   Take the articles of charge and the department's documents and note each fact you deny. Facts you accept do not need a witness. Most cases turn on three to six disputed facts.

2. Match a person to each disputed fact

   For every fact, ask who saw it, did it, signed it or was told about it at the time. Prefer the person closest to the event: the clerk who actually made the entry over the officer who later read it.

3. Speak to the person, if you properly can

   You may tell a likely witness what the case is about and ask what he remembers. Do not tell him what to say, and never offer anything for his evidence; a tutored witness is easy to break in cross-examination and can expose you to a fresh charge.

4. Write the list with addresses and a line on each

   Give the full name, designation, present posting or home address, and one or two lines on the points the witness will speak to. Inquiry officers refuse vague lists; they rarely refuse a list where the purpose of each name is plain.

5. Flag who is a government servant and who is not

   Mark serving staff with their controlling office so the inquiry officer can write to it. For private persons and retirees, give a phone number and say whether they are willing to come.

6. Keep the list short

   Four relevant witnesses carry more weight than twelve who repeat each other. A long list also gives the inquiry officer an easy reason to cut it down, and he may cut the wrong names.

Advocate B.K. Singh's first tip on witness lists: against each name, write three facts that person will speak to from his own knowledge. If you cannot fill three lines, the witness is probably there for comfort, not for evidence, and his presence may help the presenting officer more than you.

Common reasons for refusal of a witness, and how to answer them

Summoning a witness: what the inquiry officer can and cannot compel

For a serving government servant, summoning is usually straightforward. The inquiry officer writes to the witness, with a copy to his controlling officer, fixing the date. Government servants are expected to attend when called by an inquiring authority, and their offices are expected to relieve them; the time spent is generally treated as duty. If an office does not relieve a witness, ask the inquiry officer to write again and to record the first failure.

Private persons are a different matter. In an ordinary Rule 14 inquiry, the inquiry officer has no power of a civil court to force a trader, a contractor or a member of the public to attend. He can only request them. The Departmental Inquiries (Enforcement of Attendance of Witnesses and Production of Documents) Act, 1972 allows the Central Government to give an inquiring authority civil court powers of summoning in a particular inquiry or class of inquiries, but only where such a notification has been issued. Ask the inquiry officer in writing whether it applies to your inquiry.

Retired employees fall in between. They are no longer under any office's control, so they too attend only if willing, though many do when written to properly. Give the inquiry officer their home address and offer to coordinate the date with them.

Travel costs come up often. Serving staff usually claim from their own office as on duty. For private witnesses, government instructions have allowed travel expenses in some cases on the inquiry officer's certificate; ask the inquiry officer in writing, before the date, whether this will be met, so that a willing witness does not drop out over a bus fare.

Should you be your own witness?

Rule 14(17) allows you to examine yourself on your own behalf. You are not obliged to. The choice matters, because once you give evidence the presenting officer can cross-examine you, and anything you say becomes evidence that can be used for or against you.

Testifying helps where your account of events has not come on record any other way, for instance where you alone know why you signed a document or what a senior told you on the phone. It is riskier where the charge is about documents and your explanation is already clear from them, or where you are likely to get flustered and say something careless.

If you do not testify, the inquiry officer must still question you generally under Rule 14(18) about the circumstances that appear against you. That is not cross-examination, and it is not supposed to be a trap. Our guide on general examination under Rule 14(18) explains what it covers and why skipping it can damage the inquiry.

Many employees decide this at the last minute. Better to decide when you prepare your list: if you will testify, put your own name first and plan the order around you.

Using a witness to bring a document into the record

Some of the most useful defence evidence is a document that only makes sense when someone explains it: a duty roster in shorthand, a stores ledger with codes, a software screen that shows who approved an entry. Putting the paper on the file is not always enough. The person who kept it can tell the inquiry officer what each column means and who wrote in it.

So think in pairs. If you asked for an attendance register, list the clerk who maintains it. If you rely on a tour programme, list the officer who approved it. The witness then identifies the document, explains it, and the presenting officer can test it in front of the inquiry officer. That makes the paper much harder to dismiss in the report.

The reverse also happens. A witness may remember an event but get the date wrong; a document fixes the date. When you prepare, match each witness to the paper that supports his account and have both ready on the same day.

For Group A and B officers the paper is often a file noting, and the useful witness is the officer who wrote the noting above or below yours. For Group C staff it is more often a register and the person who kept it. Either way, the pairing works the same.

Before your witness walks into the hearing room

• Confirm the date, time and place with the witness two days before, and with his office if he is serving.
• Carry two copies of every document you will show him, with the page numbers marked.
• Prepare your questions in the order in which events happened, one fact per question.
• Keep leading questions out of your examination; ask 'what happened next', not 'is it right that he left at 4'.
• Note the points the presenting officer is likely to attack, so you can clear them up in re-examination.
• Take a copy of the daily order sheet of the last sitting to check what was recorded.
• Ask for a copy of the typed deposition once it is signed, and check it before the witness leaves.

When the presenting officer cross-examines your witness

The presenting officer's job is to support the charges, so expect him to test your witnesses. Typical lines are that the witness is your friend, that he was not actually present, that he is mistaken about the date, or that he had his own reason to blame someone else. A witness who has only been asked to tell the truth plainly handles this much better than one who has memorised a story.

You may object to a question that is plainly irrelevant, insulting or that asks the witness to guess. State the objection politely and ask that the question and the ruling be noted. Do not interrupt every few minutes; inquiry officers lose patience and the record starts to look like obstruction.

After cross-examination you can re-examine, but only on matters raised in cross-examination. Use it to clear up confusion, not to start a new topic. The inquiry officer may then ask the witness his own questions. He is allowed to do so to understand the evidence, but if his questions start to sound like a second cross-examination, read our guide on who does what between the presenting officer and the inquiry officer.

Read the deposition before it is signed. A witness's evidence is only as good as what the typist recorded. Ask for corrections then and there; it is far harder to get them later.

Refusal of a witness: get it in writing, then let it rest

Rule 14 does not set out a power to refuse defence witnesses in the same words as the proviso to Rule 14(12) does for documents. In practice, inquiry officers do refuse witnesses they consider irrelevant or repetitive, and courts accept that, so long as reasons are recorded and the refusal does not shut out evidence on a point that actually matters.

If a witness is refused, ask on the same day for the order and its reasons to be entered in the daily order sheet. Then send a short written reply explaining, again, what the witness would prove and why no other evidence covers it. Keep it to a page.

Just as with documents, there is no appeal against the inquiry officer's orders during the inquiry, because Rule 22 of the CCS (CCA) Rules bars it. The refusal is raised later: in your written brief, in the representation on the inquiry report and in any appeal. The guide on asking for additional documents follows the same pattern for papers.

Do not walk out of the inquiry in protest. An employee who stops attending risks an ex parte inquiry under Rule 14(20), which is much harder to undo; see what can be done after an ex parte inquiry.

How long defence evidence takes, and what it costs

Railway, postal and defence civilian staff, and trap cases

For railway staff, the inquiry runs under Rule 9 of the 1968 railway discipline rules, and the order of evidence there mirrors Rule 14. In many railway inquiries no presenting officer is appointed and the inquiry officer leads the department's evidence himself, which affects how your witnesses will be questioned. Witnesses are often running staff on rosters; ask the inquiry officer to fix dates with the crew controller in advance, or your witness may be on a train that day.

In postal cases, defence witnesses are often villagers who deposited money with a Gramin Dak Sevak or the branch postmaster's family. They are private persons and cannot be made to attend in an ordinary inquiry. Get their written account early and ask whether they will come; an unwilling witness at the last minute helps nobody. The postal and GDS employees page covers the Department of Posts' own procedure.

Defence civilian employees in MES, depots and workshops usually have serving colleagues as witnesses, which makes summoning easier, but the colleagues may still be under the same supervisor who started the complaint. Ask the inquiry officer to send the notice directly, not through that supervisor.

In CBI or vigilance trap cases, the key defence witness is often the independent witness who was present at the trap, if his account differs from the official one, or a colleague who saw the money placed. These cases often run alongside a criminal trial; our page on criminal trial and departmental proceedings on the same facts deals with the risk of disclosing your defence early.

How refusals are judged later

The old statement of the law still holds. In Union of India v. T.R. Varma (1957), the Supreme Court said that natural justice in a departmental inquiry requires that the employee have the chance to lead all relevant evidence on which he relies, that the opposing evidence be taken in his presence, and that he be allowed to cross-examine. A refusal to let you examine a witness who could speak to a disputed fact goes to the first of those requirements.

When a penalty is challenged before the Central Administrative Tribunal, it will ask whether you named the witness in time, explained why he mattered, objected when he was refused, and raised the point again in your representation and appeal. It will also ask whether the witness could have changed a finding. A refused witness who would only have praised your character will not help much; a refused eyewitness to the disputed event can.

The usual result where the refusal is found unfair is that the penalty goes and the inquiry restarts from the stage of the defence evidence. Our page on defending yourself before the inquiry officer puts this stage in the context of the whole hearing.

Mistakes with defence witnesses that cost people later

• Calling a senior to agree with you without asking him first. A superior who approved something orally may not admit it on record. Find out, politely, what he will say before you list him.
• Rehearsing the witness. Coached answers break under one or two questions from the presenting officer and make the rest of your defence look staged.
• Putting in a list of twelve. A long list of overlapping names gets trimmed, and the inquiry officer may trim the useful ones.
• Not recording the non-appearance. If a witness does not come, and the order sheet only says 'defence evidence closed', you have lost the point.
• Forgetting the deposition. A good witness can be undone by a careless typed summary. Read it before signature.
• Treating defence evidence as optional when the department's witnesses were not shaken. If cross-examination left their version standing, your own witness is the only way to put another version on record.

What to do before the next sitting

Find the inquiry officer's order from the preliminary hearing and check whether a date was fixed for your list of defence witnesses. If you missed it, write now, give the list and explain the delay. The earlier it reaches the file, the less it looks like an attempt to drag things out.

Then speak, with care, to the two or three people who really saw or did the things in dispute. Advocate B.K. Singh's second tip: before listing anyone, show him the one or two documents he will be asked about. Witnesses forget dates and file numbers, and a witness who is surprised by his own signature in the box does more harm than good.

If your inquiry is being run without a lawyer, our guide on getting help in a departmental inquiry without a lawyer explains who can assist you.

A witness list is easier to fix before it is filed than after. To have yours, or a refusal order, read before the next sitting, or to stay informed when inquiry rules change, write to Advocate B.K. Singh.