နိုင်ငံ့ဝန်ထမ်းနည်းဥပဒေများ – Mobile

181. A service personnel who is prosecuted by departmental action shall be allowed to make a defence in accord with the stipulations contained in these rules.

Chapter XVII
Preliminary Enquiry

182. The purpose of the preliminary enquiry is to scrutinize whether there is reasonable ground to take the departmental action against a service personnel or not, to clarify the unclear points of the case, to collect evidence in case a departmental enquiry is to be made and to uncover the person responsible for the case. The preliminary enquiry may be conducted in the following cases:
(a) the case which is necessary to scrutinize whether the complaint has reasonable ground or not;
(b) the case which is necessary to scrutinize which service personnel is responsible and to what extent that person is responsible for the action or omission;
(c) the case which is necessary to scrutinize whether there is evidence or not so that the service personnel may be taken criminal action;
(d) the case which is necessary to enquire whether there is evidence or not that the departmental enquiry may be made against the service personnel;
(e) the case which is necessary to analyze the accounts, the documents and the rules and regulations related to the action or omission of the service personnel before taking any action against him;
(f) the case which the action or omission of the service personnel is just a minor case and decisions may be made only by preliminary enquiry without making departmental enquiry.

183. The preliminary enquiry shall not be made in the following cases:
(a) the case which is obvious that the complaint has no reasonable ground;
(b) the case which has regative contribution to the maintenance of disciplines by making the enquiry;
(c) the case in which the action or omission of the service personnel is just a minor case and the said service personnel admits his guilt;
(d) the case in which there is sufficient facts or evidence and so the departmental enquiry may be initiated from the stage of charge;
(e) the case which is obvious that the service personnel is responsible for any action or omission under the report of audit team and only the departmental enquiry is opened by treating the findings of the audit team as evidence to charge;
(f) the case in which the imposition of only disciplinary penalty is needed in the light of conviction according to criminal action.

184. If it is necessary to make the preliminary enquiry, the head of the relevant Ministry and the service personnel organization may form the Preliminary Enquiry Board and assign duty as prescribed in Form (3) according to the rank of the service personnel who is taken action. To facilitate the formation of the Preliminary Enquiry Board, the authority to form the Preliminary Enquiry Board may be conferred as appropriate according to the service personnel organization. In forming the Preliminary Enquiry Board:
(a) the board shall be comprised with the total number of three members-the chairperson and the other two members. The members of the board shall be superior in rank to the service personnel who is taken action;
(b) if it is necessary to appoint the service personnel from the other organization in the board, it may be done in coordination with the relevant service personnel organization;
(c) the members of the board shall not be the persons who have personal interest in the case, who are directly or indirectly involved in the case, who are personally concerned or who are malicious persons in respect of the case to be enquired;
(d) the order of formation of the Preliminary Enquiry Board shall be sent to the chair person and the members. In such order, the facts to be enquired into shall be described and if necessary, the summary of the case shall be attached. In addition, the relevant documents, accounts and complaint letter, if any, shall be attached. The date on which the Preliminary Enquiry Board has to submit enquiry report shall also be fixed exactly.

185. The Preliminary Enquiry Board:
(a) shall make the enquiry seriously as their main duty;
(b) shall complete the enquiry within the prescribed period;
(c) may inspect the departmental documents and accounts related to the case;
(d) may obtain the explanation of the service personnel under enquiry;
(e) may call and question the service personnel under enquiry;
(f) may call and question the witnesses;
(g) may, if the service personnel under enquiry absconds or refuses to be enquired or fails to appear before the Preliminary Enquiry Board without any sufficient reasons, examine the witnesses in the absence of the said service personnel. The examination of the witnesses in the absence of the accused service personnel shall be recorded systematically in the case with the description of the reasons to do so.

186. The Preliminary Enquiry Board,in carrying out the enquiry:
(a) shall open the case file of the preliminary enquiry;
(b) the chairperson of the Board shall explain the case to be enquired and the duties to be performed by the board in respect of the preliminary enquiry to the members of the board;
(c) shall coordinate procedures with the members in respect of calling witnesses and inspecting related documents and accounts in order to facilitate making preliminary enquiry;
(d) shall, in taking evidence, ask the witnesses after warning to tell the truth. Provided that, they are not asked to take the oath;
(e) shall write, in recording the statement of the witnesses as prescribed in Form (4), name, position, the department or the organization and address if the witness is a service personnel and name, the citizen scrutiny card number, father’s name, occupation and address if the witness is not a service personnel. The statement of the witnesses shall be recorded in writing or with a typewriter or a computer;
(f) the recorded statement shall be read out to the witness. If there are some discrepancies, the statement shall be corrected according to the desire of the witness. If the witness admits the statement given by him, the said witness is asked to sign on the statement. If the witness is unable to sign, the fingerprint of the left thumb has to be taken. The chairperson and the members of the Preliminary Enquiry Board shall sign on the statement of every witness. In the important cases, the fingerprint of the left thumb is also be taken in addition to the signature;
(g) if a witness is unable to appear on the date fixed by the Preliminary Enquiry Board due to a sufficient reason, the witness may be allowed to send his signed written statement to the Preliminary Enquiry Board. The chairperson and members of the board shall sign on such written statement with the comment to attach it in the case file together with the other oral statement taken before the board.

187. In making the preliminary enquiry against the action or omission of the service personnel, if it is just a minor case and the service personnel is obviously found to be guilty, but a suitable disciplinary penalty may be imposed on the service personnel at the stage of preliminary enquiry, the report consisting of the findings of the enquiry, the remarks and the recommendations as prescribed in Form (5) shall, after the preliminary enquiry is made completely, be submitted to the head of organization who has formed the Preliminary Enquiry Board for determination of which penalty be imposed. In such cases, the service personnel shall be allowed the right of defence and the witnesses shall be interrogated in the presence of that service personnel and cross questions shall be allowed.

188. If it is found according to the findings during the course of the preliminary enquiry that the case may not be closed at the stage of preliminary enquiry and is necessary to make the departmental enquiry, it shall be submitted its findings and recommendation to the head of the organization who has formed the Preliminary Enquiry Board so that the departmental enquiry may be proceeded promptly without continuation of the preliminary enquiry.

189. In the case file of the preliminary enquiry, the following documents shall be included:
(a) the order of formation of the Preliminary Enquiry Board;
(b) the documents, accounts and evidence related to the case to be enquired;
(c) daily record of the board;
(d) the explanation of the service personnel who is taken action in the case in which explanation is required;
(e) statements of witnesses in the case in which witnesses are called and examined;
(f) other evidence and documents.

190. The Preliminary Enquiry Board shall submit the report consisting of its findings, remarks and recommendations together with the case file to the relevant head of the organization who has formed the board as prescribed in Form (5).