နိုင်ငံ့ဝန်ထမ်းနည်းဥပဒေများ – Mobile

191. In respect of taking action, the head who assigned to make the preliminary enquiry after he and the board had scrutinizing and considering the report submitted by the Preliminary Enquiry Board:
(a) the case may be closed when the service personnel is found innocent;
(b) if the action or the omission of the service personnel is just a minor case and there is no need to take the departmental action in accord with sub-rule (a) of rule 193, the suitable disciplinary penalty may be imposed on the service personnel;
(c) if it is necessary to conduct departmental enquiry under sub-rule (c) of rule 192, the departmental enquiry shall be proceeded promptly;
(d) it shall be prescribed that if the service personnel is not satisfied with the decision, orders or penalties passed by the head of the organization who has formed the Preliminary Enquiry Board, he may appeal against them within six months.

Chapter XVIII
Departmental Enquiry

192. If it is found that a service personnel infringes the following conditions, the departmental enquiry shall be made to enquire and hear the case:
(a) having the sufficient facts or evidence to charge the service personnel;
(b) having responsibility of the relevant service personnel to make an explanation under the report of the audit team;
(c) being found out that the departmental enquiry is needed to be made according to the findings of the preliminary enquiry;
(d) the action or omission of the service personnel is being a case which is punishable with reduction of pay within the pay scale, demotion, removal from a post or dismissal from being a service personnel;
(e) the action or omission of a service personnel who is prosecuted legally is being an abvious case to be a breach of the civil service rules of conduct or disciplines or departmental disciplines;
(f) necessity for consideration whether or not disciplinary proceedings should be taken against the service personnel although he has already been legally convicted by the court;
(g) although the prosecuted service personnel has already been released before charging on the grounds of no sufficient evidence or acquitted on the grounds that he is not found guilty after the charge and trial, being the case involving in the breaking of the civil service rules of conduct or disciplines or failure to fulfill a duty or breach of departmental disciplines by the said service personnel.

193. In respect of departmental enquiry:
(a) if the service personnel is guilty of the action or omission which deserves only a minor penalty which is lower than reduction of pay within the pay scale, demotion, removal from a post or dismissal from being a service personnel, a judgement may be made without making a departmental enquiry and trial. Provided that, if it is considered that there are the facts to be enquired for justice or to be evident legally, the departmental enquiry may be made to enquire and hear the case;
(b) in the case of the service personnel who is sentenced to imprisonment on conviction where only the order of removal from the post or dismissal from the public service needs to be issued, it is unnecessary to make the departmental enquiry.

194. (a) The head of the relevant Ministry and the organization or the head of service personnel organization of the relevant department may, if a departmental enquiry is needed to be made, form and assign the Departmental Enquiry Board as prescribed in Form (6) according to the rank of the service personnel who is taken action.
(b) The authority to form the Departmental Enquiry Board prescribed in the sub-rule (a) may be delegated and conferred as appropriate to facilitate the formation of the board in the service organization as may be necessary.
(c) In forming the Departmental Enquiry Board:
(i) the board shall comprise with the total number of three members – the chairperson and two other members. The members of the board shall not be the persons who are the members of the Preliminary Enquiry Board. In addition,their rank should not be lower than the service personnel who is taken action;
(ii) 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.
(d) The order of formation of the Departmental Enquiry Board shall be sent to the chairperson and the members of the board. The facts to be enquired about the service personnel who is taken action shall be mentioned in the order and the documents, accounts and evidence related to the case, if any, shall also be attached with the order. The date on which the report to be submitted by the Departmental Enquiry Board shall also be specified in the order. In complicated cases, sufficient time for the reporting shall be specified for the completion of the enquiry.
(e) When the original Departmental Enquiry Board is needed to be reformed with new members for any reason, one or two of the members may be replaced or the new board may be reformed and assigned thereto.
(f) In an important case or a case in which specific technical matters are needed to be dealt with, any technician may be appointed as an enquiring officer from the side of the department. Such enquiring officer is only to assist the Departmental Enquiry Board and has no authority to interrogate the witnesses and shall not be involved in decision making of the board.

195. The Departmental Enquiry Board:
(a) shall make the departmental enquiry seriously as their main duty;
(b) shall complete the enquiry within the specified period.
(c) shall charge the service personnel who is taken action as prescribed in Form (7) and allow the service personnel to defend in writing against the charges. Sufficient time shall be given to do it;
(d) when the verbal hearing is conducted, it shall be carried out in the presence of the service personnel and the said personnel shall be given sufficient right to examine as a witness himself, to produce witnesses, and to cross examine to the witnesses.
(e) may examine the departmental documents and accounts related to the case.
(f) may, in receipt of the written statement of the service personnel as prescribed in the Form (8), after scrutinizing the explanation that he is innocent or admission of guilt and, if considered that it is sufficient, prepare a report in accord with sub-rules (a) and (b) of rule 198 and submit without conducting verbal hearing. If considered that it is necessary, the verbal hearing may be conducted in accord with sub-rules (c) and (d) of rule 198;
(g) if the service personnel objects to one or two members of the board or the whole board, may accept or reject this objection in accord with sub-rule (c) of rule 198 after scrutinizing such objection;
(h) in the case where legal matters or accounts or other technical matters have to be dealt with, may allow any lawyer or technician to appear to assist the service personnel who is taken action. No interference or disturbance of such person in the departmental proceedings shall be allowed;
(i) may call and hear the service personnel who is taken action or the witnesses when the verbal hearing is allowed;
(j) may, if the service personnel under enquiry absconds or refuses to be enquired or fails to appear before the Departmental 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 service personnel who is taken action shall be recorded systematically in the casefile with the short description of the reasons to do so;
(k) may amend or add to the original charge or frame a new charge, if necessary, according to the findings during the course of departmental enquiry or the subject matter of the case.

196. When the Departmental Enquiry Board opens the case to enquire, the service personnel who is taken action in accord with rule 197 shall be framed a charge firstly. If not, the departmental enquiry is void.

197. In framing a charge against a service personnel who is taken action, in respect of compliance:
(a) the action or omission of the service personnel who is taken action shall be mentioned exactly and framed a charge. In the case which more than one service personnel are involved, the charge shall be framed separately for each service personnel;
(b) the service personnel shall be asked for a written statement against the charges. The service personnel is given sufficient time for written statement and date to be submitted shall be fixed. Enquiry shall be continued only after receiving the written statement;
(c) in the charge sheet:
(i) one or more charges may include;
(ii) the brief description of the allegations or facts on which each of the charges is based shall be stated obviously so that the accused service personnel can defend against each charge;
(iii) only the major charges shall be stated because if there are many charges in the charge sheet, the case tends to be more complicated and enquiry and hearing of the case may delay;
(iv) it shall be stated that the service personnel is needed to give the explanation in the written statement for each of the charges to indicate whether he is guilty or not, why the departmental disciplinary proceedings should not be instituted against him;
(v) it shall include a question asking service personnel whether or not he desires to make an explanation in person and whether or not he desires to be enquired orally;
(vi) it shall be stated that the enquiry will be made by the Departmental Enquiry Board and who will comprise therein when the oral examination is made and the service personnel may object to one or two or the whole members of the board with sufficient reason if he desires to do so;
(vii) in the case which the service personnel has a previous conviction and it is needed to be taken into consideration, it shall be stated that the previous conviction and its penalty will be taken into consideration in imposition of the penalty if the service personnel is found guilty in the current case. If the service personnel desires to argue that the previous conviction should not be considered in the current case, it shall be stated that he may give the explanation in written statement;
(viii) the date on which the written statement to be submitted to the chairperson of the Departmental Enquiry Board shall be fixed;
(ix) if the service personnel is responsible for more than one action or omission, the charge sheets shall be prepared separately for each action or omission;
(d) the charge sheet shall be sent in advance to the service personnel who is taken action and a copy of the charge sheet shall be attached to the case file.

198. On receipt of the written statement from the service personnel who is taken action, the Departmental Enquiry Board:
(a) shall prepare the report of the board as prescribed in Form (9) and submit it together with the case file to the concerned authority without holding the verbal hearing when the service personnel make an explanation that he is not guilty of the offence mentioned in the charge sheet and if the board considered as the explanation is satisfactory and acceptable. The report shall contain the findings, remarks and recommendations of the board;
(b) shall prepare a report containing the opinion about the penalty which should be imposed on the service personnel as prescribed in Form (9) and submit it together with the case file to the concerned authority without holding verbal hearing, when the service personnel admits his guilt and if the board considered that it is unnecessary to find out any other fact concerning the case;
(c) may proceed verbal hearing when the service personnel does not admit his guilt or even though he admits, the Departmental Enquiry Board thinks that there are still some facts concerning the case to find out or the explanation given by the service personnel is not satisfactory;
(d) may hold verbal hearing when the service personnel states in his written statement of his desire to be enquired in the verbal hearing or when the Departmental Enquiry Board thinks that the verbal hearing needs to be held to find out more facts to make a decision even though he has no desire to be enquired in verbal hearing;
(e) in respect of the objection of the service personnel to the Departmental Enquiry Board:
(i) if the objection is to one of the members of the board, the chairperson and the other member shall scrutinize whether the objection is reasonable or not.
(ii) when scrutinizing the objection under the sub-rule (a) (i) and the Departmental Enquiry Board thinks that it is not reasonable, the board shall submit it to the authority who has formed the board and that authority confirms that it is not reasonable it shall be recorded in the case file and the verbal hearing may be proceeded;
(iii) if the objection is to the chairperson of the board or to both of the members or to the whole board, that objection shall be submitted to the authority who has formed the board to consider it.

199. The verbal hearing shall be held in the presence of the service personnel against whom the action is taken. In verbal hearing, the service personnel shall be given sufficient right to examine as a witness himself, to produce the witnesses and to cross-examine the witnesses.

200. In a verbal hearing:
(a) the witnesses who can give evidence to support the charges shall be examined first and the findings are recorded as prescribed in Form (10). If there is some evidence against the service personnel who is taken action, he is allowed to cross examine the witnesses if he wishes to give an explanation;
(b) then, the service personnel who is taken action is explained the charges and interrogated about them;
(c) if the service personnel who is taken action wishes to be enquired as a witness himself he may be examined as a witness as prescribed in Form (11);
(d) the service personnel who is taken action is asked whether or not there are the witnesses he wants to produce and if so, the list of the names of the witnesses shall be asked for and the arrangement shall be done to be able to examine such witnesses;
(e) if the witnesses who have participated in the preliminary enquiry are needed to re-examine, they may be called upon and examined;
(f) the time shall be fixed for the service personnel who is taken action to make a list of the witnesses he wishes to produce. In receipt of the list, the date shall be fixed for necessary witnesses to be examined, and shall summon them to come to the place where the examination will be done;
(g) if it is not necessary or not appropriate to examine any one of the witnesses in the list produced by the service personnel who is taken action, or if it is assumed that a witness who is impossible to be examined is included in the list with the intention to delay the proceedings, the board may deny to hear such witness. The reasons for the denial shall be recorded in the case file;
(h) among the witnesses who are unable to come on the appointed date, another date shall be fixed for the examination of the major witnesses. If the statements of the witnesses already heard are sufficient, and such witnesses need not to be heard any more, they may be cancelled from the list of witnesses with a description of reasons for that;
(i) in the case where the allowance should be provided to the witnesses, it can be provided at the rate allowed by the court. If the accused service personnel submits a long list of witnesses, he may be asked to deposit the amount of allowance for those witnesses in advance or the witnesses who are not considered necessary may be refused;
(j) if a major witness is unable to come before the departmental enquiry board for a sufficient reason, either the departmental enquiry board or the service personnel who is taken action may send the questions they want to ask in writing and obtain the signed statement of the witness. The statement of the witness shall be read to the service personnel. If there are some evidence in the statement against the service personnel who is taken action and he wishes to ask cross questions, the reply to those questions by the witness may be obtained again in writing;
(k) in obtaining the statement of a witness, the witness is warned to tell only the truth, if he is not asked to take the oath;
(l) in recording the statement of the witnesses, name, position, the department or the office or organization and address shall be recorded if the witness is a service personnel and name, Citizenship Scrutiny Card number, father’s name, occupation and address shall be recorded 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;
(m) the statement shall be read out to the witness. If there are some discrepancies, the statement shall be corrected in accordance with the desire of the witness. If the witness admits that the statement given by him is correct, the said witness is asked to sign on the statement. If the witness is unable to sign, the fingerprint of the left thumb shall be taken. The chairperson and the members of the board shall sign on the statement of every witness. In important cases, the fingerprint of the left thumb may also be taken in addition to the signature.