Category Archives: Departmental Enquiry

Major Punishment – Examination of Witnesses

In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, it was held as under:

          “The Court also held that in the enquiry witnesses have to be examined in support of the allegations and opportunity has to be given to the delinquent to cross – examine these witnesses and to lead evidence in his defense. In Punjab National Bank v. A.I.P.N.B.E. Federation, AIR 1960 SC 160, the Supreme Court held that in such enquiries evidence must be recorded in the presence of the charge-sheeted employee and he must be given an opportunity to rebut the said evidence. The same view was taken in ACC Ltd. v. Their Workmen, 1963 (7) FLR 269, and in Tata Oil Mills Co. Ltd. v. Their Workmen, 1963 (6) FLR 257.

          Even if the employee refuses to participate in the enquiry, the employer cannot straightaway dismiss him, but he must hold an ex-parte enquiry where evidence must be led vide Imperial Tobacco Co. Ltd. v. Its Workmen, 1961 (3) FLR 524 and Uma Shanker v. Registrar, 1992 (65) FLR 674.

          Hon’ble Supreme Court in Roop Singh Negi v. Punjab National Bank, 2009 (120) FLR 610, held as under:

          “Indisputably, a departmental proceeding is a quasi judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding  upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceedings. Not witness was examined to prove the said documents. The management witnesses merely tendered, the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.”

          Similar view has been taken in Sohan Lal v. U.P. Co-operative Federation Ltd., 2013 (139) FLR 723:

          “The principle of law emanates from the above judgments are that initial burden is on the department to prove the charges. In case of procedure adopted for inflicting major penalty, the department must prove the charges by oral evidence also.

          From the perusal of the enquiry report it is demonstrably proved that no oral evidence has been led by the department. When a major punishment is proposed to be passed, the department has to prove the charges against the delinquent/employee by examining the witnesses and by documentary evidence. In the present case, no witness was examined to prove the documents in the proceedings.

          It is trite law that the departmental proceedings are quasi-judicial proceedings. The Inquiry Officer functions as quasi-judicial officer. He is not merely a representative of the department. He has to act as an independent and impartial officer to find out the truth. The major punishment awarded to an employee visits serious consequences and as such the departmental proceedings ought to be in conformity with the principles of natural justice. Even if, an employee prefers not to participate in the enquiry, the department has to establish the charges against the employee by adducing oral as well as documentary evidence. In case the charges warrant major punishment, then the oral evidence by producing the witnesses is necessary.” Lalta Prasad v. State of U.P., 2019 (161) FLR 183.        

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Filed under Major Punishment

Vague Charges – Enquiry Cannot Sustain

Hon’ble Apex Court in Union Of India v. Gyan Chand Chattar, (2009) 12 SCC 78, has clearly held that no enquiry can be sustained on a vague charge. It was held as under:

“An enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving details of the incident which formed the basis of charges. No enquiry can be sustained on vague charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not be perverse or unreasonable, nor the same should be based on conjectures and surmises. There is a distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct.”

It was held in Anant R. Kulkarni v. Y.P. Education Society and others, (2013) 6 SCC 515, that it is absolutely clear that the charge sheet is vague and does not establish any charge, therefore, no enquiry can be proceeded on the basis of that. Tej Singh v. State of U.P., 2018 (3) ESC 1454.

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Filed under Uncategorized, Vague Charges

During an Enquiry – Employee is Entitled to Subsistence Allowance

An employee is entitled to subsistence allowance during an inquiry pending against him or her but if that employee is starved of finances by zero payment, it would be unreasonable to expect the employee to meaningfully participate in a departmental inquiry. Access to justice is a valuable right available to every person, even to a criminal and indeed free legal representation is provided even to a criminal. In the case of a departmental inquiry, the delinquent is at best guilty of a misconduct but that is no ground to deny access to pension (wherever applicable) or subsistence allowance (wherever applicable). UCO Bank v. R.S. Shukla, 2018 (2) ESC 372.

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Filed under Departmental Proceedings, Subsistence Allowance

Departmental Enquiry – Duty of Disciplinary Authority

In Chamoli District Co-operative Bank Ltd. v. Raghunath Singh Rana, (2016) 12 SCC 204, it was held as under:
“(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
(ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer.
(iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him.
(iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”
The principal of law that emanates is that initial burden is on the department to prove the charges. In case where enquiry is initiated with a view to inflict major penalty, department must prove charges by adducing evidence by holding oral enquiry. State of U.P. v. Aditya Prasad Srivastava, (2017) 2 UPLBEC 901.

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Employee – Right to Receive Enquiry Officer’s Report

The Apex Court in the case of Union of India v. Mohd. Ramzan Khan, 1990 (61) FLR 736 and in the case of Managing Director, ECIL v. B. Karunakar, 1993 (67) FLR 1230 has held that where the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report in court before the disciplinary authority arrives at its conclusions with regard to guilt or innocence of the employee with regard to the charges leveled against him. That right is a part of the employee’s right to defend himself against the charges leveled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decisions on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of principles of natural justice. Vijay Kumar Yadav v. State of U.P., 2016 (148) FLR 750.

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Filed under Departmental Proceedings, Enquiry Officer's Report

Disciplinary Proceedings – Against a Retired Employee

In Anant R. Kulkarni v. Y.P. Education Society, 2013 (138) FLR 168 (SC), the Hon’ble Apex Court considered the question as to whether continuation of departmental enquiry is permissible against a retired employee, wherein it was held that enquiry against a retired employee is subject to the statutory rules, which governs the terms and conditions of his service. If the inquiry was initiated while the delinquent employee was in service, it would continue even after his retirement but, nature of punishment would be limited to certain extent and accordingly, punishment of dismissal or removal of the employee from service cannot be imposed on the retired employee. The Hon’ble Supreme Court has categorically ruled that in the absence of any statutory power conferred on the management, to hold a fresh enquiry after the retirement, no such enquiry against the employee could be conducted. In the aforesaid decision, the Apex Court has decided the issue thus:
“Thus, it is evident from the above, that the relevant rules governing the service conditions of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation. Generally, if the enquiry has been initiated while the delinquent employee was in service, it would continue even after his retirement, but nature of punishment would change. The punishment of dismissal/removal from service would not be imposed. S. Andiyannan v. Joint Registrar, Co-operative Societies, 2015 (146) FLR 1079 (FB).

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Filed under Departmental Enquiry, Retired Employee

Departmental Enquiry-Reasonable Opportunity

In cases where there is no oral evidence adduced and documentary evidence is not proved or exhibited by witnesses, it cannot be read into evidence for proving guilt of the employee. It is for this reason that many unscrupulous employer/establishment/department fabricate documents for proving charge against innocent employee and punish him without proving the same, thus denying a reasonable opportunity to him to defend himself. Sita Ram v. State of U.P., 2015 (1) ESC 178.

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Filed under Departmental Enquiry, Employment Law