Tag Archives: Departmental Proceedings

Departmental Enquiries – Cannot be Treated As A Casual Exercise

When a departmental enquiry is conducted against the Government servant, it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The Inquiry Officer has to be totally unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a Government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.

        In Roop Singh Negi v. Punjab National Bank, (2009) 2 SCC 570, it was 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 proceeding. No 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.” Ram Prakash Pal v. Chairman, 2018 (4) AWC 3952.

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Honourable Acquittal

The expression “honourable acquitta” was considered by the Hon’ble Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598. In that case the Hon’ble Court was concerned with a situation where disciplinary proceedings were initiated against a police officer. Criminal case was pending against him under Section 509 IPC and Section 4 of the Eve Teasing Act. He was acquitted in that case because of the non-examination of key witnesses. There was a serious flaw in the conduct of the criminal case. Two material witnesses turned hostile. Referring  to the judgment of the Hon’ble Supreme Court in RBI v. Bhopal Singh Panchal, (1994) 1 SCC 541, wherein in somewhat similar fact situation, the Hon’ble Court upheld a bank’s action of refusing to reinstate an employee in service on the ground that in the criminal case he was acquitted by giving him benefit of doubt and, therefore, it was not an honourable acquittal. It was further held that the High Court was not justified in setting aside the punishment imposed in the departmental proceedings. It was observed that the expressions “honourable acquittal”, “acquitted of blame” and “fully exonerated” are unknown to the Criminal Procedure Code or the Indian Penal Code. They are coined by judicial pronouncements. It is difficult to define what is meant by the expression “honourably acquitted”. The Hon’ble Court expressed that when the accused is acquitted after full consideration of the prosecution case and the prosecution miserably fails to prove the charges leveled against the accused, it can possibly be said that the accused was honorably accused.” State of Madhya Pradesh v. Abhijit Singh Pawar, 2018 (4) ESC 782.

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Powers of District Inspector of Schools – Suspension of Head or a Teacher

An order of suspension of the Head or a Teacher, as the case may be, would become inoperative after lapse of sixty days but would continue to exist though inoperative but would become effective immediately on approval of District Inspector of Schools. In the event of the District Inspector of Schools disapproving the suspension, the order would become non est and would not exist in the eye of law unless the order of disapproval is set aside by the competent court/authority.         The District Inspector of Schools while exercising power under sub-section (7) of Section 16 G of the U.P. Intermediate Education Act acts in a supervisory capacity. He has to record brief reason to accord approval or disapproval to any order of suspension passed by the Management. The District Inspector of Schools has to examine the papers so transmitted but would have no right to address on the merit of the charges, but has only to see on, prima facie basis, as to whether, charges have any substance. The issue in that regard has to be examined in departmental enquiry to be held against the Principal/Teacher. Committee of Management, D.P.S.N. Inter College v. State of U.P., 2018 (5) AWC 4767.

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Power of – Review of Punishment

In Deputy Commissioner v. J. Hussain, (2013) 10 SCC 106, it was held that power of review of punishment ordinarily is not availed by a Court or Tribunal. Court while undertaking judicial review of matter is not supposed to substitute its own opinion on reappraisal of facts. In exercise of power of judicial review, court can interfere with the punishment imposed only when it is found to be totally irrational or is outrageous in defiance of logic. It was further observed “this limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities.” It further observed that it is only when punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. Yogendra Kumar v. Union of India, 2018 (5) AWC 4858.

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Non-Holding of Oral Inquiry – Is a Serious Flaw

In Salahuddin Ansari v. State of U.P., 2008 (3) ESC 1667, it was held that non holding of oral inquiry is a serious flaw which can vitiate the order of disciplinary proceeding including the order or punishment. It was held as under:

        “Non-holding of oral inquiry in such a case, is a serious matter and goes to the root of the case.         In Subhash Chandra Sharma v. Managing Director, 2000 (1) UPLBEC 541, while considering the question as to whether holding of an inquiry is necessary or not, held that if no oral inquiry is held, it amounts to denial of principles of natural justice to the delinquent employee.” Mohan Law Garg v. State of U.P., (2019) 2 UPLBEC 1184.

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Mere Lack of Efficiency and Skill – Does Not Constitute Misconduct

In Shabih Haider v. State of U.P., 2018 (1) ADJ 327 it was held that the order of suspension is not to be passed in a routine manner but the competent authority is required to consider the gravity of the misconduct sought to be enquired into or investigated and the nature of the evidence placed before the appointing authority. The power of the State Government to place Government Servant under suspension is creature of the Statute and/or contract and the decision be taken keeping in view the letter and spirit of the Statute. The power of suspension arises when on an objective consideration the appointing authority is of the view that a formal disciplinary inquiry is expected or is proceeding. It was also held placing reliance on decision of a Five Judge Bench of the Hon’ble Allahabad High Court in State of U.P. v. Jai Sing Dixit, 1974 ALJ 92, that mere lack of efficiency or skill does not ipso facto constitute misconduct and call for suspension of a Government Servant. Vijay Kumar Agarwal v. State of U.P., 2020 (1) AWC 646.

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Criminal and Departmental Proceedings – Have Different Objectives

Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the Prevention of Corruption Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. Karnataka Power Transmission Corporation Ltd. v. C. Nagaraju, (2019) 10 SCC 367.

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Suspension – In contemplation of Enquiry

The purpose of suspension of an employee in service jurisprudence is two fold. The traditional and dominant purpose of suspension is to aid and assist a disciplinary enquiry against an employee. Suspension in such cases is not a punishment. The second known purpose of suspension is to impose it as a punishment.

        When suspension is made in contemplation of a disciplinary enquiry, certain prerequisites have to be satisfied. An enquiry should be contemplated or underway into charges of misconduct. The charges of misconduct, if proved, should be serious enough to warrant a major penalty.

        The order of suspension should be passed after due and independent application of mind. The suspension should not be made as a matter of routine resulting from a suspension syndrome.

        At the stage of suspension the veracity of the charges cannot be ascertained and the merits of the defence cannot be examined. However, the order of suspension should disclose a prima facie act of misconduct.

        Suspension in contemplation of an enquiry, is made to aid the process of enquiry. Suspension takes out the delinquent employee from his domain of influence. This ensures that the enquiry is independent and fair.

        Suspension also takes off the charged employee from his regular duties. This enables the employee to join the enquiry proceedings and give fulsome cooperation to the enquiry officer. It also gives him adequate time to prepare his defense. Continuing the employee on regular duties, with an enquiry on foot, would not be in institutional interests either. The official work would suffer and the enquiry proceedings would be impeded. The suspension in such cases is not a punishment. Deepika Shukla v. State Of U.P., 2018 (6) AWC 6050.

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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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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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