CHAPTER-III

ENQUIRY OFFICER AND HIS

ROLE IN DOMESTIC ENQUIRY
 86

CHAPTER-III

ENQUIRY OFFICER AND HIS ROLE IN DOMESTIC ENQUIRY

It has been discussed in the preceding pages that when the

explanation to the charge-sheet furnished by the workman is considered
to be unsatisfactory and disciplinary action is called for then further
proceedings for conducting a domestic enquiry into the charge are to be
initiated by appointing an enquiry officer. Another equally important
stage of domestic enquiry is the appointment of enquiry officer and the
service of a formal notice upon the workman about the place, date and
time of the commencement of the domestic enquiry.1

OBJECTION BY WORKMAN TO THE APPOINTMENT OF

ENQUIRY OFFICER:

When an employee, right from the very start, had been making a
grievance about the appointment of the enquiry officer, it would not be
fair to turn down his request, nor it would be fair on the part of the
enquiry officer to proceed with the enquiry when he is told explicitly by
the employee that he does not repose any confidence in him because he is
biased and his appointment as enquiry officer is not acceptable. In such
circumstances, if the employee does not participate in the enquiry, he

H.L.Kumar, Labour Management. Misconducts, charge-sheets and Enquiries, 3ld Edn., 1984,
Metropolitan Book Co., Pvt. Ltd., New Delhi.
would be justified to stay away, and any such exparte enquiry conducted
would definitely be vitiated.2

APPOINTMENT OF ENQUIRY OFFICER :

While making appointment of a person to be the enquiry officer,

the basic principles which are based on the maxim, “Nemo debet esse
judex in propria sua causa” - no man must sit in judgment in his own
cause or in which he is interested - must be kept in view. Even
otherwise, in the administration of justice, public policy requires that a
person to be appointed as enquiry officer must be independent and
unbiased so that the employee proceeded against may have confidence in
him. This is based on two time honoured principles of public policy
namely, (i) that no man should be a judge in his own cause, and (ii) that
justice should not only be done but manifestly and undoubtedly seem to
be done. In other words, if a person is acting judicially, he should be free
from bias, financial or otherwise either in favour or against a party to a
dispute. He should not bring himself to the position where bias can be
reasonably inferred to exist. The public policy demands that he should
have nothing to do with a decision or adjudication. What is true of the
judicial bodies or persons acting in judicial capacity is equally true of
those who are called upon to discharge the quasi-judicial functions such
as the enquiry officers. In fact, an enquiry officer is in the position of a
judge and, therefore, he must not be a personally interested person who is
either directly or indirectly interested in the subject matter of a domestic
enquiry. He should be completely impartial so that he could bring to bear

Manak Lai v. Dr. Prem Chand Singhvi, AIR 1957 SC 425.

 88

an independent judgment in deciding the matter before him.3 Similarly, if

a person is the witness then he should not be appointed to act as enquiry
officer. The reason is that it is not open for a person to depose against an
employee and at the same time to be a judge of the matter. In that case, it
would be impossible for him to disbelieve his own statement himself. In
short, a witness should not be placed in the position of a judge in the
same matter in which he is required to dispose.4 In the same way, no
useful purpose can be served if the enquiry officer is appointed by an
officer who is also the main witness in the enquiry. This shows that the
material should not be appointed to hold enquiry.5 It hardly matters
whether this is done in good faith or whether the truth lay that way,
because the spectacle of a judge hoping on and off the Bench to act first
as judge, then as witness again to determine whether he should believe
himself in preference to another witness is startling to say the least. It
would doubtless delight the heart of a Gilbert and Sullivan comic opera
audience but will hardly inspire public confidence in the fairness and
impartiality of departmental trials and certainly not in the mind of the
employee.6 The two roles cannot obviously be played by one and the
same person and it is futile to suggest that he could, in the circumstances,
keep the scales even.7 In such circumstances, a person appointed to act as
enquiry officer cannot take decision independently, impartially and
unprejudicedly. Similarly, a person having pecuniary interest is totally
disqualified to act as enquiry officer, because pecuniary interest is held to

Nageshwara Rao v. A.P.S.R.T. Corpn., AIR 1969 SC 308.

S. Rangarajan v. Sriryngam Janopakar Bank Ltd., 1962 II LLJ 482, AIR 1963 Mad.76.
Madhiram Bansilal v. D.F.O., Mahna, AIR 1955 pep.172.
State ofU.P v. Mohd. Nooh, AIR 1958 SC 86.
7 Andhra Scientific Co. Ltd., v. Seshagirirao, 1961 II LLJ 117.
 89

be more serious.8 The enquiry can be held either by an outsider, including

a lawyer appointed by the employer for the purpose.9 But the appointment
of a person to act as enquiry officer should not be made in a lighthearted
manner since the entire fabric of the disciplinary proceedings rests on the
findings of the enquiry officer. A lawyer must normally be presumed to
be a man without bias or prejudice as he is trained in law.10 A person is
not disqualified from acting as an enquiry officer at a domestic enquiry
merely because he is the employer’s lawyer who is paid remuneration for
acting as enquiry officer and was previously engaged by the employer to
represent him in industrial adjudication.11 It is a matter of common
knowledge that many employers are not adequately equipped to conduct
an enquiry against an erring employee charged with misconduct. The
employer may be illiterate; even if he is literate, he might be unfamiliar
with the judicial procedure of holding an enquiry, he might be the person
whom the employee had disobeyed and from that point of view the
prosecutor and the judge would be rolled into one: as a consequence, he
might be considered as having a bias against the employee. But none of
these circumstances by its own force can preclude the employer from
holding the enquiry and from discharging the statutory obligations placed
on him.12 This shows that even if the punishing authority acts as enquiry
officer it cannot be said that such an authority is disqualified to hold a
domestic enquiry. But this case should not, however, be construed to
mean that a person who is a main witness in the case can hold the
enquiry. In one case, the manager himself presided over the enquiry,

Mineral Development Ltd. v. State, AIR 1960 SC 469.

Saran Motors (P) Ltd. v. Vishwanath, 1964 II LLJ 139 (SC).
N. Rarichan v. R.K. Nenu Nair (1972), II LLJ 139.
Saran Motors (P) Ltd. v. Vishwanath, 1964 II LLJ 139 (SC).
12 Srirangam Janopakara Bank Ltd. v. Rangarajan, 1964 I LLJ 226 (Mad. HC)
 90

recorded the statements, cross-examined the labourers who were the

offenders. He has made and recorded his own statements recorded by
himself. In other words, the manager did not keep his function as the
enquiry officer distinct but became witness, prosecutor and manager in
turns. It was observed that as a result of this infirmity, the record of the
enquiry has not been recorded properly. This means that the enquiry
should always be entrusted to a person who is not a witness. Where there
is no provision in the standing orders requiring that only a local officer of
the company could be appointed as an enquiry officer then in such a case
the appointment of an officer serving in the company at some other place
as enquiry officer cannot be said to cause prejudice to the employee,
specially when such an officer could be expected to take a more detached
and impartial view of things in comparison with a local officer. This
apart, when the employee does not raise objection to the appointment of
such officer at the initial stage and in fact appears before him in the
course of enquiry and submits to his jurisdiction then also it cannot be
said that the employee was in any way prejudiced on account of such
appointment.13
An enquiry cannot be said to be held properly when the person
holding the enquiry begins to rely on his own statement.14 It, therefore,
follows that while appointing a person as an enquiry officer, it must be
seen that he is not a witness in the matter. The reason is that it would be
impossible for him to disbelieve his own statement. The public policy
also demands that a person who is a complainant or in the capacity of a
principle witness should not hold the domestic enquiry. This is based on
principle that a person cannot both be a judge and a witness. In other
13
Sheo Sampatlal v. State ofU.P. and Ors1953 Lab, IC. 324 (All. HC)
14
Workmen of Lambabari Tea Estate v. Lambabari Tea Estate, 1966 II LLJ 315 (SC).
words, the person who conducts the enquiry proceedings ought not to
have given evidence in that enquiry.15 Persons interested in one party or
the other should not be appointed as enquiry officers and should not, even
formally, take part in the proceedings though in fact it does not influence
the mind of the person who finally decides the case.16 It is a fundamental
principle of justice that the enquiry officer should have an open mind and
should not bias or prejudice against the employee concerned. If this
fundamental principle is not followed while making the appointment of a
person to be enquiry officer then the enquiry held by such a person would
be a farce.17 The requirement to act without bias was recognized even
when it was held that the authority was not acting judicially in the
discharge of his duties.18 The other requirement of a person to be
appointed as enquiry officer is that the person so appointed to act as such
has no personal knowledge in the matter. This means, that the enquiry
must be left to such officers of the employer who are not likely to import
their personal knowledge into the proceedings which they are holding as
enquiry officer. Likewise, a person who is biased against the delinquent
employee should not be appointed as enquiry officer. A biased person is
totally disqualified for conducting a domestic enquiry. The reason is that
a biased man does not hold so much to his opinion as his opinion holds
him. He cannot have an impartial mind and as such may be unworthy as
enquiry officer because bias is an one-sided inclination of mind, for
example prejudice. Even if there is likelihood of his bias the decision or
proceedings by that authority will be vitiated but the likelihood of bias
should be a real likelihood and not a likelihood based on fancy, suspicion

15 Andhra Scientific Co. Ltd. v. Seshagirirao and A nr. 1961 II LLJ III (SC).
16 G. Nageshwara Rao v. Andhra Pradesh State Road Trspt. Corpn. AIR 1959 SC 306.
17 Subharao v. State of Hyderabad, AIR 1957 AP 414.
18 Rex v. Essex Justices, (1927) 2 KB 475.
 92

or a mere surmise. Whether there is or is not a real likelihood of bias

depends upon the circumstances of each case.19 But simply because a
person is employed in the company, it does not mean that he cannot act in
an impartial and upright manner. The reason is that it will always be
easy for a delinquent to defeat a domestic enquiry by making aspersions
against the officer conducting the domestic enquiry of making false
imputations. Mudslinging is an easy pastime. The accusation of bias can
be imputed against any departmental officer when the delinquent finds it
inconvenient for him to face the charges. It is only in cases where the
Court has acceptable materials to infer bias that the Court will lean in
favour of a delinquent, when a charge of bias is made against the enquiry
officer. The exposition of law in the under-noted cases21 make it
abundantly clear that a mere apprehension in the mind of an employee
facing a domestic enquiry of a bald allegation or imputation against the
enquiry officer cannot and will not constitute the element of bias to vitiate
a domestic enquiry.22 Likewise from the circumstance that Mukherji
considered the report of investigation with a view to find out if there was
material for framing charges and prepared draft charges, it cannot
possibly be said that Shri Mukherji, when he was later appointed as
enquiry officer constituted himself both as prosecutor and judge. Any
body who is familiar with the working of criminal courts will at once
realize that there is nothing strange in the same Magistrate having found a
prima facie case and frames the charges, trying the case also. It cannot
for a moment be argued that the Magistrate having found a prima facie
case at an earlier stage and framed charges is incompetent to try the case,

!9 Bakhtawar Singh v. State ofPunjab, AIR 1971 P and H 220.

20 Associated Cement Company Ltd. v. Abdul Gaffar and Am. 1980 Lab. I.C. 683 (Raj. HC).
21 Supdt. Kaliyar Estate v. O.Kuriakko, 1971 I LLJ 831.
22 G. Ravindran Nair v. Chairman, Cochin Port Trust, 1979 I LLJ 94 (Keral HC).
 93

after framing charges. This cannot be a circumstance to substantiate the

allegation of apprehension of bias on the part of the enquiry officer. 23 A
domestic enquiry has to be conducted by a person who is employed in the
company. Simply because a person is employed in the company, it does
not mean that he cannot act in an impartial and upright manner.24

PRE-REQUISITES OF A PERSON TO BE AN ENQUIRY

OFFICER:

The first and foremost pre-requisite of a person to be an enquiry

officer is that he should be properly and duly authorized by the competent
authority to hold a domestic enquiry into the charges alleged against an
employee. In other words an enquiry will be vitiated if it is held by a
person who has not been specifically authorized to act as such. The
next prerequisite of a person to act as enquiry officer is that he should be
absolutely free from all kinds of bias, economic or otherwise.26 If a
subordinate officer is permitted to act without authority then it will have
the effect of forcing the hands of disciplinary authority or forestalling its
decision and the disciplinary authority would be placed in an
embarrassing situation and the delinquent employee cannot have the
confidence or assurance that his case has been considered before
requiring him to go through the harassment of the gamut of formal
departmental enquiry.27 For the sake of enquiry and justice it is desirable
that the enquiry officer should be an independent authority with an open
mind and without bias, having no connection with the case, or having
any previous knowledge of the case. In other words, the pre-requisite of

23 Sunil Kumar Banerji v. State ofW.B., AIR 1980 SC 1170-1980 Lab. I.C. 654.
24 Associated Cement Company Ltd. v. Abdul Gaffar and Am. 1980 Lab. I.C. 683 (Raj. HC).
25 Ramnetra v. D.S.P. 1966 I LLJ 63 (HP. HC).
26 Associated Cement Company Ltd. v. ATheir Workmen, 1963. II LLJ 396 (SC)
27 Shardul Singh v. State ofM.P., 1968 II LLJ 274.
 94

a person to be enquiry officer is that he must be a responsible officer of

high status commanding respect from the employees.28 It is, therefore, of
utmost importance in a domestic enquiry that it should be conducted by a
person who could not be interested in any way directly or indirectly and
who must be indifferent between the parties. He must be in a position to
act impartially, objectively and fairly and an enquiry held by a person so
disqualified is not a fair enquiry. This shows that the selection of an
enquiry officer should not be made in a light-hearted manner since the
entire fabric of the disciplinary proceedings rests on the findings of the
enquiry officer. It therefore, follows that one of the pre-requisites of a
person to act, as enquiry officer is that he should not be a witness in that
matter, because otherwise it would be impossible for him to disbelieve his
own statement. The public policy also demands that a person who is a
complainant or in the capacity of a principal witness should not hold the
enquiry proceedings. An enquiry officer cannot both be a judge and a
witness. In other words, the person who conducts the enquiry
proceedings ought not to have given evidence in that enquiry.30 But this
should not be construed to mean that the enquiry is vitiated because the
prosecutor is the judge unless the punishing authority is personally
interested in the matter.31 The reason is that the requirements of natural
justice should also be considered in the light of the provisions of the
relevant Acts.32 When the rules provide that an authority competent to
impose penalty shall appoint an enquiry officer superior in rank to the
person on whom the penalty is proposed to be imposed then it cannot be

Saran Motors (P) Ltd. v. Vishwanatlt, 1964 II LLJ 139 (SC).

Saran Motors (P) Ltd. v. Vishwanath, 1964 II LLJ 139 (SC).
Andhra Scientific Co. Ltd. v. Sesfiagirirao and Anr. 1961 II LLJ III (SC).
N.V. Nair Govt, of Kerala, AIR 1962 Ker. 43.
V.R.Arunachalam Palai v. Revenue Civil Officer, 1968 I LLJ 776 (Mad. HC)
 95

said that no specific authority is required by the enquiry officer for

holding enquiry or initiating proceedings against an employee. The next
requirement of a person to act as enquiry officer is that he should have no
personal knowledge in the matter. In other words, the enquiry must be left
to such officers of the employer who are not likely to import their
personal knowledge into the proceedings which they are holding as
enquiry officers. Similarly, a person who is biased against the charge-
sheeted employee should not be asked to hold the domestic enquiry. In
other words, a biased person is totally disqualified for conducting a
domestic enquiry. The reason is that a biased man does not hold so much
to his opinion as his opinion holds him. He cannot have an impartial
mind and as such may be unworthy as an enquiry officer because bias is
an one-sided inclination of mind, for example prejudice.33 Even if there is
likelihood of bias the decision or proceedings by that authority will be
vitiated but the likelihood of bias should be a real likelihood and not a
likelihood based on fancy, suspicion or a mere surmise. Whether there is
or is not a real likelihood of bias depends upon the circumstances of each
case. 34
To summarise, the pre-requisites of a person to act as enquiry
officer are the following :
1. The appointment of the enquiry officer should be
made by an authority competent to take
disciplinary action against the workman
concerned.

2. Before making the appointment of a person to act

as enquiry officer it must be seen that he is a
person with open mind, a mind which is not biased
against the workman concerned.
33 Hareram Samcmta v. Supdt. of Police, 1961 (3) FLR 274 (Cal. HC).
34 Bakhtawar Singh v. State of Punjab, AIR 1971 P and H 220.
 96

3. A person to be enquiry officer must be a

responsible officer of high status commanding
respect from the workmen. In short, he should not
be judge in his own cause.35

4. A person having personal knowledge is

disqualified to act as enquiry officer. In other
words, the enquiry must not be entrusted to a
person who had himself witnessed the alleged
incident.

5. A biased person is also totally disqualified to

conduct a domestic enquiry.

In order to decide as to which authority is competent to initiate

enquiry, the substantive appointment of a person is more relevant than his
temporary appointment. Where, there are standing orders relating to
appointment of enquiry officer then they may be followed strictly. In one
case, the standing orders provided that the Deputy General Manager may
order such enquiry as he thinks fit but where punishment of dismissal is
involved then he shall hold independent enquiry and pass orders. It was
held that the Divisional Controller was not competent to hold the enquiry
even though he may be equal in rank to the Deputy General Manager. '
But it does not mean that the person or authority competent to hold the
enquiry cannot delegate the function of holding enquiry to any other-
person or to an outsider or to a practicing advocate. When such functions
are delegated then the workmen are not entitled to complain against
this.38 In one case, where the manager was himself a witness to the
occurrence, he appointed an outsider as enquiry officer and the enquiry
conducted by such outsider was held to be in order. It may, however, be

A.K.Kraipak v. U.O.I., AIR 1970 SC 150.

T.C.. Kotwal v. State ofJ. & K., AIR 1967 J & K 98.
Devraj (Jrs v. General Manager, Mysore State Road Trspt. Corporatin, AIR 1969 Mys. 225
38
Syidharan Motor Services v. IT. Madras, 15 FLR 270 (Mad. HC).
 97

kept in mind that the person conducting the enquiry is not subordinate to
the officer who is a witness to it. But there is no assumption that enquiry
officer being an employee of the management is bound to decide the case
in its favour. As already stated above, in some cases, an objection is
taken that one of the witnesses before the enquiry officer is a superior
officer and since the enquiry officer could hardly disbelieve his own
superior deposing against the delinquent, he is prejudiced. The
appointment of such a person may generally be avoided. Similarly, the
presence of a senior officer in the enquiry is likely to influence the
management’s witnesses, particularly when a junior person is appointed
to hold the enquiry and, therefore, this may also be avoided. Where,
however, if the officer whose presence is objected to is junior to the
enquiry officer then naturally it cannot be said that his presence would
influence the enquiry officer.40 When an enquiry officer is to be changed
then another officer should be appointed as enquiry officer in
supersession of the previous one. If it is not done then the officer
appointed as such in place of the previous one cannot act as enquiry
officer and give his report on the basis of evidence recorded by the earlier
officer. But in case the successor enquiry officer is appointed in
supersession of the previous one then the successor enquiry officer can
rely on the evidence recorded by his predecessor and in that eventuality it
cannot be contended that this will vitiate the principles of natural justice
because he did not observe the demeanour of witnesses.

Delhi Cloth & General Mills v. Labour Court, 1970 I LLJ 23 (SC).
Sexby and Farmer (India) Pvt. Ltd. v. I.T., 1962 II LLJ 52 (Cal HC).
 98

PRESENTING OFFICER AND HIS ROLE :

The Management may depute another officer of the Company to

present the case on its behalf before the enquiry officer. The officer so
engaged is called the ‘Presenting Officer’. He acts as the representative
of the Company or Undertaking, etc. He has the authority to adduce all
relevant evidence, documentary and oral in support of the charge or
charges framed against the employee. He has a right to cross-examine
the accused employee as well as the defence witnesses with a view to
establishing the charge.
In order to ensure impartiality of the enquiry officer, it is desirable
that a representative of the Company (Presenting Officer) should conduct
the examination of prosecution witnesses and cross-examination of
defence witnesses, etc. But he must not start interrogating or cross-
examine the defendant or the defence witnesses in the first instance. He
has no authority to dictate what procedure should be followed in the
enquiry. He should abide by the ruling given by the enquiry officer.
There is no bar to the complainant to be appointed as presenting
officer by the management. When the victim complained to the personal
officer and he made the complaint to management and an enquiry was
held, the said personal officer can be appointed as the presenting officer
by the management and it cannot be contended that his presence
intimidated the witnesses. His position was that of a complainant when
he made complaint and in domestic enquiry his position is that of an
advocate.41

41
N.N.Rao v, Greaves Cotton Sc Co. Ltd. (1973)1 LLJ 81 (Bom.)
 99

There is no legal requirement for appointment of a presenting

officer and the enquiry cannot be set aside only on the ground that no
presenting officer was appointed. If the Tribunal set aside the enquiry on
the ground that the enquiry officer played the role of presenting officer,
then it should refer to the questions asked by the enquiry officer and give
reasons stating that the questions asked were not by way of clarification
and he virtually acted as both enquiry officer and presenting officer.42
It is held that it is not mandatory for the management to appoint a
presenting officer. When no presenting officer is appointed, it is the
practice that the management sends his witnesses to the enquiry officer
and they give their statement and the worker or his representative cross-
examines them. The worker’s witnesses are examined by the worker
himself and if any clarification is necessary then they are asked by the
enquiry officer. This procedure cannot be held to be illegal. But
objection is sometimes raised that enquiry is vitiated on the ground that
the enquiry officer is performing the dual role of enquiry officer and
prosecutor. But such objection cannot be accepted by Industrial Tribunal
if the enquiry officer does not cross-examine the witnesses for the
defence and only puts questions by way of clarification.

NOTICE OF ENQUIRY :

Notice of holding enquiry is intended to communicate to workman

against whom the domestic enquiry is proposed to be held. The name of
the enquiry officer, date, time and place of the enquiry are the essential
ingredients of the notice of enquiry. Such a notice is the foundation of
the enquiry proceedings and so, care should be taken to see that it is duly

42 Bharat Electronics Ltd. v. K.Kashi (1986) I LLJ 812.

communicated to the workman and he is informed about the date, time
and place of the commencement of the domestic enquiry proceedings.
This notice must be served on the employee sufficiently in advance of the
date fixed for holding the enquiry. In other words, it is necessary to see
before proceeding with the enquiry that the workman is told as to when
the enquiry is going to be held so that he has an opportunity to prepare
himself to make his defence and to collect such evidence as he may wish
to adduce in support of his defence. It would not be proper that the
workman should be called on any day without previous intimation and
the enquiry should begin straight-away. In one case, when before the
enquiry, the workman was not informed of the date of the enquiry, the
enquiry was held vitiated for non-compliance with the rules of natural
justice.43 This shows that it would not be right to call the workman on
any day and begin the enquiry straight-away without giving him notice in
advance of the day of commencement of the enquiry. Such a course
should ordinarily be avoided in order that it could not be said that the
enquiry was not fair. Even when the workman fails to submit his
explanation to the charge-sheet, it does not mean further opportunity
should not be given to him. The reason is that a workman has right at
different stages of the proceedings and his default at one stage will not
take away his right to cross-examine the witnesses which is altogether a
different stage.44 If there is a provision in the standing orders to that
effect then that must be observed. When under the standing orders it is
the function of the management to serve notice and to inform the
workman verbally in the presence of a witness the date and time at which
the enquiry into his alleged misconduct is to be held then it cannot be said

43 Associated Cement Cos. Ltd. v. Workman, 1963 II LLJ 396 (SC).

44 Puranchandradas v. Chairman, State Trspt. Authority, 1970 Lab. I.C. 47: AIR 1970 Ori. 1.
 101

that the enquiry officer assumes the function of a judge and it is for him
to fix a date and time for the enquiry and to inform both the parties about
the same because this duty is cast upon the management under the
standing orders.45 So, what is required in a domestic enquiry is that due
notice should be given to the workman charged as to the date, time and
place of the enquiry. If the workmen refuse to participate in the enquiry
in spite of due notice then it is open to the management to conduct the
proceedings of a domestic enquiry ex-parte and come to its own
conclusions as regards the guilt of the workman concerned. In such a
case it would not be open to the workmen to contend that the enquiry was
not fair or impartial or that any principle of natural justice was violated
merely because they did not have the opportunity of presenting their
defence against the charges.46 But before proceeding to hold the enquiry
ex-parte, all possible efforts should be made for service of the notice of
enquiry and if the service of the notice could not be possible, it is
desirable that publication of the notice be made on notice board as well as
in some newspaper, having wide local circulation and it is only when
possible and reasonable means to reach up to the employee fail or that he
himself either deliberately or willfully refuses to accept delivery of the
notice that the employer has a right to hold an ex-parte enquiry.

ROLE OF ENQUIRY OFFICER :

The main function of enquiry officer is to appreciate the evidence.

Before a judicial authority both parties lead their evidence and the
evidence of one party is generally bound to be inconsistent with the

45
Goodyear (India) Ltd. v. I.T. Haryana, 1969 I LLJ 150 (P&H- HC)
46
Laxrni Devi Sugar Mills Ltd. v. Ram Swarup & Ors. 1957 1 LLJ 17 (SC).
 102

evidence led by the other party. In case of such inconsistent evidence the
enquiry officer is required to decide as to which evidence should be
believed or disbelieved and for what reasons, which is generally called
appreciation of evidence. It should be kept in mind that before the
enquiry officer is required to appreciate evidence there must be
inconsistent evidence admissible as well as relevant. In case the evidence
of one party is neither admissible nor relevant then it amounts to no
evidence at all and, therefore, there can be no question of appreciating the
evidence in such circumstances. What evidence is relevant or admissible
has been dealt with by the author. The appreciation of evidence is also
affected by burden of proof and certain assumptions applicable to the
case which are also dealt with in that chapter. In the present chapter we
intend to deal with some general rules evolved by judicial and quasi-
judicial authorities for evaluating evidence and the standard of proof
required in departmental enquiries.

STANDARD OF PROOF IN DEPARTMENTAL ENQUIRY:

(a) The standard of proof in a departmental enquiry is not that of

a criminal court:

The standard of proof in a criminal court is that the offence should

not be deemed to be established unless it is proved beyond
reasonable doubt to the satisfaction of the court. The standard is
not applicable to departmental enquiries and if the standard
applicable in criminal courts is not applied by departmental
authorities in appreciating the evidence then the departmental
enquiry cannot be held to be invalid.47 The statement of proof

47 State ofAndhra Pradesh v. Shri Ramarao, AIR 1963 SC 1723.

 requiring in the domestic enquires is that of preponderance not
proof beyond reasonable doubt.48

(b) The enquiry officer should not hold any one guilty of the
charge on suspicion:

It is now well established that though technical rules which govern

trial in criminal courts do not apply to disciplinary proceedings yet
even in departmental enquiries scrupulous care should be taken to
see that innocent persons are not punished. This principle applies
to regular criminal court trials as well as to disciplinary enquiries
held under statutory rules. On account of this, a mere suspicion
should not be allowed to take the place of proof even in domestic
enquiries.49

(c) No one can be held guilty on the basis of mere surmises:

It is also well established that the enquiry officer cannot give its
finding on assumptions of facts and circumstances not supported
by any evidence on record.50 Surmises means that although there is
no evidence on certain points but the point is deemed to exist on
account of certain assumptions and thereby the mind is prone to fill
a gap in the evidence for which there is no justification.

(d) Some instances where evidence is held to be insufficient on the

ground that the decision is based on suspicions or surmises:
The most common defect in judgment arises when in case of
circumstantial evidence, the missing link is assumed to exist and
some of the instances are as under:

Mahindra & Mahinder Ltd. v. Suni Yeshwant Pundit Shri P.S. Narkar, Bombay HC DB 2006
(II) LLJ 3363.
Union of India v. Gael, AIR 1964 SC 364.
50
Ajit Radio Corporation v.Ramchandra Dinkar, (Mah Gaz., dt.23.10.1969, p.5219 (IT).
 104

“Some acts are misconduct only when they are

dishonest or intentional. The dishonesty or
intention cannot be assumed unless there are
sufficient circumstances to show the same. When a
conductor issued a half anna ticket instead of one
anna then it may be due to negligence or
dishonesty. In the absence of any additional
circumstances such as involvement of conductor in
similar cases before there can be no inference of
dishonesty.51”

(e) Direct evidence and circumstantial evidence:

The evidence is generally classified as direct evidence and

circumstantial evidence. Direct evidence is the evidence of eye­
witnesses who have purported to have witnessed the incident for
which a delinquent employee has been charged. In case of such
direct evidence the enquiry officer is required to decide whether
evidence is believable or not. The question of insufficiency of
evidence hardly arises because if only one witness is believed then
the enquiry officer can pass a decision on the basis of his
testimony.

(f) When the charge can be said to be established by

circumstantial evidence:

In case of direct evidence there is not much scope of the enquiry

officer acting merely on suspicion or surmises though there may be
scope of deciding whether the evidence is trustworthy or not. But
in case of circumstantial evidence there is much scope of coming to
a decision that a delinquent is guilty even though the circumstances
are not sufficient to give rise to a reasonable inference that the

51 Sadasiv Vishnu Malgaonkar v. Genl. Manager, B.E.S.T. Undertaking, 1954 ICR 1027 (SC).
 105

delinquent is guilty and therefore, it is very necessary to understand

the mode of evaluating the circumstantial evidence.

GUIDELINES FOR EVALUATING EVIDENCE :

(a) In evaluating evidence the probabilities must be considered:

In criminal trial the basic principle of assessing evidence is that the

probability should be given preference to possibility, unless the
possibility is supported by irreproachable evidence. The weight
which is to be attached to the testimony of the witness depends in a
large measure upon various considerations, some of which are that
on the face of it, his evidence should be in consonance with the
probabilities and consistent with other evidence and should
generally fit in with material details of the case as to carry
conviction of truth to a prudent mind.53

(b) Departmental officers are best judges of the merits of the work:

When an officer is a technical expert then his opinion regarding

suitability of an employee should not be ignored and the Tribunal
should not interfere.54 When the matter relates to the day to day
working of the factory machines and the officer-in-charge is best
judge to see whether the proper quality has been produced or not
then his judgment that the workman was guilty of negligence
should not be interfered with in the absence of mala fide motive.5"
In one case there were serious mistakes in the work of an employee

52 Bharosey v.State. AIR 1955 NOC 5287 (All.)

53 State & Kaluram Nannilal v. Lakslimi Kant AIR 1956 NOC 1508 All.
54 A very Co. of India Private Ltd. v Workmen, (Cal. Gaz., Part I-C, dt.4.2.1965, p.99 (IT))
55 Ram Sarup v Birla Cotton Spg. & Wvg. Mills Ltd. Delhi. (Delhi Gaz., Part IV, dt.28.3.1957.
p. 138(IT).
 06

and according to the opinion of the editor he was found guilty of

shoddy and careless work on account of which it was not in the
interest of the employer to keep him any longer in service.

(c) The charge against a delinquent should not be deemed to be

proved by weakness of the defence :

It is an established principle in criminal courts that the proof of a

case against an accused must depend upon positive and affirmative
evidence of guilt given by the prosecution and not on the absence
of explanation on the part of the delinquent employee.56 Even if an
accused puts up a defence and the defence theory appears to be
unreasonable or was not established then the accused can not be
held to be guilty merely no account of the fact.57 The court need
not look to the defence evidence until the prosecution has proved
co
his case. Once the petitioner retracted from his statement a
regular enquiry is required to be held.59

(d) It is not necessary to prove motive:

The union argued that no motive has been assigned by the

company for the acts of violence to the workmen. The argument
cuts both ways.60 Similarly, when the evidence of a witness is not
convincing it is necessary to consider as to why the witness would
make a wrong statement against a particular person but if the
motive for making wrong statement is not found out that would not

Sapattar Singh v. State, AIR 1953 All 136.

Darucappa v. State of Mysore, AIR 1956 Mys. 40.
Maharaj Bux v. Rex, AIR 1952 All 433.
Naresh Chandra Verrna v. National Hydro Electric Power Corporation Ltd. and others, 200S
Lah.b I.C. 505, Himachal Pradesh H.C.
60
Kamarhatti Co. Ltd. v. Workmen (Cal Gaz., dt.8.10.1964, p.743 (IT)).
 107

make the evidence trustworthy if otherwise the evidence is false

and contradictory.61

(e) When it is necessary to prove intention:

Under the standing orders that theft, fraud or dishonesty in

connection with the employers’ business or property were
misconduct. The gravemen of the charge is dishonest intention.
Taking the medicines of the mills without permission does not by
itself amount to dishonesty. When the Medical Officer is equipped
with medical bag and necessary instruments, he was expected to
carry the medicines required for emergency and first-aid in the
same bag.62

SPECIAL CONSIDERATION OF THE EVIDENCE OF SOME

TYPES OF WITNESS :

(a) Appreciation of the evidence of chance witnesses:

In one case it was held that while the head jobber and weaving
supervisor are responsible witnesses, the witnesses produced by the
worker were only chance witnesses and therefore, it is difficult to
rely on them.63 A chance witness is a witness who should not
normally be where and when he professes to have been. From that
point of view one may be a chance witness even at one’s own
house if, for instance, one should at that hour have been in one’s
office, and even a nomad in the desert of Sahara may not be a
chance witness if his being there and then was on his itinerary.

Repanna Naganna, In re AIR 1961 AP 70.

V. V.Kaore (Dr.) v. Model Mills Ltd., 1974 ICR 460 (IC).
Maganlal Dahyabhai v. Navars Cotton and Silk Mills Co. Ltd., 1956 ICR 840 (1C Bom.)
 108

(b) A witness is not unreliable because he is partisan:

In departmental enquires in employment the witnesses produced by

the department are generally the officers and the witnesses
produced in defence are generally the co-workers. It is often
pleaded that the evidence of officers in support of the version of
department or the employer is unbelievable since the officers have
to toe the line of department. Similarly, it is sometimes pleaded
that the statements of defence witnesses are not trustworthy since
the witnesses are the co-workers. Delinquent requesting
summoning of witnesses has to show that witnesses has something
to do with the issue involved.64

(c) An interested witness is also a competent witness:

An interested witness is different from partisan witness. The

partisan witness is a witness who is inclined towards one of the
parties to the case. An interested witness is a person who has got
some definite interest in one party or the other. The mere fact that
a witness has supported a particular party does not make him an
interested witness. It is undoubtedly an irrelevant circumstance
and in each case the evidence has to be evaluated on its own worth
in the background of all relevant surrounding circumstances.65

(d) Whether an accomplice witness is a competent witness ?

An accomplice means a partner in crime or an associate in guilt.

The word ‘accomplice’ means an associate or partner who is in
some way or the other connected with the offence or misconduct.66

64
Naresh Govind Vaze v Govt, of Maharastra and Others,2008 Lab. IC 757 S.C.
65
Pirathisingh v. Ajab Singh, AIR 1965 Punj. 463.
66 Jagannath v. Emperor, AIR 1942 Oudh 221.
 109

The word ‘accomplice’ also includes an accessory after or before

the incident.67 The accomplice is different from a spy although he
may also enter the conspiracy for the apparent puipose of
committing the crime. The reason is that the spy is an agent of
prosecution and his association with the conspiracy or the crime is
for the sole purpose of detecting and disclosing it and bringing the
offenders to justice.

(e) Whether a trap witness is accomplice and his evidence requires

corroboration ?
Trap witnesses mean the witnesses who come to the delinquent to
offer bribe after informing the police or other authorities so that
such a delinquent may be caught at once at the time when the bribe
is given to him. There are two kinds of traps, a “legitimate trap”
where the offence has already been bom and is in its course, and an
“illegitimate trap” where the offence has not yet been bom and a
temptation is offered to see whether an offence would be
committed by an officer succumbing to it, or not.

(f) Whether confession of an accused can be used against co­

accused:

Section 30 of the Indian Evidence Act, 1872 provides that when

more than one person are being tried jointly for the same offence
and when a confession of one person affecting himself and some
co-accused is proved then such a confession may be taken into
consideration against that person as well as against co-accused.
This shows that under the Indian Evidence Act before a confession
of one person can be used against co-accused two conditions are

67
Ismail v.Emperor, AIR 1947 Lab 320.
 necessary. The first is that both the persons must be tried in the
same proceedings and the second is that the confession must
implicate the makers thereof.

RULES REGARDING APPRECIATION OF ORAL TESTIMONY :

(a) Inconsistency in evidence.

Sometimes, the witnesses produced by a part give inconsistent
statements and the question arises as to what extent such
inconsistency weakens the case of either prosecution or defence.
If the statements made by two witnesses called by the same party
are inconsistent then naturally the value of such evidence is
lowered. The reason is that in case of two inconsistent statements
one is necessarily a false statement and, therefore, it is difficult for
the enquiry officer to place implicit reliance without further probe
into the matter on any of the inconsistent statements.

(b) Whether evidence of a witness can be believed in part ?

There is an old legal maxim ‘falsus in uno, falsus in omnibus'

which means that if the deposition of a witness is false in one part
then it is also false in other parts generally. The doctrine is not
accepted as correct by Indian courts.68 The doctrine does not
occupy the status of a rule of law. It is merely a rule of caution. If
one part of the evidence is disbelieved the judges can act on the
rest of the testimony if it inspires complete reliance.69

Bir Bahadur v. State, AIR 1956 Ass. 15.

Jagdish v. State, AIR 1967 All 532.
 Ill

(c) Demeanour of witnesses :

Sometimes the demeanour of witnesses is taken into account in

appreciating the statements made by them. The look or manner of a
witness while in the witness-box, his hesitation and doubts or
confidence and calmness and similar facts can be observed. But it
is a salutary rule that facts should immediately be placed on record
though the omission may be immaterial when judgment is given
after a few days when the demeanour of witness is fresh in his
mind.70

(d) Contradictory statements of the same witness :

Ordinarily if a witness makes one statement at one stage of the

proceedings and a different statement at another stage of the
proceedings then in the absence of any reasonable explanation as to
why he is making two absolutely contradictory statements the
proper course would be to reject the evidence of such a witness.71
When the worker gave one explanation of the wound on the head
of jobber before the Enquiry Officer and another explanation
before the Labour Court then such inconsistent statements are not
explained in a reasonable manner and appears to have been made
deliberately and motivated by improper ulterior considerations, the
witnesses run the risk of getting their statements completely
79
discredited.

S.R. Venkatarama Iyer v. State ofAndhra Pradesh, AIR 1957 AP 441.

Dhaneshwara Thakur v. State, AIR 1958 Pat 412.
Jiwanram v. State, AIR 1965 Raj 32.
(e) Credit of a witness does not depend upon status :

Truthfulness is not the monopoly of persons who are rich and who
hold high status. No such generalization either way is permissible
and want of riches or of status on the part of witness can have no
bearing on his creditability and reliance. The credit of a witness
can be said to have been shaken only if it can be shown that he is
not a man of veracity and that he is of bad moral character. A
black-marketer is not necessarily untruthful nor a non-black-
marketer necessarily a man of veracity.74

(f) It is not necessary that the incident should be proved by more

than one witness :

Section 134 of the Indian Evidence Act, 1872 provides that no

particular number of witnesses shall in any case be required for the
proof of any fact. This shows that in civil and criminal cases the
court is competent to act upon the testimony of a single witness.75
The reason is that the evidence has to be weighed and not counted
and the qualitative character of the evidence is more important than
Hfi
its quantitative character.

(g) A witness cannot be disbelieved on the ground of inconsistency

with his previous statement unless he has been given a chance
to explain the same :

The general principle is that if a witness is sought to be disbelieved

on account of his inconsistent statement then that statement should
be put to him and he must be given opportunity to explain the

Deonath Dudhnath v. State, AIR 1967 Bom.l.

Chari v. State, AIR 1959 All 149.
Nemai v. State of West Bengal, AIR 1956 Cal. 194.
76
Rama v. State, AIR 1969 Goa, Daman and Diu 116.
 113

same, otherwise he cannot be disbelieved on the ground of the said

inconsistency. This principle is laid down in Section 145 of the
Indian Evidence Act in the following words:
“A witness may be cross-examined as to previous
statement made by him in writing or reduced into
writing, and relevant to matters in questions,
without such writing being shown to him or being
proved; but, if it is intended to contradict him by
the writing, his attention must before the writing
can be proved, be called to those parts of it which
are to be used for the purpose of contradicting
him.”

INTERPRETATION OF DOCUMENTS :

The evidence produced before the enquiry officer consists both of

oral evidence as well as documentary evidence. In case of documentary
evidence the enquiry officer should bear in mind that the interpretation of
a document is a question of law and there can be no estoppels in such
case. 77

WHETHER THE ADMISSION OF AN ADVOCATE IS BINDING

UPON AN ACCUSED PERSON ?

It is evident that the role that a defence lawyer plays in a criminal

trial is that of assisting the accused in defending his case. The lawyer has
no implied authority to admit the guilt or facts incriminating the accused.
The suggestion put by the lawyer of the accused in the cross-
examinations of the prosecution witnesses does not amount to an
admission under Section 18 of the Indian Evidence Act, 1872.78

77
Sudesh Kumar v. Mulchand, AIR 1959 Raj 22.
78
Koli Trikam Jivraj v. State of Gujarat, AIR 1969 Guj 69;
NECESSITY TO GIVE REASONED REPORT :

(a) Enquiry is vitiated in the absence of enquiry report.

After the enquiry is completed it is essential for the enquiry officer

to submit his report and if the enquiry officer is not the punishing
authority then the report must be duly considered by the punishing
authority. If the enquiry report is not supported at any stage prior to
imposition of penalty it is violative of Rule 15(10) of Orissa Civil
Service Conduct (CA) Rule.79 It cannot be contended that once
evidence is recorded, the employer can straight away pass an order
of dismissal which will imply that the charges framed against the
employ had been proved. The reasons is that the validity of the
enquiry proceedings depends upon the fact that to conclusion of the
enquiry officer is not perverse and there is no basic error in the
approach adopted by him and it will not be possible to find out
whether the enquiry did not suffer from the above defects if it is
not known how the enquiry officer approached the question and
what were the grounds on which he based his decision. If the
enquiry report does not contain the articles of charge, the list of
witnesses and exhibits on behalf of the respective parties, summary
of the evidence, a discussion of the points raised by the applicant
and the reasons for the rejecting the defence, a discussion of points
raised by the applicant and the reasons for rejecting the defence
version. The enquiry report is not report at all. In absence of
81
evidence no liability could be fastened on the petitioner.

79 Bhagat Singh v. State of Orissa (1981) 1 ATT (OAT) 320.

80 Ghanasadyan v. U.O.11996(2) ATT (CAT) 153.
81 Ananda Ch. Prusty v. OMC'Ltd. and another 81 (1996) CLT 894.
 115

(b) Quasi-judicial authority should decide a matter in his

individual decision alone.

It is one of the attributes of judicial or quasi-judicial proceedings

that the officer entrusted with such functions is required to exercise
his own judgment and is not amenable to any direction or orders of
his superiors. That is, the essence of our judicial system. The
Supreme Court had occasion to consider this aspects in a matter
relating to taxing statute and remarked that when the decision of
assessing authority is controlled by the directions given by others
may be his superiors, it is misnomer to call their orders as
judgments because the orders would essentially be the judgments
of the authority that gave the direction and which authority had
given the judgment without hearing the aggrieved party.

(c) Enquiry officer should also decide on the basis of his own
judgment.

The principle that a quasi-judicial authority should decide on the

basis of his own judgment also applies to departmental enquiries.
Where in the matter of imposing punishment or even determining
the guilty of the delinquent government servant, the disciplinary
authority took into consideration some directives or instructions of
which the concerned government servant had no notice, it must be
held that the order of dismissal passed in such circumstances was
vitiated by violation of the principles of natural justice and on the
ground of bias. It would reduce the independence of disciplinary
authority to a force if the action to be taken is predetermined or is
conditioned by some extraneous considerations.
 116

(d) Reasons must be given by the enquiry officer in the report.

The value of the enquiry report lies in the reasons which are given
by the enquiry officer in support of his findings and even if the
report is given but there are no reasons then the enquiry will be
defective. Where the orders by administrative authorities are
quasi-judicial in nature then such orders must be speaking orders
and the absence of reasons would be fatal to their legality. 83 The
value of reasoned opinions as a check upon arbitrary administrative
power will be readily evidenced.

(e) The reasons given by the enquiry officer should not be sketchy.

Though the enquiry officer need not give elaborate reasons, yet the
enquiry report should contain sufficient reasons to find out the
grounds on which the conclusions of enquiry officer are based.
When the enquiry officer did not mention the evidence or discussed
the evidence regarding defence but only stated that the statements
were contradictory without showing how they were so, the enquiry
is defective.84 The report of enquiry officer stated only that “there
is no reason to disbelieve the evidence of the management
witnesses and the witnesses of workers were interested and their
evidence fabricated”, without disclosing how it is so and it is stated
that all other relevant points will be explained personally.

Zhandu Pharmaceutical Works v. Workmen (Mah Gaz., dt. 14.7.1966, p,2217 (LC)
Josheph v. Superintendent of Post Offices, Kottayam, (1961)1 LLJ 256 (Ker HC).
Jeogera Colliery v. Workmen (Gaz., of India, dt.26.3.1966, p.827 (IT)).
 117

REPORT SHOULD BE BASED ON RECORD :

(a) In writing the report the enquiry officer should not use his own
knowledge.

The decision of the enquiry officer should be based upon the

enquiry records and he should not import his own knowledge of
things while writing the enquiry report. The reason is that when a
judge draws upon his own knowledge of the incident and bases his
findings upon it then there is no opportunity to the persons charged
to cross-examine him and he is, therefore, prejudiced.

(b) The Findings of the Enquiry Officer should not be arbitrary or

based on extraneous considerations.
If an order is arbitrary then there is no fair determination of the
question by g was*-judicial authorities and the principles of natural
justice are violated. The word ‘arbitrary’ means as an act done
capriciously made at pleasure without adequate determining
principle, non-rational, not done according to reasons or judgment.
The principles of natural justice are not exhausted by merely giving
show-cause notice because in that case after giving a show-cause
notice authority may as well decide according to whims and fancy.

(c) Enquiry officer should not consider the facts not on record of
enquiry.

In one case the enquiry officer took into consideration some

statements said to be made by the workman to some person even
when he was not examined. The enquiry officer was not justified in
relying upon the statement of a person who was not examined.
Similarly, when the enquiry officer relies upon the statement which
 118

was never made before him, it shows that he passed the order
without scrutinizing the record.85

(d) Enquiry officer cannot omit from consideration any material

on record.

It is the duty of the enquiry officer to consider all the material

which has been brought on record. A document which had been
brought on record could not be ruled out of consideration if it had a
bearing on the points in issue. The enquiry officer performing
gwasz-judifial duties is bound to consider materials on the record
and come to a fair finding.86 When the defence to the charge of
misappropriate was that there was no dishonest intention, then the
non-consideration of the defence by the enquiry officer would
violate the principles of natural justice.87

(e) Enquiry officer should not consider the events subsequent to

the incident for which an employee is charged.

The events which take place subsequently to the incident for which
an employee is charged are generally not necessary to support the
charge and they should, therefore, be ignored. For example, if an
employee is charged for habitual absence, habitual negligence or
similar other misconducts, then his subsequent absences or acts or
acts of negligence are not relevant to the charge as alleged against
him.

Ramshakal Yadav v. ChiefSecurity Officer, AIR 1967 MP 91.

C.P. Govil v Union of India, 1965 DLT 16 (DB).
Mahanand Bhaduri v. Asst. Superintendent, S.E. Rly 1974 Lab IC 1054 (Cal. HC).
(f) Enquiry officer not to give benefit of doubt.

The departmental action is not a criminal charge and, therefore, the

doctrine of benefit of dount is not applicable. The enquiry officer
is, therefore, under an obligation to arrive at a conclusion on facts.
When the defence was that he had given his joining report along
with the medical certificate five years back, then instead of
deciding this controversial issue the disciplinary tribunal cannot
hold him guilty on the point that in any case he ought to have
submitted the documents again because if he would have submitted
the documents again his earlier stand would have been prejudiced
and there might have been a break in his appointment.88

SCOPE OF ENQUIRY REPORT :

(a) The enquiry officer need not decide whether an act constitutes
misconduct.
The enquiry officer has to consider whether the act mentioned in
the charge-sheet has been proved or not. Whether the act amounted
to misconduct is not directly a matter for decision before the officer
holding the departmental enquiry. That is a matter for decision by
the officer deciding the question whether to impose a penalty.
(b) The enquiry officer need not decide what should be the
appropriate penalty.

The enquiry officer is not entrusted with the power of imposing the
punishment. His duties commence and end with finding the facts.
In other words, he is merely fact-finding authority.89 In the

Capsulation Services Pvt. Ltd. v. Workmen, 1969 ICR 144 (IT).

Abdul Rahim v.A.P.S. Road Transport Corporation, (1962) II LLJ 639 (AP HC).
 120

absence of rule or statutory provisions to the contrary, the enquiry

officer is not required to specify the punishment which may be
imposed upon the delinquent official. Sometimes the enquiry
officers do indicate the nature of the action that may be taken
against the delinquent official but that is outside the scope of
enquiry and is not binding on the punishing authority. It is for the
punishing authority to arrive at a tentative conclusion and to
propose the appropriate punishment and its powers are not
circumscribed by the proposal as to punishment made by the
enquiry officer which he was not required to make.90

WHEN FINDING IS OUTSIDE THE SCOPE OF THE CHARGE :

(a) Enquiry officer should not give a finding outside the scope of
the charge.

The scope of enquiry is limited to the charges as mentioned in the

charge-sheet and although the evidence led during enquiry
proceedings was capable of showing that some additional
misconduct is committed, yet the enquiry officer should realize that
it is not for him to consider that additional evidence when
recording his findings. The reason is that if he records a finding on
extraneous matters then it is likely to influence the punishing
officer while passing the order which, in the circumstances, will
violate the principles of natural justice.91

State ofAssam v. Bimal Kumar, AIR 1963 SC 1613: (1963) I LLJ 295.
Harbanslal v. State ofPunjab. AIR 1962 Punj. 289.
 121

(b) Finding is not vitiated when it is given substantially on the

same charge as mentioned in the charge-sheet or on any
incidental or subsidiary matter.

If the charge-sheet is given for one misconduct and the worker is

found guilty of another substantial misconduct then the enquiry is
vitiated. But this cannot be said when a worker is found guilty of a
charge which though slightly different from the original charge, as
mentioned in the charge-sheet, remains substantially the same
charge. The enquiry report is also not defective when in finding an
employee guilty of a charge the enquiry officer also makes
observations on any incidental or subsidiary matter not amounting
to a separate misconduct or when aggravating circumstances are
considered to emphasize the seriousness of the misconduct.

(c) Effect when enquiry officer gives a finding which is not within
the scope of charge-sheet.

If a worker is charged for a particular misconduct and he is held

guilty of absolutely a different misconduct, then the proceedings
are entirely vitiated. If, however, he is found guilty of the
misconduct for which he was not charged along with another
misconduct for which he was not charged at all, then the question
arises whether the enquiry is vitiated. In so far as he was held
guilty of the misconduct for which he was charged, there is no
irregularity.

(d) If an employee is charged for more serious offence then he can

be punished for less severe offence of the same nature.

Sometimes it is difficult to distinguish between two types of

misconducts. In case of disobedience of orders, the disobedience
 may arise out of willful refusal to abide by the instructions or a
man may not follow a particular instruction out of negligence or
inadvertence. Sometimes a man may not deposit a certain amount
or make a certain entry and it is doubtful whether he is guilty of
dishonesty or more negligence. If in such cases an employee is
charged for graver misconduct out of the two possible
misconducts, then in that case if the graver offence is not
established he can be held guilty of the lesser offence without
making the proceedings invalid.

(e) If a worker is charged for minor misconduct then he cannot be

found guilty of graver misconduct.

We have mentioned in the preceding para that if a worker is

charged for graver misconduct then he can be punished for minor.
The converse of the above proposition is not correct. If an
employee is charged for minor offence and it is later on found that
he is not guilty of minor offence but major offence then in that case
he cannot be punished for major offence with which he was not
charged. A major offence may include minor offence but not vice
versa. It was held by Lord Halsbury that when a person is called
upon to answer a minor accusation and during proceeding accused
of another and graver charge and expelled, the invasion of the
respondent’s right most clearly transcends the class of irregularities
and calls for intervention of the courts.92

Andrew v. Mitchell, 1905 AC 78.

 123

(f) If an employee is charged with substantive offence he can be

punished for abetment in certain cases.

When a person is charged for substantive offence and not for its
abetment and the substantive offence is not established, then he
cannot be held guilty of abetment.93 The cases however, should
not be understood as laying down the proposition that in no case a
conviction for the offence of abetment can be substituted when a
person is charged for the substantive offence. If on the facts a
charge of abetment could be framed.

DRAFTING OF ENQUIRY REPORT :

(a) Specific finding should be given on each charge and in case of

each person.

In case of assault the enquiry officer should consider the case of

each of the charge-sheeted person separately and if he does not do
so the enquiry is vitiated, specially when the evidence against each
workman and in respect of any reason.94 When the evidence
against each workman and in respect of each of the constituents of
the charge is not sorted out, his findings about the guilty of each
workman are more conjectural than real and in the circumstances
must be held to be perverse.95 If number of workers are being tried
than the evidence in respect of each should be analysed.96
(b) Submission of joint report in case of separate enquiries.

Kishandas v. Emperor. AIR 1929 Nag. 325.

Graves Cotton and Co. Ltd. v. S.S.Navre, (Mah Gaz., dt.24.7.1969, p.3483 (IT))-
Management of United Sheet Metal Industries and Workmen (Delhi Govt. Gaz., Part V!
dt. 17.6.1965 p.253 (IT).
96
Bholanath v. Emperor. (1920) 21 Cri Li 442 (All).
 124

Submission of joint report in respect of three separate enquiries

does not invalidate the enquiry itself. When the explanation is that
evidence and the charges were more or less similar in the three
cases, then it is a possible explanation.97 If two cases are closely
connected then detailed judgment should be written in more
important case and references to recitals may be made in the
judgment of less important case. Care should be taken that
evidence which is only admissible in one case is not utilized in the
order. Individual case of each person should be considered and
there should be critical anslysis of the evidence against each.98

(c) Report should be signed by all members of the tribunal.

If the department or employer has constituted an enquiry

committee consisting of more than one person then all are required
to sign the report and if the report is not signed by all the members
then such report is not valid.99 Where disciplinary committee
consists of five members the report signed by only four of them is
invalid.100

(d) When past record can be considered by enquiry officer.

When at no time the charges framed in the past were decided and
they were considered for the first time on a subsequent occasion
then it cannot be argued that such past record cannot be taken into
account in arriving at a finding on the primary charge but can only

97
Katnini Engineering Company v. Workmen. (Cal Gaz., Part IC, dt.4.8.1966
98
Bholanath v. Emperor (1920) 21Cri LJ 442 (All.)
99
United Commercial Bank Ltd. v. Workmen, AIR 1951 SC 230.
100
P.K.Mukherjee v. Calcutta, AIR, 1955 NVC Cal 5905.
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be taken into account in deciding the punishment after the primary

charges are established.101

(e) The findings should be specific and not inconclusive.

When the enquiry officer writes the report then it is of utmost

importance that he should come to a conclusive finding of guilt. In
one case the enquiry officer observed that there is no
overwhelming evidence to conclusively prove dereliction of duty
but it cannot be completely ruled out. The disciplinary authority
agreed with this finding and passed the order of dismissal. It was
held that in the absence of clear and definite findings the
punishment cannot be sustained.102

FORWARDING PAPERS TO THE PUNISHING AUTHORITY BY

THE ENQUIRY OFFICER:

After finishing the enquiry the enquiry officer is required to send

his report to the disciplinary authority. Such report must be sent within a
reasonable time. Unexplained delay in finalisation of Departmental
proceedings vitiates the proceeding.103 If any occurs in finalisation of
disciplinary proceedings relating to the incident of ten years back the
charge memo liable to be quashed.104 When the rules required that the
result of departmental enquiry with the recommendations of the officer
will be placed before the competent authority, then it is not necessary for
the competent officer to consider the entire enquiry record. No objection

R. Venkatapathy v D.I.G., Police, AIR 1958 Mad 216.

Cyan Singh v. State ofH.P. (1974)2 SLR 226 (MP HC).
State ofAndhra Pradesh v. N.Radhakrishnan, AIR 1998 SC 1833.
Sitanath Satapathy v. State of Orissa & others, (1998)2 ATT (OAT) 350.
 126

can be taken that the record was not placed before him.105 When the
enquiry officer gave the finding on the same day when the enquiry was
held and the worker was dismissed on the next day and when the enquiry
officer and the manager both are situated at different places where even
the letters will take sometime to reach, then it does not appear that they
applied their mind to the case.106

IF ANY MISCONDUCT OCCURS DURING ENQUIRY

PROCEEDINGS THEN IT CANNOT BE DECIDED BY THE
ENQUIRY OFFICER IN THE SAME PROCEEDING :

A workman was dismissed not only on the charges substantiated

during enquiry but also for using intemperate and objectionable language
in his reply to the charge-sheet. This cannot be done because in such
cases an additional charge-sheet must be given to him.107 If the worker
indulges in riotous behaviour during enquiry proceedings, it is not for the
enquiry officer to seek directions from the Managing Director and to
follow those directions in the matter. The enquiry officer must use his
j AO

own discretion as to how to conduct the enquiry.

WHETHER COPY OF ENQUIRY REPORT SHOULD BE

SUPPLIED TO THE DELINQUENT EMPLOYEE ?

When the enquiry officer writes the report and submits it to the
disciplinary authority then the proceedings before the enquiry officer
come to an end. In the case of South Bengal State Transport Corporation
v. Sapan Kumar Mitra and others, the Supreme Court directing the re-

Bhubaneswar Chatterjee v Union ofIndia, 1969 Lab IC 215 (Gal HC).

Ballarpur Collieries v Workmen, (Gaz. of India, dt.31.1.1970, p.619 (IT)).
Kendriya Sarvodya Sahakari Sangh, Jaipur v.Industrieal Tribunal, AIR 1968 Raj 33.
Ranbaxy and Co. Pvt. Ltd. v. Workmen. (Delhi Govt. Gaz. Part VI, dt.28.3.1968, p.127 (IT).
 127

instatement of Employee in all cases on the ground if failure to supply

enquiry report reduces Rules if Justice to mechanical ritual. It has to be
considered as to whether any prejudice was in fact caused to delinquent
because of the said enquiry is non-supply.109 If the proceedings were
previously held by the enquiry officer in accordance with the principles
of natural justice then they do not become vitiated because copy of the
enquiry report was not supplied to the delinquent employees. The report
can be used by the employee only for attacking it in a superior forum and
not before the enquiry officer himself.110 In view of this if the copy of the
report is not supplied that does not violate the principles of natural
justice.111 In another case it has been decided that the Enquiry report
should be supplied to the delinquent employee prior to the imposition of
penalty. If it is not supplied it will violate Rule (15)(10) of O.C.S.(CCA)
Rule.112

APPRAISAL :

This chapter begins with role of enquiry officer in the domestic

enquiry. How workman can raise objection under different circumstances
in the appointment of enquiry officer has been discussed. The procedure
of appointment of enquiry officer, pre-requisites of a person to be an
enquiry officer, Presenting officer and his role in the enquiry has been
exhaustively dealt with. The procedure of communicating the notice to
the delinquent has also been depicted.

South Bengal State Transport Corpn. V. Sapan Kumar Mitra and others, 2005 I LLJ 1087.
Murphy India Ltd. v.S.J.Shettey, (Mah Gaz., dt. 10.8.1967, p.3233 (IT).
Workers of M/s Hyderabad Usha Works v. Management, (AP Gaz., dt.28.12.1967, p.2224
(LC).
112
Bharat Singh v. State of Orissa (1998) I ATT (OAT) 320.
 It also deals with the disposal of the case by enquiry officer.
During process of enquiry how the enquiry officer has to appreciate the
evidence has been elaborated. It speaks about the standard of proof in
departmental enquiry. The enquiry officer cannot hold any one guilty on
the ground of suspicion, surmises. The role of direct evidence and
circumstantial evidence in the enquiry has been dealt with. Some
guidelines for evaluating evidence like probabilities, departmental
officers acting as judge, weakness of the defence, motive and intention
etc., are dealt with. This chapter depicts the special consideration of
evidence like chance witnesses, a witness who is partisan, interested
witness, accomplice witness, trap witness and confession of the accused
are of special significance so far as the special consideration of evidence
is concerned.
In this chapter some rules have been dealt with for appreciation of
oral testimony. The enquiry officer should be well aware of the
interpretation of document. There is necessity give a report with reason
at the end of the enquiry and how the enquiry is vitiated in absence of the
report is clearly mentioned. The enquiry officer should act independently
without any bias and decide the case on the basis of his own judgment.
The report of enquiry officer should be based on record without applying
his own knowledge. Findings of the enquiry officer should not be
arbitrary and not required to omit any material on record and should not
give benefit of doubt at all in any circumstance to the opposite party.
Whether any act constitute misconduct, imposition of penalty is outside
the scope of enquiry report has been narrated. Sometimes also the
finding of the enquiry officer is totally outside the scope of the charge.
Similarly the finding is not vitiated when it is given substantially on same
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charge and the effect of giving such findings have been narrated. The
enquiry officer has to follow the technique of drafting the report and
ultimately it should be signed by all the members of the tribunal and
forwarded to the punishing authority and a copy of the same to be
supplied to the delinquent employee. The due procedure of all these acts
have been depicted in this chapter nicely.